223 Pa. 125 | Pa. | 1909
Opinion by
The claim filed in this case is that of subcontractors. A con
If the notice of the intention to file the lien was defective, the appellants did not, by pleading to the scire facias on it, waive their right to make defense on the trial that a condition of the right to file it had not been complied with. Though notice of an intention to file a lien must be given by a subcontractor to the owner of the building before a valid lien can be filed, the notice forms no part of it. All that need appear on the face of the lien is “when and how notice was given.” These are the words of clause 11, sec. 11 of the act of 1901; and in interpreting them we have said: “A copy of the notice need not be set out in the lien. Whether the form and substance of the notice are in compliance with the provision of sec. 8 are matters to be determined at the trial:” Thirsk v. Evans, 211 Pa. 239. The notice being no part of the lien, the only remedy for a defect in it is not, as counsel for the appellees contend, to move to strike it off, but defense may be made on the trial that there was no right to file it, though regular on its face, just as such defense may be made, if, as a matter of fact, the lien was filed too late or the labor or materials were not furnished. It is a substantive defense on a matter dehors the lien.
The sworn statement attached to the notice of the appellees
The assignments of error are sustained, the judgment below is reversed and is entered here for the defendants.