Miller v. Bedford

86 Pa. 454 | Pa. | 1878

Mr. Justice Gordon

delivered the opinion of the court,

Were we to determine this case according to that of Hill v. McDowell, 2 Harris 175, Ave should be obliged to say that not only the claim filed but the proofs also, were sufiScient to sustain the lien in controversy, for, in that case as in this, the contract was, that the price of the work should be ascertained by measurement after its completion ; and, in that case as in this, the objection was made that as the contract was not for a fixed sum in gross, the lien was irregular for Avant of proper specifications.

The lien, however, under consideration has the advantage over that in the case above mentioned in that it is regular upon its face, inasmuch as it sets forth a contract under Ayhich the materials AYere furnished and the work was done, Avhich did not appear in the case of Hill v. McDowell, supra. The court, then, did right in refusing the motion to strike off the lien.

It was thought, hoAvever, that the contract, not being for a sum in solido, did not support the claim filed, and so judgment was entered non obstante veredicto, on certain alleged reserved points, for the defendant. What these points thus reserved AYere, the record does not show, and Ave must therefore assume that the judgment Avas entered without warrant: Ferguson v. Wright, 11 P. F. Smith 258. In that case it was held that a reservation, whether upon the whole testimony, the plaintiff was entitled to recover, was not good, as it furnished nothing to which the party might except in order to have a review; but the argument is a fortiori where the reservation is made upon no point whatever.

The judgment is reversed, and it is now ordered that judgment on the verdict be entered for the plaintiff.