28 A.2d 323 | Pa. Super. Ct. | 1942
Argued April 30, 1942. The trial of this scire facias sur mechanic's lien resulted in a verdict for plaintiff. Prior to the issuance of the writ of scire facias defendants moved to strike off the claim, asserting that plaintiff had not set forth the name of the contractor. Subsequently a stipulation was entered into, and the rule granted on defendants' motion was discharged. Plaintiff thereupon issued a writ of scire facias, defendants filed an affidavit of defense, and plaintiff replied with a replication. Defendants' motions for judgment n.o.v. and a new *320 trial were dismissed, and from the judgment entered on the verdict defendants have appealed.
The principal question, as submitted by the statement of questions involved, is whether the notice of intention and the claim as filed met the requirements of the Mechanic's Lien Act of June 4, 1901, P.L. 431, as amended,
As to the notice of intention to file a lien, section 8 of the Mechanic's Lien Act, Supra, 49 P. S. § 101, provides, in part, as follows: "Any sub-contractor, intending to file a claim, must give to the owner written notice to that effect, verified by affidavit, setting forth the name of the party with whom he contracted. . . . . ." With reference to the claim, section 11 of that act, 49 P. S. § 53, provides, in part, as follows: "Every person entitled to such lien shall file a claim, or statement of his demand, in the office of the prothonotary of the court of common pleas of the county in which the building may be situate, which claim shall set forth:
"1. The names of the party claimant and of the owner, or reputed owner, of the building, and also of the contractor, architect or builder."
In the notice and in the claim appellee averred that the person with whom it contracted was "either Liberty Housing Corporation, a corporation, acting through its officers, E.B. Hulley and Frank Pollock,1 and/or said E.B. Hulley and Frank Pollock, jointly and/or *321 severally." In their affidavit of defense appellants averred that "their contract for the erection of said building was in writing and was with E.B. Hulley and F. Pollick, jointly, and with no other person, persons, corporation or combination thereof." The written contract is in the record, and discloses that it was made between appellants and "E.B. Hulley and F. Pollick, trading and doing business as Liberty Housing Company." Appellants concede that the materials furnished by appellee went into their building.
Appellee has not objected to the scope of the question involved or to the propriety of the procedure upon which such question is based. We shall not decide whether the procedure adopted by appellants for a disposition of their contention, both as to notice of intention and as to the claim, was proper (see McVey etal. v. Kaufmann et al.,
It is also true of the instant case, as was said in the opinion just quoted (117 Pa. Super. at page 249, 178 A. at page 351), that: "It would be idle to suggest that the owner of this building, from an inspection of the paper filed, would not know the person alleged to be the contractor."
There remains to be considered the assignments upon which the argument for new trial is based. We have examined all of them, and they do not merit extended discussion. These relate to rulings on testimony which, in most instances, was hearsay or irrelevant to any issues raised by the pleadings. In no instance was there any reversible error.
Appellants complain also of a portion of the charge of the court as to the inferences that might be drawn by the jury concerning the relationship between Hulley and Pollock and the Liberty Housing Corporation. No argument has been submitted which convinces us that appellants were harmed thereby.
The record reveals no error which would warrant us in granting a new trial. All the assignments of error are overruled.
Judgment is affirmed.