National Supply & Construction Co. v. Fitch

55 Pa. Super. 212 | Pa. Super. Ct. | 1913

Opinion by

Henderson, J.,

The plaintiff was a subcontractor and furnished material used in the erection of the defendant’s house. The principal question in the case is, was the preliminary notice of the intention to file a lien, given to the husband of the defendant, sufficient to charge the latter. The contract was in the name of the husband and the plans and specifications exhibited to the plaintiff as a basis for its bid on the material desired were also in the name of the husband. The evidence shows that Mr. Fitch had charge of the business for his wife and acted for her in procuring the contracts and looking after the completion of the building. The plaintiff had no knowledge that Mrs. Fitch owned the property apart from the constructive notice arising out of her recorded deed. The evidence we think brings the case within the provisions of the fourth section of the act of June 4, 1901, P. L. 431, which provides that if an owner knowingly permit any person acting as if he were the owner to make a contract for which a claim could be filed, without objecting thereto, he shall be treated as ratifying the act of such person acting as if he were the owner, in which case the claim may be filed against the real owner with the same effect as if he had made the contract. There was also some evidence of the ratification defined in the same section. She was about the premises, from time to time and had notice that the plaintiff was furnishing material for the construction of the house. No notice of repudiation was given to the plaintiff nor was any such notice posted on the premises, and if the facts were as alleged an inference of ratification might be drawn by the jury. The case is unlike Miller v. Fitz, 41 Pa. Superior Ct. 582, in this respect. The lien there was not filed against the owner. The effort was to substitute a new party and to’ create a lien by such substitution. This manifestly could not be done and the decision in the case was in strict accordance with the provisions of the statute, but the lien here was entered against the real owner. A preliminary notice was given to the husband, but if he acted as if he were the owner in signing the contract and procuring the specifications and superintending the construction of the building the notice to him would be sufficient if the work was done in ignorance of the fact that the wife was the owner and the action of the husband was not repudiated when notice was brought home to the appellant that the material was being furnished by the subcontractor.

There was a substantial compliance with the requirements of the act in respect to the form of the notice as is shown in Willson v. Canevin, 226 Pa. 362. The plans and specifications were not attached to the notice, but they were in the possession of the owner and she had therefore full notice of their contents. We regard the notice as sufficient to inform the defendant of the nature and extent of the plaintiff’s claim and we are unable to see that she was in any wise prejudiced by the alleged deficiency therein. The argument of the learned counsel for the appellant has not satisfied us that the judgment should be disturbed.

Judgment affirmed.