Northern Electrical Manufacturing Co. v. Columbia Brewing Co.

47 Pa. Super. 96 | Pa. Super. Ct. | 1911

Opinion by

Porter, J.,

The plaintiff appeals from an order of the court below striking off a mechanic’s lien. The ground upon which the learned judge of the court below based his action was that the notice given by the appellant to the owner of an intention to file this lien had not been served in time. The claim as filed averred that written notice of the intention to file the lien had been duly served upon the owner on October 27, 1908, and that it was so served is not questioned. Whether service upon that day was in time is, for present purposes, to be determined by the facts averred in the claim as filed, and not from matters outside of the record: Thirsk v. Evans, 211 Pa. 239; Burger v. Moss Cigar Co., 225 Pa. 400; Hiestand v. Keath, 229 Pa. 149. The eighth section of the Act of June 4,1901, P. L. 431, requires subcontractors to serve the owner of the building with written notice of an intention to file a claim within three months after the last of his work was done or materials furnished and the eleventh section of the same statute, as amended by the Act of April 17,1905, P. L. 172, requires that the lien, when filed, must set forth when and how service of such notice has been made upon the owner: Bametzrieder v. Canevin, 44 Pa. Superior Ct. 18. The court below held the averment of the claim as to the time of the service of the notice upon the owner to be sufficient and, for the purposes of the motion then pending, accepted as an “established fact the service of the notice on October 27, 1908. The court, however, was of opinion that the claim as filed failed to sufficiently aver any item for materials furnished or work done later than May 13, 1908, which date was more than three months prior to the date of the service of the notice, and for that reason struck off the lien.

The court in reaching this conclusion held that the last two items in the bill of particulars, which was embodied in the lien, were so defectively set forth that they must be stricken out and disregarded, and the striking out of these items left all the earlier charges in the bill of particulars subject to the objection that the notice was not served in time. The charges which the court thus held must be eliminated were (1) “ 1908, May 27th to August 12th, Cost of erection in the building at Shenandoah, Pa. $100.00” and (2) “September 3rd, To putting in new filler on ends of frames $2.00.” If these items stood alone, without explanation concerning them, the question here presented might not be without difficulty, but they did not stand alone and they were fully explained in the body of the claim. The plaintiff had attached to and made part of its claim as filed, the contract between it and the principal contractor, which was in writing. That contract and all the averments of the body of the claim are to be considered in determining whether or not the items, which the learned judge of the court below held must be stricken out, were sufficiently averred as matters constituting a lien and as of the time stated in the bill of particulars, and whether it sufficiently appeared from the averments of the claim that any work and materials, which were the subject of lien, had been done and furnished within three months prior to the service of the notice: American Car & Foundry Co. v. Alexandria Water Co., 215 Pa. 520. The claim was filed to secure a lien for the balance due for the construetion, erection and installation in the building of two -electric generators for light and power service. The written contract required the appellant, whose manufacturing establishment was in the state of Wisconsin, to deliver and erect these generators “at the plant of the Columbia Brewing Company, Shenandoah, Pennsylvania,” for the lump sum of 13,110. The mere finishing of the parts of these two machines at the factory of the plaintiff, in the state of Wisconsin, did not complete a delivery of the materials to the building or to the principal contractor, under the terms of this contract. The appellant was required not only to deliver the parts of these machines at Shenandoah, Pa., but he was required to assemble those parts so as to constitute two distinct and complete machines and install those machines ready for operation in the building of the brewing company. The erection and installation of'the electric generators, in the building of the appellee, was necessary to complete the contract, and the date of the completion of that work would be the time of the final delivery to the building. The claim set forth the written agreement to furnish the two generators for a lump sum and distinctly stated the undertaking of the appellant to erect the machines, in the building of the appellee, ready for operation. There was attached to the contract detailed specifications, which fully informed the owner of the building the precise manner in which the machines were to be constructed and gave all necessary information as to the materials of which they were composed, and the claim distinctly averred that the work was done in accordance with the contract. The statements of the claim embraced, perhaps, unnecessary details as to the manner in which the appellant proceeded to execute this contract; it stated that the pieces which when put together made up the component parts of the two generators, “with a field rheostat for each of them, being contained in five boxes of an aggregate weight of 22,303 pounds,” were shipped by prepaid freight from Madison, Wisconsin, on May 13, 1908. It averred that the prices for said separate pieces of the machines, “so far as the same can be separately stated being as follows (the dates for all the items except the last one being the dates of shipment and not the dates of actual delivery, nor indicating the time of the completion of the erection of the generators in the building) and then follows the bill of particulars, stating the several parts of which each machine was composed, and the estimated value thereof at the point of shipment, all of the dates of said items' being given as May 13, 1908. It thus clearly appears on the face of the lien that these dates are the date of shipment from the factory and not the date when the erection and installation of the generators had been completed at the building of the appellees. There appears in this bill of particulars an item, charged as of May 13, “Freight prepaid on the entire shipment as above $110.” Following all these come the two items which the court below held must be stricken from the lien. The item for the cost of erection of the machines in the building, from May 27 to August 12, would be subject to the objection that it was a lumping charge for $100, if it were presented as a distinct item of claim. This is not here, however, presented as a distinct item of claim; the purpose of its introduction was to clearly reveal to the defendants precisely what had been done under the lumping contract to furnish and erect two completed machines ready for operation. The final item “ 1908, September 3rd, To putting in new filler on ends of frames $2.00,” manifestly refers to the frames mentioned in the specifications which were a part of the. written contract. The claim distinctly avers that all the items in the bill of particulars, which necessarily includes the item in question, were furnished under the written contract, and the aggregate of the items set forth in the bill of particulars is $3,110, the exact amount of the contract price for furnishing the two electric generators. The claim avers that the contract for the machines furnished fixed the price at the lump sum of $3,110. The bill of particulars gives in detail the items of material and work furnished and the aggregate value of these various items corresponds with the lump sum mentioned in the contract. This gave all the information that the appellees needed to enable them to deal intelligently with the claim and protect themselves. The owner can readily ascertain, if he desires to know, whether or not the contract price was exorbitant and beyond the fair value of the materials agreed to be furnished: Willson v. Canevin, 226 Pa. 362. The machines were to be erected and were erected in the building at Shenandoah and whether the contract price was exorbitant would depend upon their value at that place, and the consideration of this question would necessarily involve what it would reasonably cost to transport the machines to that place and there erect them. The claim having sufficiently averred that the item of September 3 was furnished under the contract, it cannot be said to clearly appear that this allegation was not well founded, nor can it be confidently asserted that this work was not necessary to complete the contract. When a contract is made with a man about the business of his craft the usages of that trade enter into' and are a part of the contract. We frankly confess that we do not know the meaning of the term “filler on the ends of frames,” when used with reference to an electric generator. We cannot say whether it is necessary that the putting in of the filler should be deferred until the last thing before the machine is ready for operation, nor how the ends of the frames should be protected during the course of transportation and erection of the generator. Whether the introduction of this item in the bill of particulars was proper.under the contract, or was a mere subterfuge can only be determined by a jury. Independently of this item, however, the claim distinctly avers that the work of erection and installation of the generators was completed on September 3, 1908, and there is nothing upon the face of the claim to impeach this averment. We are of opinion that the court erred in striking off the lien.

The order of the court below is reversed, the lien is reinstated, and the record is remitted for further proceedings.