252 Pa. 60 | Pa. | 1916
Opinion by
Josqph McCall, Jr., one of the defendants, being the owner of a house and lot at 6300 Butler street, Pittsburgh, agreed to sell the premises to James W. Murray,
The work on the building was completed by the plaintiff in September, 1912, and in November of that year he filed a mechanic’s claim against “James W. Murray and Joseph McCall, Jr., owners or reputed owners and contractors.”. An affidavit was filed that a written notice, signed by the plaintiff and directed to Murray and McCall, as owners or reputed owners, of the filing of the mechanic’s lien was served on October 6, 1912, on McCall “by leaving a true and attested copy thereof at his dwelling house at Madison avenue, Bellevue, Allegheny Co., Pa., with an adult member of his family and making known the contents thereof”; and that service of the notice was accepted by Murray’s attorneys on December 3.1912.
A scire facias was issued on the claim to which affidavits of defense were filed by Murray and McCall. In his affidavit of defense, Murray avers that he has a defense to the whole of the plaintiff’s claim and denies that he “was served with notice of the filing of the claim within one'month after the filing thereof, nor is there an affidavit of service thereof as required by the act of assembly relating to the filing of mechanics’ liens and regulating the same, and avers that more than thirty days have elapsed since the filing of said mechanic’s
On the trial of the cause, the court gave binding instructions for McCall, holding that the lien as to McCall’s interest was void; and the jury returned a verdict against Murray for the full amount of the plaintiff’s claim. The court sustained a motion by Murray for judgment non obstante veredicto on the ground that the acceptance of notice by his attorneys of the filing of the lien was not a service of the notice as required by the act of assembly, and that the filing of a copy of the notice of filing the lien with an endorsement of the ac
The plaintiff, appellant, has filed four assignments of error. The first two allege error in excluding testimony offered by plaintiff to establish McCall’s liability, the third, in directing a verdict for McCall, and the fourth, in entering judgment for Murray.
The plaintiff contends that McCall is liable because he was the owner of the real estate within contemplation of Section 4, of the Act of June 4, 1901, P. L. 431, which imposes liability upon an owner of real estate who shall knowingly suffer or permit any person, acting as if he were the owner, to make a contract for which a claim can be filed, without objecting thereto at the time. It is further claimed on the part of the plaintiff that McCall and Murray conspired together to improve their property and prevent O’Kane’s recovery against the legal owner, and that the testimony offered by the plaintiff and excluded by the court tended to show a conspiracy to defraud the plaintiff. We do not agree with the plaintiff’s position, and think that- the court correctly ruled the case on the trial by directing a verdict for the defendant, McCall. The Mechanics’ Lien Act of 1901 permits a-contractor to file a lien against the owner in fee or one having any estate or interest in the property who, by contract or agreement, express or implied, contracts for the erection of the structure or other improvement, and provides that the claim shall bind only the interest of the party named as owner of the property at the time of the contract, or subsequently acquired by him. Unless, therefore, a claimant brings himself within Section 4 of the act, the lien attaches only to the interest or estate in the premises of the person for whom the building is erected: Weaver v. Sheeler, 118 Pa. 634; Weaver v. Sheeler, 124 Pa. 473, and a sale
The plaintiff’s contention that McCall was an owner of the property in question within the purview of the fourth section of the Act of 1901 is without merit under the facts of this case. It is conceded that prior to the time Murray entered into the contract with the plaintiff for the improvement of the real estate that McCall had contracted in writing with Murray to convey to him, and that Murray was in possession of it under the agreement. The plaintiff admitted in Ms replication to McCall’s affidavit of defense and also testified on the trial, that prior to the beginning of the improvements he knew of the contract of sale between Murray and McCall. McCall, therefore, held the legal title while Murray, who was in possession, had an equitable interest in the property. The contract for the improvement of the property was made by Murray, as the written agreement discloses, and McCall was not a party to it. The mechanics’ lien law authorized the filing of a lien against Murray’s interest for any sum due for work done and materials furnished under the contract. It is, therefore, difficult to see how, under these facts, the fourth section of the Act of June 4, 1901, can apply. Murray, and not McCall, was the “owner” Avithin contemplation of the mechanics’ lien law. Murray had the right to improve the property, and it was expected he would do so when the purchase was made, as it was to be remodeled for saloon purposes. He had possession and McCall could not in
There is nothing in the case to warrant the contention of the plaintiff that there was any conspiracy on the part of McCall and Murray to defraud the plaintiff. The testimony, if admitted, would not have been sufficient to sustain his contention, under the facts of the case, of which the plaintiff admits he had full knowledge at the time he agreed with Murray to make the improvements. He knew the exact condition of the title, that McCall held the legal title, and that Murray had only an equitable interest under the contract previously entered into between the parties, and that his written agreement to furnish the labor and materials for improving the property was signed by Murray alone. He was, therefore, as fully cognizant of all the facts, relating to the improvement, as was either Murray or McCall. There was no deception or fraud practiced upon him, and the excluded testimony, as appears by the offer, would not have disclosed any fraud had it been admitted. The fact that McCall visited the premises frequently, inquired about the progress of the work, urged the contractor to proceed as rapidly with it as possible, and that he discussed with the contractor the changes to be made, merely disclosed the interest which McCall took in the improvement of the property, and not any fraudulent purpose on his part to mislead the plaintiff as to how the title was held or who had contracted with him
Section 21, of tbe Act of 1901, requires tbe claimant within one month after tbe filing of tbe claim to serve a notice upon tbe owner of tbe fact of tbe filing of tbe same, and to file of record in tbe proceedings an affidavit, setting forth tbe fact and manner of such service. This section also provides that a failure to serve tbe notice and file tbe affidavit within the specified time shall be sufficient ground for striking off tbe claim. Tbe notice of tbe filing of tbe claim was not given to Murray, but service of tbe notice was accepted by bis attorneys. Tbe plaintiff contends that a substantial conformance with this section of tbe statute is all that is required, and that the section will not be construed to be mandatory unless it would be inequitable to allow tbe lien to remain. This contention entirely overlooks tbe well established rules applicable to the interpretation of mechanics’ liens. Tbe language of tbe provision is clearly mandatory and if tbe claimant fails to serve tbe notice and file tbe required affidavit, within one month after tbe filing of tbe claim, it is ground for striking off tbe claim. A compliance with tbe provision is a prerequisite to tbe validity of tbe lien, and tbe failure to observe it invalidates tbe lien. Tbe purpose of the' provision is apparent. It is to protect tbe owner by furnishing him an opportunity while tbe facts are accessible to
Analogous provisions in statutes of other states authorizing the filing of mechanic’s claims have received a like construction: Street Lumber Co. v. Sullivan, 201 Mass. 484; Gross v. Butler, 72 Ga. 187; Conway & Co. v. Crook, 66 Md. 292; Peck v. Hinds, 68 Ill. App. 391; Ryan v. Kelly, 9 Mo. App. 396; Hannah & Lay Mercantile Co. v. Mosser, 105 Mich. 18.
We are of opinion that Section 21, of the Act of 1901, is mandatory, and that the acceptance of notice of the filing of the lien by Murray’s attorneys was not a compliance with the provision contained in the section, and, therefore, the learned court below was right in entering judgment in his favor non obstante veredicto.
The judgment is affirmed.