221 Pa. 326 | Pa. | 1908
Opinion by
This was an action by scire facias sur mechanic’s lien against Frederick F. Faber, owner and contractor, and another as reputed owner. Faber defended as owner. The one issue of fact was whether Pagnacco, the claimant, had waived his right to file a lien. The original contract was with one Nyce, then the owner; and by that contract Pagnacco covenanted to complete the foundation, stone work, cellar walls, face stone work, rubble range work, porch floors and excavation and grounding required, for and in the erection and construction of the buildings, and expressly waived the right to file any lien therefor. Nyce becoming financially embarrassed after the work had progressed, was unable to complete the building operation. He withdrew therefrom and assigned his interest to Faber. At this time Pagnacco had furnished work and materials to the amount of $11,557.98, and had received in cash $7,931. Claiming that he had not received all that he was entitled to in cash, he declined to proceed further with the work. He testified that Nyce had told him of his assignment to Faber, and that he (Nyce) had nothing more to do with the operation. He further testified that he did not agree to resume work until after Faber told him that he (Faber) had become the owner, and that he would pay him. Plaintiff’s contention was that the work that was done there
Judgment reversed and judgment directed on the verdict.