Prouse v. Stocker

74 Pa. Super. 55 | Pa. Super. Ct. | 1920

Opinion by

Linn, J.,

This appeal involves the construction of part of the Mechanics’ Lien Act of June 4, 1901, P. L. 431. Appellant was the contractor and appellee was the owner. The amount of the lien is $1,128.40. A rule was granted below to show cause why the lien should not be stricken off upon an allegation that the lien was “irregular and insufficient to bind the property” for four specified reasons, only one of which is now material, and that was stated as follows: “The charge of $400 is not the subject of a mechanic’s claim, inasmuch as a part of it without stating how much is for ‘making contracts with materialmen and contractors for the furnishing work and materials in and about the erection and construction of the’ defendant’s house and the balance for superintending the erection and construction.” The petition asked that the court “strike the said lien from the record or to strike out of said lien such items thereof as are not the proper subject of a mechanic’s claim against your petitioner’s property.” The claim stated “The nature or kind of work done, for which this lien is filed, is (a) that of assisting the owner and her architect, Richard C. Loos, in making contracts with materialmen and contractors for the furnishing of work and materials in and about the erection and construction of the hereinafter described structures, and of superintending the work of erection and construction of said structures;......” The claim alleged that on June 30, 1917, the parties orally agreed to that effect and that on July 16, 1917, claimant began performance of his undertaking and completed it on March 22,1918.

The learned court below struck out of the lien the item of $400 saying, “While it may be that the work in superintending the erection or construction is lienable, yet if the other part of the contract is not lienable, then inasmuch as it cannot be determined how much is payable for the part which is not lienable, the whole charge will have to fail......We do not think that the Act of 1901 intended to include as a beneficiary a person who advised the owner, with respect to contracts......”

One part of the contractor’s engagement was to superintend the erection and construction; the other part of his engagement was to assist the owner and the architect in making contracts with materialmen and contractors for work and materials for and about that same erection and construction which he had undertaken to superintend. Were both parts of his engagement superintendence or the furnishing of skill for and about the erection and construction within the meaning of the statute? It provides: “The word ‘contractor’ means one who by contract or agreement, express or implied,...... superintends the structure......or any part thereof; or furnishes.......skill or superintendence thereto ......or any or all of them, whether as......an architect, superintendent, builder......” According to the Century Dictionary, to superintend is “to direct the course and oversee the details (of some work, as the construction of a building)”; “to manage”; the words “overlook,” “control,” and “supervise” are synonyms; superintendence is doing the foregoing. To furnish “skill” is to furnish “practical knowledge and ability” (Ibid). The ordinary meaning of the words just quoted includes what the claim states the contractor in this case agreed to and did perform. It is immaterial that in stating the agreement to “superintend the work of erection and construction” the parties separately stated what already was fairly included in the term to superintend, i. e., assistance “in making contracts with materialmen and contractors for furnishing of work and materials in and about the erection and construction.”

Though “to direct the course and oversee the details” is included in the term to superintend, it is obvious that such direction and oversight may take place more advantageously, for example, if the material used be first approved by the contractor; or if he participate in the selection of the subcontractors, or if deliveries of material are made at times or in manner or otherwise as specified by the contractor instead of without that assistance, and that the ultimate end, i. e., the construction of the building, may be more satisfactorily accomplished if the contractor selected to superintend the work participates in determining those details as appears to have been the intention of the parties to this suit as expressed in their agreement. Such contractor in rendering the assistance specified “furnishes.......skill,” (supra) “immediately connected with the erection of the building, and deemed necessary to its satisfactory construction by the plaintiffs in error” (Bank v. Gries, 35 Pa. 423). The accepted definitions of the words of the statute show that both parts of the engagement of the contractor joined as they were in the contract in this case are within the terms of the statute.

All of appellant’s work, the subject of the $400 item, was immediately connected with the erection of the building quite as much as the work of the architect who furnished plans, and who was employed “to direct the execution of the same by the various mechanics” in Bank v. Gries, supra, and who was permitted to maintain a lien; it is not like the mere furnishing of a set of plans by an architect who does not supervise the construction of the building pursuant to the plans, as in Price v. Kirk, 90 Pa. 47, where in distinguishing Bank v. Gries, the court said that in the latter case “the architect was employed not only to make plans and specifications for the building, but to direct and oversee its erection in accordance therewith. His claim, therefore, was for work done about the erection of the building within the words of the law. The mere drawing of the plan and writing out the specifications is no more of this character than would be the work of an attorney in preparing the contract.” See also Bernheisel v. Smothers, 5 Pa. Superior Ct. 113; St. Clair Coal Co. v. Martz, 75 Pa. 384; Dyer v. Wallace, 264 Pa. 169, at 174.

The order is reversed, the lien reinstated to the extent that it was stricken off, and a procedendo awarded.