134 Pa. 277 | Pa. | 1890
Opinion,
The plaintiff, Schroeder, was a sub-contractor under the principal contractor, Olmsted, for the execution of a part of the work of the construction of a house for the defendant Galland. In the contract between the owner and the principal contractor it was expressly stipulated that the building should be built, finished, and delivered over to the owner, “ free of all liens and encumbrances, or any claims whatever, that might arise under
The controlling question of this case is, can the sub-contractor file a lien for the work and materials done and furnished by him, notwithstanding the stipulations of the principal contract ? If he can, the owner, instead of paying $9,000 for the completed house, according to the contract, will be obliged to pay therefor nearly $11,000.
The plaintiff filed his lien as a sub-contractor under Olmsted, whom he described as contractor, and with whom he contracted. He says in his claim of lien: “ The name of the person with whom Conrad Schroeder contracted is mamed Charles Olmsted.” He also states that the name.of the owner is Anna M. Galland, the wife of B. Galland. He therefore knew that he was dealing and contracting, not with the owner, but with one who was a contractor for the construction of the building. The only connection between the owner and this sub-contractor was through and by means of the written contract between the owner and the principal contractor. He
A sub-contractor for construction is certainly bound to know the kind of building that is to be erected, the materials of which it is to be built, the price to be paid for it, and the manner and times of payment. He cannot, under a contract for the erection of a building at a cost of $1,000, furnish work and materials to the amount of $5,000. He cannot furnish wood as material for the erection of a building to be built of marble or stone or bricks. Nor can he furnish unsuitable materials, even of a kind demanded by the contract, and entitle himself to a lien therefor.
In the case of Harlan v. Rand, 27 Pa. 511, we decided that to entitle a material-man, who deals with the contractor, to have his lien, he must furnish materials suitable for the building and apparently adapted to it. There the contractor made a contract with a sub-contractor to furnish a heater of a new construction to heat the building. The sub-contractor employed the plaintiff, who claimed a lien, to do the work. The contract with the sub-contractor stipulated that if the heater did not answer the purpose of heating the building, it was to be removed at his expense. The claimant, who did the work, filed a lien for it, and this court held he was bound by the provisions of the contract with his employer, the sub-contractor, though he was no party to it, and rejected his lien. Lowbie, J., in delivering the opinion, said: “There are several cases that show that the material-man cannot justly charge the building for all the materials that he may choose to furnish on its credit, without reference to the quantity or quality needed. He must, in his supplies, regard the size and apparent character of the building-, and his lien cannot go beyond what these show to be reasonable: Odd Fellows’ Hall v. Masser, 24 Pa. 510..... And no one would think of saying that a material-man shall have a lien for materials furnished for a particular purpose, and which are unfit for it..... If they are furnished on the order of the owner of the house, of course this rule does not apply, for a man may pledge his own property for any kind of materials. But it is involved in the very fact of furnishing
Of course, it cannot be questioned for a moment that a subcontractor who undertakes the construction, in whole or in part, of a building, under a contract with the principal contractor, is absolutely bound by all the plans and specifications expressed in the original contract of the owner with the builder. He must conform to the original contract in all matters, and in the minutest detail, precisely as the builder would be obliged to do. It is most obvious that he cannot depart in any respect, either from the designs, the dimensions, the materials, the plans, shapes, and sizes, that are expressed in the original contract; and the reason is most manifest. He is the representative of the builder. He undertakes to perform the contract of the latter with the owner, either in whole or in part, and of course he must conform to that contract in every particular. It would be of no use for him to say that he did not know the particulars of that contract; he is bound to know them: it is a legal necessity arising from the fact that he has undertaken to do the work which his principal has engaged to do. He certainly cannot furnish pine wood for interior woodwork, when the owner’s contract with the builder calls for walnut, or cherry, or ash. He cannot furnish stone when the contract requires marble, or bricks when stone is designated, or one kind of stone when another kind is expressed, or wood instead of bricks. He cannot furnish a building of two stories when three are demanded by the contract, or of six rooms when ten are required. These conclusions are readily appreciated, and will be at once conceded. But to go further and into greater detail it must be equally plain that one who, as a subcontractor, agrees with the principal contractor to furnish ma
There is no hardship to sub-contractors in enforcing a provision prohibiting liens, against them, because they are bound to know, by necessity, all the terms of the contract made by their principal in any event, and they therefore know of the prohibition.
In an old case, decided many years ago by the district court of Allegheny county, Campbell v. Scaife, 1 Phila. 187, the same conclusion we have reached was expressed and applied. The decision is of no binding authority upon this court, but the'reasoning of the opinion is of such clearness and force that some of it may well be repeated here. The learned court says:
Judgment reversed.