217 Pa. 367 | Pa. | 1907
This was not a case for a summary judgment. As said by the learned judge below “ the defenses set up are numerous and somewhat confused,” but it is by no means clear that several of them do not raise questions of fact as well as law that require a jury; as, for example, whether the machinery in question is a proper subject of mechanic’s lien, and whether it was furnished on the credit of the building or on the personal credit of the purchaser. While it is true, as the court remarked, that a creditor may have more than one lien for the same debt yet a sale of materials on personal credit, either of the owner or the contractor, is some evidence at least of a waiver of the lien under the mechanic’s lien law, and raises a question of fact for a jury : Presbyterian Church v. Allison, 10 Pa. 413; Barclay v. Wainwright, 86 Pa. 191; Hommel v. Lewis, 104 Pa. 465; Green v. Thompson, 172 Pa. 609.
But we need not consider any of these matters in detail now, as there is one defect fatal to the judgment. The defendant paid for the machinery (whether absolutely or conditionally being in dispute) by negotiable notes, and the affidavit sets out that these notes, in violation of the agreement, have passed to bona fide holders for value. On this point the learned judge below said, “ the counsel for plaintiff produced the notes at bar as evidence that they were still in the hands of the plaintiff. If these notes are deposited with the prothonotary before any execution process issues on the judgment that is hereby allowed to be entered, the defendant will be fully protected. The court can then control the use of the notes so that they may not be used to the prejudice of the defendant, and at the same time the court can make any subsequent order in reference to the notes that justice and equity may demand.” This, however, was going outside of the record in an inquiry into the facts at a stage of the case where such inquiry was not permissible. For purpose of judgment the affidavit must be accepted as verity : Columbia Nat. Bank v. Dunn, 207 Pa. 548.
Judgment reversed and procedendo awarded.
