26 Pa. Super. 199 | Pa. Super. Ct. | 1904
Opinion by
The defendant entered into a written contract with Saar & Rosser, builders, to furnish the material for and construct a house upon land of which he was the owner. The contract contained a stipulation against liens, and was duly filed in the office of the prothonotary. Saar & Rosser ordered of the plaintiff company certain material, and one load of lumber was delivered, when the officers of the company discovered that the contract containing the stipulation against the filing of liens had been filed, and thereupon refused to furnish further materials. The officers of the plaintiff company notified the defendant, the owner, that they would not furnish to Saar & Rosser the material necessary for the construction of the building. The plaintiff offered testimony which if believed established that the defendant entered into an agreement with the representatives of the plaintiff that the latter should furnish the material for the construction of the building, as ordered by Saar & Rosser, and charge it to him, the defendant, “ on the credit of the building.” The plaintiff company furnished material, as ordered from time to time, which was actually used in the construction of the building, which they charged to the defendant, and for the balance remaining unpaid upon which they filed this lien. The learned judge of the court below was of opinion that the agreement between the plaintiff and the defendant did not constitute a new contract, nor was it a sufficient waiver of the covenant against liens contained in the contract between the defendant and Saar & Rosser, and accordingly gave binding instructions to the jury to find a verdict in favor of the defendant. The plaintiff appeals and assigns for error this instruction of the court.
The testimony produced by the plaintiff, if true, established a new and independent contract. It was not an agreement to
The judgment is reversed and a venire facias de novo awarded.