13 Pa. Super. 7 | Pa. Super. Ct. | 1900
Opinion by
The plaintiffs filed a claim for the payment of the sum of $85.50, in which they aver that the said sum, being a debt contracted for a certain kind of building material known as terra-cotta, was “ .... at the request of Charles Bishoff & Company and Stephens & Company, continuously within the six months last past furnished to and supplied for and towards the erection and construction of and on the credit of the said building at the times and in quantities in the annexed bill of particulars mentioned.” The bill of particulars annexed to the claim is as follows:
25 ft. of rail and 48 closures, .... $35.00
85 ft. of moulding,......30.00
1|- panel and I moulding, .... 15.00
16 ft. of coping, 4// X 6",.....5.00
2J ft. of coping,...... .50
$85.50
Campbell and Bishoff were the promoters of the building operation and had had former business transactions with the plaintiff. In July, 1895, Campbell & Company requested Stephens & Company to submit estimates for terra-cotta as described in plans at that time exhibited and which had been used in a former operation. In October following, Stephens & Company received from Campbell & Company working drawings for this terra-cotta, and tendered a contract at the price or sum of $4,400 for all of the terra-cotta work required in the erection and construction of the seventy-seven houses. Henry G. Stephens, for the plaintiff, testified on the trial that at the time this contract was submitted for the signature of Campbell & Company, he was informed by Campbell, who spoke for himself and partner as promoters and as an owner of the title, that “ he could not sign the contract, not having secured his bondsmen ; that he did not have his negotiations finished yet with the trust company; that he had made arrangements and they had not carried, and that he was negotiating with another trust company; but if you will go on with the work I will pay you this money on the terms stated and agreed on by us.” He further testified that, “ We had no signed contract, we started to work at once. It was to be a rush job and we were to get the work out. It was finished the 19th day of December, 1895.” On April 8, 1896, the plaintiff received notice from Bishoff & Company to make delivery of terra-cotta for six houses which they were pushing through ahead of time. This order was filled and the material for these six houses was independent of that for which this lien was filed. Soon thereafter and before any further deliveries were directed or made, Stephens & Com
It is admitted that none of the terra-cotta was used in the buildings. A verdict in the plaintiffs’ favor was returned by the jury and subsequently a motion for judgment non obstante veredicto was overruled by the court, and the defendants bring this appeal.
There is some conflict in the evidence as to the acceptance of the terra-cotta for the six houses, but it does not affect the decision of this case. The testimony of the plaintiffs shows that at the time of accepting the order for terra-cotta a most impor
The fact that the material was made away from the premises is not important; if the work was done for or on the credit of the buildings, the place where it was done can make no difference: Singerly v. Doerr, 62 Pa. 9.
The right to recover from Campbell & Company under the contract of July and October, 1895, is not disputed. The terms of the mechanic’s lien statutes must be complied with in good faith in order to give the claimant the preference over other liens; and we feel that, as the plaintiffs have made their own case, they have not brought themselves within the rule of any decided case. Plaintiffs cannot, under the guise of the me
The assignments of error are sustained.
The judgment is reversed and is now entered non obstante veredicto in favor of the defendants.