Stoke & Co. v. McCullough

107 Pa. 39 | Pa. | 1884

Mr. Justice Clabk

delivered the opinion of the court, October 6, 1884.

A mechanic’s lien wras entered by William Stoke & Co., the plaintiffs, for work and labor done, in the construction of a dwelling house for D. G. McCullough, the defendant, under the terms of a written agreement between the parties, dated May 2, 1879. The plaintiffs’ claim was for §4,562.50, the full contract price, and also for extra work to the amount of §570.95. It is admitted that the §4562.50 has been paid; the present contention arises out of the claim for extra work.

According to the agreement, all disputes concerning the value of “ extra work,” and “ work omitted,” were to be settled by a method provided therein, as follows:

“ Should any dispute arise, respecting the true construction or meaning of the drawings or specifications, the same shall be decided by the architect, and his decision shall be final and conclusive. But should any dispute arise, respecting the true value of the extra work, or of the work omitted, the same shall be valued by two competent persons, one employed by the owner and one by the contractor, and those two shall have power to name an umpire, whose decision shall be binding on all parties.”

On the 15th March, 1881, a scire facias issued upon the lien, and the parties having failed to agree, as to the value of the extra and omitted work, or to ascertain the value thereof, according to the method mentioned in the agreement, on the 31st August, 1881, further proceedings on the scire facias were “ suspended until after the event of an arbitration or attempt to arbitrate ” under the clause above quoted. Arbitrators were thereupon chosen, and their award was made 10th July, 1882, in the following form :

“We the undersigned arbitrators, chosen under and by virtue of section 5 of article of agreement, between above parties, do say that after being first severally sworn or affirmed to perform our duties impartially and with fidelity, under the provisions of said section 5 of article of agreement, we met the above, on the 19th day of June, 1882, and by continuance on subsequent days, and, after hearing the parties, their proof and allegations, in accordance with the purpose of our appointment, do award in favor of D. Gr. McCullough fifty-nine and seventy one-hundredths dollars, with fourteen dollars costs, being one half of costs of arbitration.

On the 24th July, 1882, upon the defendants’ petition, setting forth the finding of the arbitrators, the court awarded a rule upon tire plaintiff, to show cause why the mechanic’s lien should not be satisfied. An answer was filed, depositions taken on both sides, and the case fully considered upon the rule. Upon argument the rule was made absolute; this action of the court, summarily ordering the satisfaction of the lien, is the principal error assigned.

The lien was regular upon its face, at least no irregularity is alleged against it. If the claim had been substantially defective, the court upon special plea, demurrer, or upon mere motion perhaps, might have stricken it off. But the order of the court was here made fipon the proof of payment, a fact alleged on one side, denied on the other. The award may furnish evidence, proper under the plea of payment, but an award thus made is merely evidence, it is no part of the record ; it depends for its validity upon a variety of considerations which must appear by oral proof.

Our attention has not been directed to any general statute which invests the courts with power, summarily, to satisfy or discharge a mechanic’s lien, and we find no local statute applicable to such lien in Blair county. By the provisions of the Act of 27th March, 1865, Pamph. Laws, 52, authority was given to the several courts of common pleas, throughout the commonwealth, to direct satisfaction to be entered on such judgments, obtained therein, as should appear by the record to have been fully paid, under execution issued thereon ; and by the more recent act of 14th March, 1876, the same courts were authorized to decree the satisfaction of any judgment, in case of actual payment. The courts have always had power to strike off an irregular judgment, or a decree improvidently entered, but no power existed at the common law to strike off, vacate or satisfy a judgment regularly entered : King v. Brooks, 22 P. F. S. 363 ; Reynolds v. Barnes, 26 Id. 427; Horner v. Hower, 3 Wr. 126; Breden v. Gilliland, 17 P. F. S. 34. Until after the passage of the Acts above referred to no such power existed.

But a mechanic’s lien is not a judgment until judgment be entered upon it. The claim is a specific lien under the statute, and the court has no power over it, except in the form provided by statute. A scire facias is the legal means of its enforcement, and either party may oblige the other to come to trial. If no scire facias be issued, the defendant may by rule proceed as if a scire facias had issued. In the case at bar, however, a scire facias had been regularly served; whether or not the claim had been paid, and the debt discharged, was a question of fact, which could only be determined by a jury. The award, its validity and effect, are matters which can only be considered at the trial of that issue. They are not properly before us now. If we had the power we have not the means of determining the matters in controversy between the parties; the evidence, upon which the order of the court is based, is no part of the record, but in the suit still pending-all proper matters of defence can be properly pleaded or proven.

The order and decree of 28th March, 1883, is reversed and the mechanic’s lien is reinstated.