Thomas v. Hinkle

126 Pa. 478 | Pa. | 1889

Opinion,

Mr. Justice McCollum :

The claim in this case was filed November 21, 1888, against a two-story building or wing, rough cast on the outside, attached to and adjoining a three-story stone dwelling situate on the northwest corner of Germantown avenue and Mount Pleasant street, in the city of, Philadelphia. It is for materials furnished by the plaintiff from February 12, 1883, to July 12, 1883, at the instance of Rex Hinkle, who was then the owner of the premises described in the claim. These premises were, September 24, 1883, sold and conveyed by Hinkle to Rachel Shields, who, when the scire facias was issued upon the claim, and was served on her as lerre-tenant, appeared and made defence to it. The learned trial judge instructed the jury to return a verdict for the defendant, but did not place on record his reasons for the instruction.

We do not find in the evidence any dispute as to the amount and value of the materials furnished by the plaintiff, nor any denial that they were used in the construction of the two-story building or wing mentioned in the claim. The plaintiff’s contention in the court below and here is defined by the following points which were refused:

1. The building against which the lien was filed was erected on a new foundation, two feet longer and three feet wider than the old one; two stories in height, rough cast, and of new materials, and the lien was properly filed and within the intendment of the act of 1886.

2. The evidence shows that an old frame building and one-story shed were removed, and on a longer and wider foundation, a new two-story rough-cast building was erected, which can be entirely shut off from the main building; and as the plaintiff’s lien was filed against the new building only, he has a right to recover thereon.

3. A lien can be filed against a new wing or addition to the main building as a new structure, per se, and it is immaterial what was on the ground before, if it has been removed and a new building erected thereon.

It is apparent from the evidence that the plaintiff’s effort was to prove that the materials furnished by him were used in the erection and construction of an addition to a main building, while the defendant sought to show they were employed in the alteration and repair of an old building. There is considerable evidence on this subject, but we think taken as a whole it fairly sustains the claim of the plaintiff that the materials were furnished for and used in the construction of an addition to the main building. This view of the evidence he contends entitles him to a lien under the act of June 16, 1836, and he cites and relies on Nelson v. Campbell, 28 Pa. 156; Lightfoot v. Krug, 35 Pa. 348; Pretz’s Appeal, 35 Pa. 349; Harman v. Cummings, 43 Pa. 322; Parrish’s Appeal, 83 Pa. 111; Long v. McLanahan, 103 Pa. 537. In Lightfoot v. Krug, the erection of a one-story, twelve by fourteen feet kitchen, as an addition to a two-story brick house, was held to authorize a lien under the act of 1836, which might bind the main building, and the case was said to fall within the rule established by Nelson v. Campbell. Pretz’s Appeal is to the same effect. Harman v. Cummings decided that a claim for alterations, repairs, and additions was valid, to the extent of the work done and material furnished in and about the erection and construction of the additions. Parrish’s Appeal, and Long v. McLanahan fully recognize, and approve the doctrine of these cases. They were all under the act of 1836, and they distinctly decide that a new wing or addition is an erection within its intendment.

But the act of August 1, 1808, applicable to mechanics’ liens in Philadelphia, is amendatory of the act of June 16,1886, and must be read into and construed as a part of it. As amended and applicable to the city of Philadelphia, the act of 1836 creates two kinds or classes of mechanics’ liens. The first class embraces debts contracted for work done or materials furnished for or about the erection or construction of a building; the second, debts contracted for work done or materials furnished for or about the repair, alteration of, or addition to the same. The liens thus given differ materially in their extent and qualities. Those in the first class relate to the commencement of the building, and are without limitation as to amount; those in tbe second class date from the filing of the claim, and are not allowed for debts less than fifty dollars. The claims in both classes must be filed within six months after the work shall have been finished or materials furnished, but.tbe liens are again distinguished by preserving those in tbe first class, if filed witbin the six months, aud denying to debts in the second class any lien, if the property is conveyed to a purchaser before a claim is filed.

It cannot be doubted that the amendment places all repairs, alterations and additions upon tbe same footing, and we think the case presented by the plaintiff is witbin it. The fact that the original act was deemed broad enough to include new additions does not interfere with this conclusion. “ Where there are in an act specific provisions relating to a particular subject, they must govern in respect of that subject, as against general provisions in oilier parts of the statute, although the latter standing alone would- be bread enough to include the subject to which the particular provisions relate. Hence if there are two acts, of which one is special and particular, and clearly includes the matter in controversy, whilst the other is general, and would, if standing alone, include it also, and if, reading the general provision side by side witb tbe particular one, tbe inclusion of that matter in the former would produce a conflict between it and tbe special provision, it must be taken that the latter was designed as an exception to the general provision: ” Endlich on the Interpretation of Statutes, § 216; Felt v. Felt, 19 Wis. 193; State v. Goetze, 22 Wis. 363; Crane v. Reeder, 22 Mich. 322. “ Where a general intention is expressed, and the act also expresses a particular intention incompatible with the general intention, the particular intention is to be considered in the nature of an exception: ” Dwarris on Statutes, 658.

We conclude that the right to a lien for the materials furnished in this case, was under and governed by the provisions of the act of August 1,1868, and that as the claim was not filed, until after the property was conveyed to a purchaser, no lien was acquired: Hoff’s Appeal, 102 Pa. 218.

The judgment is affirmed.