Wolf Co. v. Pennsylvania Railroad

29 Pa. Super. 439 | Pa. Super. Ct. | 1905

Opinion by

Pouter, J.,

This is an appeal by the plaintiffs from an order of the court below making absolute a rule to show cause why a mechanic’s lien should not be stricken from the record. The plaintiffs were subcontractors, the lien set forth that the contract was made with Seeley, Son & Company, persons other than the owner, and, as required by paragraph 11, section 11, of the Act of June 4,1901, P. L. 431, stated “ when and how notice was given to the owner of an intention to file the claim.” The court below held the notice to the owner thus set forth in the claim to be insufficient, under the provisions of the 8th section of the act of June 4, 1901, and struck off the lien.

The allegation of notice to the owner was, in this case, essential to the validity of the claim, and if it appeared upon the face of the record that the notice given failed to meet the requirements of the section of the statute referred to, the lien was properly stricken off. “ A mechanic’s lien is purely statutory and a compliance with the statutory requirements is necessary in order to give it validity. There is no intendment in its favor. It must be self-sustaining and must show on its face that it is such a lien as the statute authorized the claimant to file. This has been the uniform course of decisions under former acts : ” Knelly v. Horwath, 208 Pa. 487.

The 8th section of the act of 1901 imposes upon a subcontractor who intends to charge the property of an owner the duty of not only giving that owner notice of such intention but, also, requires that he furnish that owner “ with a sworn statement setting forth the contract under which he claims, the amount alleged to be still due and how made up, the kind of labor or materials furnished, and the date when the last work was done or materials furnished.” “ Such notice and statement must be served at least one month before the claim is filed, and within three months after the last of his work was done or materials furnished, if he has six months within which to file his claim, and within forty-five days thereafter, if he has but three months-within which to file it.” These provisions are mandatory, compliance with them is a condition precedent to the right to file a lien. The time when the work was done is an important matter in dealing with mechanics’ liens; the lien must be filed within a fixed period after the last work was done or materials furnished, and the notice and statement must be served on the owner at least one mbnth before the claim is filed and within a definite time after the completion of the work. The provision of the statute that the owner shall not only have notice but that a sworn statement shall be served upon him setting forth “ the date when the last work was done or materials furnished,” is an essential requirement, and failure to comply with it is fatal to the validity of the claim. The subcontractor has three months, or forty-five days as the case may be, within which to obtain the information which he must include in his sworn statement to the owner; he ought to be able within that time, if ever, to ascertain definitely when he did complete the work or furnish the last materials for which he seeks to hold the owner liable. The statute assumes that one who seeks to charge the property of another, with whom he has no contract relation, knows, or will within the period fixed be able to ascertain, the dates when he furnished the materials or did the work, upon which his claim is founded, and it expressly requires that he shall inform the owner as to the date of the last item. The notice and sworn statement served upon the owner in this case did not pretend to definitely state the date when the last materials were furnished, but left that whole question open by setting forth that, “ the last materials therefor were delivered on or about July 30, 1903.” The notice and sworn statement were served on October 21, 1903, almost three months after July 30, and there was no attempt to explain why the date of the last item was thus left indefinite. If the claimants furnished the materials on the credit of the building they ought to have been able to inform the owner when the delivery was made. It is important in determining the rights of the parties under mechanics’ liens that the date of the last item of a claim shall be definitely fixed. The statute expressly requires that the claimant shall, under the sanctity of an oath, inform the owner as to that date. A notice which, without satisfactory explanation, leaves that date uncertain fails to meet the statutory requirement.

The order of the court below is affirmed.