60 Pa. Super. 407 | Pa. Super. Ct. | 1915
Opinion by
Section 9 of the Act of June 4, 1901, P. L. 364, provides in regard to municipal claims: “Where claims are
The defendant at the trial offered tb prové that the notice required by section 9 had not been given to him by the use-plaintiff. This offer the court rejected. At the conclusions of the testimony, the defendant asked for binding instructions in his favor because there was no evidence in the case that the use-plaintiff served a written notice on the owner at least one month before the claim was filed, or his intention to file the lien in question, unless the amount due was paid. There had been no proof that such notice had been served. The court declined to instruct the jury as requested. The position taken by the court was that the defendant,, having filed his affidavit of defense could not, now, take advantage of any technical defense, but- had to stand trial on the merits, citing: Howell v. Philadelphia, 38 Pa. 471; Allentown v. Ackerman, 37 Pa. Superior Ct. 363; Lybrandt v. Eberly, 36 Pa. 347; Lewis v. Morgan, 11 S. & R. 234; Scholl v. Gerhab, 93 Pa. 346; Lee v. Burke & Glass, 66 Pa. 336.
The regularity of the lien is a question of pleading and the cases above cited undoubtedly show that any de
The third and fourth assignments of error relate to the court refusing defendant’s offer to show the negligent construction of the pavement which was the basis of the city’s lien. The defendant offered , to prove that the improvement made by the use-plaintiff was negligently made and not completed and that by such failure to construct _ the pavement, the defendant suffered damages. Philadelphia v. Bilyeu, 47 Pa. Superior Ct. 148, seems to rule this point. It was there held, following Pepper v. Philadelphia, to use, 114 Pa. 96, that owners of land are entitled to have the contracts for municipal improvements which are paid for by assessments on their lands substantially performed. The specific injury, however, must relate to the portion charged against their respective properties. We think the defendant should have been allowed to prove that the work for which he was charged was not properly done.
The next and last question raised is as to set-off. The use-plaintiff owed defendant certain moneys for stone purchased of him. He was willing at the trial that the amount found to be due should be deducted from the claim, but the court, although the claim of set-off was not objected to, refused to admit it. The municipal claim being in rem and the counterclaim being personal, it might be argued that under the defalcation acts, the one could not be set off against the other, but the rule has been relaxed. As was said in Hilbert v. Lang, 165 Pa. 439, “In general, in order to support a set-off there must be cross demands between the same parties and in the same rights, such as would sustain mutual actions against each other, yet wherever there is the practica
The assignments of error are sustained, the judgment is reversed and a venire facias de novo awarded.