Noar v. Gill ( 1886 )

Mr. Justice Trunkey

delivered the opinion of the Court, March 1st, 1886.

Had error been committed in the matters referred to in the first and second assignments, it could not be corrected, for neither assignment quotes the full substance of the bill of exception, or sets forth a copy of the bill, as required by rule XXIV. But it is plain that the defendant suiters naught by the omission. The fact that the book of original entries showed only a charge against the defendant personally is no reason for its rejection. It is immaterial whether the offer of the book was accompanied by an offer of other evidence, for if it was competent to show the debt alleged to be secured by the lien, it was admissible for that purpose. Even where the claim is by one who sold materials to the contractor, and the charges are against the contractor only, the book is competent evidence of the items and amount of the debt, and the plaintiff may show by other evidence the other facts which entitle him to recover. Presbyterian Church v. Allison, 10 Pa. St., 413.

This claim was filed on April 13th, 1883, for the last work done on the building, and the trial was October 22d, 1884. Had claims been filed by the roofer and tinsmith they could readily have been shown at the trial — had no claims been filed no liens remained. The second assignment is so devoid of merit that the defendant has put nothing in his paper book showing whether the offered testimony was pertinent, or improperly rejected.

The main question, and the one really relied on by the defendant, is presented in the third assignment of error, namely, whether there was evidence to warrant a finding that'the work and materials were furnished on the credit of the building. If so, the defendant’s point was rightly refused. Conceding that the book of original entries alone fails to show such credit, it by no means follows that the plaintiff was not entitled to a lien. The evidence is not printed, but at the argument the parties conceded that the claim was filed by the contractor against the owner, and was for an alleged balance due on the written contract and for extra work and materials; that the work and materials were furnished for and used in the construction of the building, the extra work having been ordered by the defendant; and that the defendant moved into the building soon as completed. An agreement was made that the cause should be tried as if scire facias had been issued and the general issue pleaded.

The statute declares that every.building within its operation “shall be subject to alien for the payment of all debts contracted for work done or materials furnished for or about the erection or construction of the saíne.” What is requisite to create the statutory lien for payment of the debt? Simply doing the work or furnishing materials for the construction of the building. The facts to be established are few, and are clearly stated in the statute. But the creditor may have done some act which bars his right, as the giving of sole credit to the contractor, or agreeing with the owner to waive the security of the lien. No rule of evidence requires the creditor to prove that he has done no act to annul his statutory security. If the debtor or owner of the building alleges that the claimant has done an act which annuls the lien, the burden of proof of such act rests on the owner or debtor. Of course, where a plaintiff in making proof of his right to a lien, shows that he did the work or furnished the materials on the mere credit of the contractor, or on a contract that he should not have the lien, the effect of such testimony against his right is the same as if it had been adduced by the defendant. If he cannot prove the debt without showing that he has no right to the security, he has no case, but to make a prima facie case he has only to prove the statutory requisites.

The question involved in this case has already been decided. It is unnecessary for the plaintiff to allege in his claim, or affirmatively prove, that the work was done on the credit of the building. It must be true as a fact that the work was so done, and such fact will be presumed where the plaintiff has' complied with all the provisions of the statute relating to the lien which he claims. To establish his right he must show a debt, and that it was contracted for work done or materials furnished for or about the construction of the building, and that the claim was properly made and filed in pursuance of the terms of the statute. Then the burden is on the defendant to prove any matter which he affirms by way of defence. Hommel v. Lewis, 104 Pa. St., 565. Prior decisions touching the point need not be noted, as they were carefully reviewed in that case by Justice Green. There, the materials had been sold to and charged in the plaintiff’s book of original entries against the contractor, and it was remarked that the mere circumstance that the materials were charged to the contractor would itself create no presumption that they were furnished on his credit only, though such circumstance would be some evidence to be considered with other evidence, if any, that the credit was given to the contractor. Here, the charge is against the owner of the building, and is consistent either with a personal credit or a credit on the security of the lien, but is no evidence that the security was released or waived.

The court rightly ruled that “any evidence that satisfies the jury that the work and materials were furnished for and about the erection or construction of the building is sufficient.” A portion of the argument demonstrates that the claim was not evidence, but it does not appear that the claim was submitted as evidence of anything. Nor does it appear that there was no evidence of the .fact involved in the ruling. Unless the facts set forth in the claim are admitted by the plea, or otherwise, the plaintiff must prove them, and we are unadvised of any inconsistent ruling at the trial.

Judgment affirmed.