Dyer v. Wallace , 264 Pa. 169 ( 1919 )

Opinion by

Mr. Justice Walling,

This is an appeal by the claimant from an order striking off a mechanic’s lien. The owner, Richard L. Wallace, on June 21,1917, entered into a written agreement with the claimant, William E. S. Dyer, a mill engineer and architect, by which the latter was to prepare plans and supervise the construction of a wool scouring plant on a tract of land at Eighty-first street and Bartram avenue, Philadelphia. The plant was to embrace two warehouses, a power house, a steam piping system and other structures and equipment. The contract states that, “As compensation in full for services to be rendered by him the said Dyer shall be paid a commission of ten per cent of the total cost of the building construction and equipment.” On May 13, 1918, Mr. Dyer filed the lien here in question setting forth a copy of the contract and claiming $18,134.88, made up of items in the attached schedule. The lien sets forth, inter alia, “The said claimant......supervised the construction of the buildings erected and the installation of the machinery placed therein. The said claimant entered upon the performance of the said services on June 21, 1917, and was continuously engaged in the performance thereof from said date until the filing of this lien when the said Richard L. Wallace refused to permit the said claimant to continue the supervision of the unfinished portion of said work, in violation of the terms of the aforesaid contract. The lot of ground On which the several buildings hereinafter inore particularly described are erected, in course of erection, or at the time the services rendered were intended to be erected, to be used as hereinbefore stated together as one plant, is described as follows.” This is followed by a description of the buildings erected thereon, which states, inter alia: “The steam piping system extends from the boiler house to the several buildings which said system is now being in process of construction,” and, referring to warehouse No. 2, states: “The building to be erected in accordance with the plans and specifications prepared by the claimant.......was to be constructed of brick and timber similar to warehouse No. 1.”

The schedule or bill of particulars is indefinite; while it purports to be, “In account with Richard L. Wallace & Company,” the claimant’s name does not appear therein. It mentions ten per cent commission and computes it on forty-four items, in two groups; above them appears the only date, “September 7, 1917.” The four largest items are stated thus, “No. 1 Warehouse...... Henry E. Baton, $44,000; Power House, $15,363.87; No. 2 Warehouse Bid, $74,137; Piping System, $13,371.” The other items are equally and in some instances more indefinite. The claim includes some small items, amounting to $58.76, for alleged services and expenses, aside from the contract, for which there seems to be no. justification and which we will not discuss. The amount of the claim as above stated is the balance after deducting credits of $4,717.50.

The requisites of a claim under the Act of April 17, 1905, P. L. 172, are in the main similar to those under the Act of 1836; so decisions under the earlier statute are still applicable. We will state some principles and authorities which seem to bear upon the case.

A mechanic’s lien is a pure creature of the statute, and compliance with statutory requirements is necessary to its validity: Tenth Nat. Bank v. Smith Const. Co. (No. 1), 218 Pa. 581. It must state facts and not depend on inferences: Wharton v. Real Est. Investment Co. of Phila., 180 Pa. 168; Knelly v. Horwath, 208 Pa. 487; Rush v. Able, 90 Pa. 153, 160. A bill of particulars filed with the claim becomes a part of it: Am. Car, etc., Co. v. Alexandria Water Co., 215 Pa. 520; Schultz v. Sarver, 3 Penny. 411; and a rule to strike off a mechanic’s lien must be determined by the record: Burger v. S. R. Moss Cigar Co., 225 Pa. 400; Mesta Machine Co. v. Dunbar Furnace Co., 250 Pa. 472; Hiestand v. Keath, 229 Pa. 149.

The lien must set forth the amount or sum claimed to be due: Act of April 17, 1905, P. L. 172; Burrows v. Carson, 244 Pa. 6, 12; and so stated as to form the basis for a liquidation of judgment. It must contain at least one valid item: McCristal v. Cochran, 147 Pa. 225; Mercer M. & L. Co. v. Kreaps, 18 Pa. Superior Ct. 1.

The services of an architect in preparing plans cannot be made the subject of a mechanic’s lien (The Bank of Pennsylvania v. Gries, 35 Pa. 423; Price v. Kirk, 90 Pa. 47), except in connection with other services, rendered in the construction of the building: Trickett’s Law of Liens in Penna., vol. 1, sec. 9; Johnson’s Law of Mechanics’ Liens in Penna., p. 173. A construction of the Act of June 4, 1901, P. L. 431, that would extend its benefits to an architect, merely for preparing plans, would render it invalid as a special law for the extension of liens, or as changing the method for the collection of debts, in contravention of Section 7 of Article III of the Constitution of 1874; see Sax v. School District, 237 Pa. 68; Page v. Carr, 232 Pa. 371; Vulcanite Portland Cement Co. v. Allison, 220 Pa. 382.

A mechanic’s lien can be sustained only for work done or materials furnished and not for unliquidated damages for breach of contract: Deeds v. Imperial Brick Co., 219 Pa. 579. There, Mr. Justice Stewakt, in delivering the opinion of the court, says (p. 582), “By no sort of construction can a mechanic’s lien be made to embrace anything, whether labor or material, not actually furnished. Plaintiffs had a right to subject the building to a lien for the work they did upon and about its erection and construction; but a claim for anything beyond necessarily sounded in damages, and these can never be made the subject of a mechanic’s lien”; and see Stephens & Co. v. Campbell et al., 13 Pa. Superior Ct. 7. In each of those cases as here the claimant sought to embrace in his lien a claim for damages for breach of contract. In the present case appellant was discharged during the building operation, when work on some of the structures had not begun, while others were in process of construction and some possibly finished. According to the contract his commission was to be on the total cost of the building construction and equipment; but he fails to aver the total cost or in fact the cost of any part of it. Certain items are stated, but no averment that they represent the total cost or the actual cost of the respective structures. As the lien was filed when the plant was but partially constructed, its total cost could not then be known. This clearly appears in the largest item, “No. 2 Warehouse Bid, $74,137.” That does not show the cost of the building, and nothing had been done towards its construction, yet $7,413.70 of this claim is based upon it. This lien could be sustained only for work actually performed and the amount of that is not stated; admittedly but part of the entire work was done and we do not know what part as it blends the claim for work done with that for work not done, and, hence, cannot be sustained. Appellant might have filed a lien against the plant for the value of the work actually done (Linden Steel Co. v. Rough Run Mfg. Co., 158 Pa. 238; Safe Deposit Co. v. Columbia Iron & Steel Co., 176 Pa. 536; East Stroudsburg Lumber Co.’s App., 1 Pa. Superior Ct. 261), coupled with an averment that full performance of the contract on his part had been prevented by the owner; but what he seemingly attempted to do was to claim for a full performance while admitting that it had not been done. In assumpsit he might claim for work done and damages for breach of contract, but a mechanic’s lien cannot be sustained for the latter.

The most specific item is the one first above quoted, viz: “No. 1 Warehouse — Henry E. Baton, $44,000”; which, it is suggested, is sufficiently specific; but it is not averred that Henry E. Baton was the contractor for that building or that the sum stated was its cost. Such conclusion must be reached if at all by inference and not from averment. Neither do we agree with the suggestion that the averments as to the machinery placed in the power house are sufficient; for example, take the largest of those items, stated in the bill of particulars as, “Permutit Company......$6,570.00”; there is no averment that this sum was the cost of or connected with the Permutit Water Softener equipment mentioned in the body of the claim; and placing it in the bill of particulars in a separate group of items from the power house adds to the uncertainty. The lien cannot be sustained as a claim for work actually done, independent of the contract, as there is no averment of the value of such work.

While some averments standing alone might be sufficient yet we should consider the claim as a whole; for example, there is a general statement to the effect that claimant performed the contract on his part, but followed by a specific statement that he was discharged during the progress of the work and prevented from completing it, and we cannot ignore the latter averment. We are considering the lien as if filed by a contractor and not by a subcontractor.

Error is also assigned to the order of the court below refusing to allow an amendment of the mechanic’s lien in question. Section 51 of the Act of June 4, 1901, P. L. 454, 3 Purdon’s Digest (13th Ed.), p. 2504, provides that the claim, etc., “may be amended......upon petition for that purpose under oath or affirmation setting forth the amendment desired, that the averments therein contained are true in fact, and that by mistake they were omitted from or wrongfully stated in the particulars as to which the amendment is desired.” The appellant’s only averment in his affidavit to the petition for leave to amend is, “that the averments in the foregoing petition contained are true as he verily believes,” and the petition makes no allegation of any mistake in the original claim. As the affidavit fails to state that the averments in the petition are true in fact, or that there was any mistake in the original claim, the amendment was properly refused.

The assignments of error are overruled and the orders appealed from are affirmed.