Chapman v. Faith , 1902 Pa. Super. LEXIS 4 ( 1902 )

Opinion by

Rice, P. J.,

In the case of Hoatz v. Patterson, 5 W. & S. 587, decided in 1843, followed by Haley v. Prosser, 8 W. & S. 133, decided in 1844, the Supreme Court held, that the mechanic’s lien law of 1836, did not authorize the filing of a lien by one who by special contract undertakes to furnish all the materials and erect a house or other building for a certain sum. To meet these decisions, the legislature declared in the 5th section of the Act of April 16, 1845, P. L. 538, that the “ provisions,” evidently referring to all the provisions, of the act of 1836, “ according to the true intent and meaning thereof, extend to and embrace claims for labor done and materials furnished and used in erecting any house or other building which may have been or shall be erected under, or in pursuance of any contract or agreement for the erection of the same, and the provisions of said act shall be so construed.” Nothing can be clearer than that the only change of the law made by the act of 1845, was to extend the right to file liens to contractors. Upon this subject Mr. Justice Strong said: “The act does not undertake to change either the form or the substance of the claim filed, or to relieve the claimant from the conditions which the act of 1836 made essential to the validity of his claim. It was passed to change the law as declared in Hoatz v. Patterson and Haley v. Prosser in which cases it had been ruled that one who, by special contract, undertakes to do the work or furnish the materials of a building, was not within the purview of the mechanic’s lien law, and was entitled to file no claim. It had no other object: ” Russell v. Bell, 44 Pa. 47. We repeat upon the authority of that case, if the citation of a decided case is needed for so plain a proposition, that no change whatever was made in the provisions of the act of 1836, relative to what must be set forth in the claim. One of those provisions is that every claim must set forth: “ Second. The amount or sum claimed to be due, and the nature or kind of the work done, or the kind and amount of materials furnished, and the time when the materials were furnished, or the work was done as the case may be: ” Section 12. But while this section applies as well to claims filed by contractors as to claims filed by subcontractors and materialmen, the cases decide, and for good reasons, that what is a substantial and sufficient compliance with its requirements by the former is not by the latter. In the former class of cases it has been held, that work done and materials furnished under a special contract with the owner for a stipulated sum need not be itemized in the claim. Each party has knowledge of the claim under it, and the reason for furnishing particulars does not exist. “ A mechanic who makes such a contract and completes it, seldom keeps an account of every portion of the materials he uses or the work he does; nor is there any occasion for it. He is to complete the house according to his contract, and he is to be paid a stipulated sum. In this case it is of no consequence either to the owner or the public, that he should state the number of cubic yards dug for the cellar, the number of perches of stone built, or the number of boards used. He states what is equally useful under the words of the act, his contract: ” Young v. Lyman, 9 Pa. 449. So in Lee v. Burk, 66 Pa. 336. Mr. Justice Sharswood said: “ The reason for requiring these particulars to be furnished does not exist in the case of a special contract for a round sum of money. Cessante ratione cessat et ipsa lex.”

The ruling in Young v. Lyman, has been followed in all subsequent cases of the same class, and has been distinctly recognized in many other cases in which the general question was under consideration. In a very recent case, Mr. Justice Mitchell said : “So in the present case if Norton was in fact the owner, his contract with plaintiff for a lump sum was valid and would sustain the lien. The plaintiff should be allowed to so amend his claim of record as to enable him to prove the facts, if they are as be avers: ” Bohem v. Seel, 185 Pa. 382.

On the other hand it has been repeatedly held, “that a subcontractor must specify the items of his claim ’ for work or materials, and that a lumping charge for either does not satisfy the requirements of the statute and should be stricken out on motion : ” McFarland v. Schultz, 168 Pa. 634. The other cases cited by the appellee’s counsel in support of this rule are: Russell v. Bell, 44 Pa. 47; Lee v. Burk, 66 Pa. 336 ; Gray v. Dick, 97 Pa. 143 ; Brown v. Myers et al., 145 Pa. 17; Wharton v. Real Estate Investment Company, 180 Pa. 168; Lee v. Exeter Club, 9 Pa. Superior Ct. 581; to which should be added, Shields v. Garrett, 5 W. N. C. 120. In determining whether the rule as stated in these cases is applicable and controlling in the present case, it is important to bear in mind the reasons given for the rule. For it is to be noticed that the Supreme Court has not based the distinction between a claim filed by the contractor and a claim filed by the subcontractor, on the mere words of the statute, and could not do so. It has gone upon the theory that there is a distinction growing out of the differing relations of the two kinds of claimants to the owner, which may be recognized by the courts in determining whether the claim gives the information to him and the public that the statute intended it to give. If the true theory is, that the words of the statute leave it permissible to recognize such distinction, then the two classes of cases are not in conflict, but in each the statute is enforced according to its true spirit and intent. If, however, that is not the true theory, it is difficult to see upon what principle the ruling in Young v. Lyman and the cases which follow in its lead can be sustained. The pertinency of these preliminary observations will appear after the facts are stated.

The claimants aver that they agreed to furnish all the brick and terra cotta necessary to fully complete the building for the sum of $3,495, according to the plans, specifications and detailed drawings (now in the possession of the owners) prepared by the architects employed by the owners, and to the entire satisfaction of the architects; that they furnished all the brick and terra cotta, and did all the necessary work to fully complete the building; that they furnished 15,000 Pompeian bricks, 15,000 stretches, 175,000 bard bricks; that they furnished all the terra cotta in accordance with the plans and specifications above mentioned, also flue lining and other materials such as lime, sand, mortar, etc., necessary to lay the brick and terra cotta work; also, that they furnished necessary bricklayers and laborers required to lay the brick and terra cotta work, the time required in the laying of said brick and terra cotta work being 1,470 hours. They further aver that the materials were furnished and the work was done “ continuously within six months last past, to wit: between December 15,1897, and June 15,1898, both inclusive,” and that after deducting the payments made by the contractor, the balance due them was $902.25. We do not think it can be said that this claim wholly fails to set forth the “ nature of the kind of work done or the kind and amount of materials furnished.” Not only are they for the most part specified in the claim, but it is expressly averred that they were the nature or kind of work and the kind and amount of materials called for in the plans, specifications and drawings which were at the outset, and still are, in the possession of the owners of the building. But it must be conceded that, if the rule enunciated in the cases last cited applies, the claim is defective in that it does not set forth the cost of each item of material supplied and of each item of work done. Does the rule apply? The facts which distinguish this case from those cited are set forth in the claim. The owners employed a firm of architects as their agent “ to supervise the work of the contractor and subcontractors ” and “ to approve the estimates and contracts made by the said contractor and subcontractors.” At the request of the contractor, the claimants examined the plans and specifications in the possession of the architects, and thereupon made an offer to furnish all the brick and terra cotta and to do all the bricklaying and terra -cotta work, “ in accordance with the plans and specifications in the possession of the architects.” This offer was accepted, and the contract on the part of the claimants performed. The fair inference is, that in their contract with Stewart, the principal contractor, the owners reserved the right to approve or disapprove the contracts made with others. If that was not the case, how could they appoint architects their agents “ to approve ' the estimates and contracts ? ” But be that as it may, they assumed to exercise that right, and in this particular case the claimants’ offer was made known to them before it was accepted, “ and they approved of the offer and the acceptance of the same.” Of course they did not thereby engage to become the paymasters, but having interjected themselves into the transaction between the claimants and the contractor, as doubtless they had a right to do, and having approved the contract, it seems to us that the claimants had a right to assume that the terms of the contract would not be questioned by the owners after the former had performed their part in good faith. This was plainly the meaning which they must have intended the claimants to ascribe to their act of approval. Such being the case the latter would naturally and properly suppose that it would not be necessary for them to keep an itemized account of the cost of every load of brick and of every piece of terra cotta furnished, and to set forth in their claim the specific date when each was furnished. The reasons given in the cases for requiring the claim to be itemized when the claimant is a subcontractor between whom and the owner no privity exists, are that the agreement between him and the contractor is not the measure of the owner’s responsibility; such a contract is not evidence of the sum which the owner ought to pay, nor of the amount of the claimants’ lien upon the building; of the nature and amount of his claim, the kind of work which he has done upon the building, the kind and amount of the materials which he has furnished, as well as the time when the credit arose, it is presumable the owner knows nothing because they have not dealt with each other; notwithstanding the subcontract, the owner is as much interested as he would be, had it not been made, in knowing the kind of work and materials with the amount of each which the subcontractor has furnished; for these reasons, it is of the highest importance that the owner should be informed by the claim filed as to the particulars of the demand, that he may be enabled to make the necessary inquiries to satisfy himself of its justice as a lien upon his property. .None of the foregoing reasons can be successfully urged in the present case for requiring greater particularity than has been observed in the claim filed. The owners had all the knowledge of the particulars of the demand which they would have had if the contract had been made directly with them, and if the lien is held good their building will be charged with the precise sum less payments, and that sum only, which they approved as a proper compensation for the work to be done and the materials to be furnished. If the case is not within the strict letter of the decision in Young v. Lyman, it is as clearly within the principle decided as was that case. This conclusion is in harmony with our decision in Brown v. Kolb, 8 Pa. Superior Ct. 418, a case closely resembling the present, and after a careful reconsideration of the question we see no reason for holding differently. See also McCune v. Hatch, a case decided by us in December last.

The judgment is reversed, the lien is reinstated and the demurrer overruled, with leave to the defendants to plead to the scire facias.