Warren v. Johnston , 33 Pa. Super. 617 ( 1907 )

Opinion by

Morrison, J.,

The questions raised by this appeal are the refusal of the court below to strike off a mechanic’s lien and granting judgment on a sci. fa. thereon for want of a sufficient affidavit of defense.

The appellee contends that the question of the refusal of the court to strike off the lien cannot now be considered. The counsel for defendant moved to strike off the lien and this motion was refused. This is not a final order or judgment from which an appeal will lie. In such case the defendant must wait until there is a final judgment before he can have the action of the court reviewed: “ An appeal does not lie from the refusal of the court to strike off a mechanic’s claim : ” Carter v. Caldwell, 147 Pa. 370. We, therefore, hold that the defendant is entitled to have the action of the court, in refusing to strike off the lien, reviewed.

The lien was filed under a written contract between the plaintiff and the defendant, owner, for the furnishing of the material and labor and construction of a dwelling house for the entire sum of $2,293. In our opinion, the lien is substantially in compliance with the Act of June 4, 1901, P. L. 431, with the exceptions to which we will refer hereafter. We think the court did not err in refusing to strike off the lien so far as it is within the provisions-of the written contract attached and filed therewith. The lien being .by a contractor on a contract with the owner for the furnishing of the material and labor and the construction of a dwelling house, “ a detailed statement of the kind and character of the labor or materials furnished, or both, and the prices charged for each thereof,” need not be set out in the lien: Sec. 11, par. 6, Act of June 4,1901, P. L. 431.

That the plaintiff did not have the specifications, or a copy thereof, is a sufficient answer to the objection that they should have been filed with the lien. In addition, the contract did not incorporate and make the specifications a part thereof: Knelly v. Horwath, 208 Pa. 487. Moreover, the plaintiff was entitled to amend the lien in this respect, which was done by leave of court under sec. 51 of the act of June 4, 1901, supra: Thirsk v. Evans, 211 Pa. 239.

But we hold that so much of the lien as is based on a verbal contract, to wit: stone wall, extra, $10.00 and graining house, $60.00, is bad, because it does not comply with sec. 11, par. 4 of the act of 1901 in that, “ A copy of the contract or contracts, if in writing, or a statement of the terms and conditions thereof, if any of them are verbal,” is not set forth in the lien. It is not pretended that the $10.00 and $60.00 items referred to are covered by the written contract, and if furnished at all, the contract or arrangement under which they were furnished should be set out: Knelly v. Horwath, 208 Pa. 487. Therefore, the order and judgment should be modified by striking out of the lien and the judgment those items as of the proper date so that the defendant will not be charged interest thereon. With this correction, and the amendment allowed by the court, we consider the lien valid and legal.

Now coming to the affidavit of defense: we consider it argumentative, vague, indefinite and evasive. With the exception of the $10.00 and $60.00 items it does not sufficiently set up and liquidate any damages so that the same can be set off against the plaintiff’s claim. As to its defects, we need only refer to the opinion of the learned court below and the affidavit and supplemental affidavit which speak for themselves. The plaintiff constructed ,the house and the defendant paid.him $600 before it was completed. Then two months after the defendant took possession of the house he paid plaintiff the additional sum of $500. The affidavits of defense furnish a striking example of a defendant laboring to set up a defense where none appears to exist.

The assignments of error are all dismissed, except the second, and the lien and judgment is modified by striking out the items of $10.00 and $60.00, as of the proper date, and as so modified, the judgment is affirmed.