Grable v. Helman , 1897 Pa. Super. LEXIS 244 ( 1897 )

Opinoin by

Reeder, J.,

This is an action upon a sci. fa. upon a mechanic’s lien. The question for determination in the court below under the pleading was whether the building was an old or a new structure, there haying been no notice at the time the work was begun of an intention upon the part of the plaintiff to file a mechanic’s lien. A compulsory nonsuit was entered by the court helow upon the ground that the plaintiff’s proofs disclosed that there was not such a change of structure in the building as to constitute it a new building.

The building that was altered was a broom factory, afterward used as a carpenter shop, two stories high, without lining or plastering, stairways, partitions, halls or porch. The shop was altered by the plaintiff to a two-story six-room dwelling house, one end wall of the foundation being taken down, rebuilt with a chimney of three flues resting upon it, all the weatherhoarding taken off at one end and one half of it on the other end, and new weatherboarding put on, studding taken out, new ones put in, all tbe windows and door frames taken out, the windows interchanged, somé of the old openings for doors closed and new openings put in other places, panel doors with transoms over them being substituted for plain batten doors, the windows and door frames being trimmed with caps, and a porch with railing around it and steps with railing in front of the house, the entire inside walls partitioned, lathed and plastered, new floors in places, new stairways, cupboards, partitions, clothes-presses, etc.

A number of the witnesses testified that it had the appearance of a new building. One of the witnesses, Mr. Kelly, says “it has the appearance of a dwelling. Formerly it had the appearance of a shop, a very loosely constructed building. To all appearances I would say it presents the appearance of a new building, that of a dwelling.” Another witness, Henry Struble, says, “ it presents the appearance of a new building. The old factory and shop had been converted into a dwelling house.” Mr. Cameron says “ it appears like a new building to me, I cannot distinguish any parts of the old building.” Mr. Dewalt says “ this building has a general appearance to me of a new building, altogether different from what it was, the way it is fixed up.”

“ Where the structure of a building is so completely changed that in common parlance it may properly be called a new building or re-building, it comes within the lien law. This is sometimes difficult to decide, and then it must be left to the jury. Under the evidence here a court might have decided that it is a case of a building erected within the meaning of the lien law, and not to have ordered a nonsuit: ” Armstrong v. Ware, 20 Pa. 519.

“ It is but fair that the building should present to the eye that external change indicating newness of structure which is calculated to put purchasers, mortgagees and other lien creditors upon an inquiry for liens : ” Miller v. Hershey, 59 Pa. 64.

Under the testimony in this case, it should have been submitted to a jury for the jury to determine whether from the evidence the building was so changed that it might properly have been called a new building, or a rebuilding, and it was error to enter a nonsuit.

The fifth assignment of error is therefore sustained, judgment reversed, and a venire facias de novo awarded.