Stephens v. Campbell , 13 Pa. Super. 7 ( 1900 )

Opinion by

Orlady, J.,

The plaintiffs filed a claim for the payment of the sum of $85.50, in which they aver that the said sum, being a debt contracted for a certain kind of building material known as terra-cotta, was “ .... at the request of Charles Bishoff & Company and Stephens & Company, continuously within the six months last past furnished to and supplied for and towards the erection and construction of and on the credit of the said building at the times and in quantities in the annexed bill of particulars mentioned.” The bill of particulars annexed to the claim is as follows:

25 ft. of rail and 48 closures, .... $35.00

85 ft. of moulding,......30.00

1|- panel and I moulding, .... 15.00

16 ft. of coping, 4// X 6",.....5.00

2J ft. of coping,...... .50

$85.50

On the trial of the scire facias it was clearly shown that the legal title to the land on which the buildings were erected was in J. Frank Freed, who held it for the benefit of James A. Campbell and Charles Bishoff, and that Freed made a general contract with one Henry C. Sharp for the erection of some seventy-seven houses in accordance with plans and specifications to be approved by a trust company which was to be subsequently selected and was then to make advances to erect the buildings as they progressed, and to take mortgages therefor, which on the completion of the buildings aggregated over 1800,000.

Campbell and Bishoff were the promoters of the building operation and had had former business transactions with the plaintiff. In July, 1895, Campbell & Company requested Stephens & Company to submit estimates for terra-cotta as described in plans at that time exhibited and which had been used in a former operation. In October following, Stephens & Company received from Campbell & Company working drawings for this terra-cotta, and tendered a contract at the price or sum of $4,400 for all of the terra-cotta work required in the erection and construction of the seventy-seven houses. Henry G. Stephens, for the plaintiff, testified on the trial that at the time this contract was submitted for the signature of Campbell & Company, he was informed by Campbell, who spoke for himself and partner as promoters and as an owner of the title, that “ he could not sign the contract, not having secured his bondsmen ; that he did not have his negotiations finished yet with the trust company; that he had made arrangements and they had not carried, and that he was negotiating with another trust company; but if you will go on with the work I will pay you this money on the terms stated and agreed on by us.” He further testified that, “ We had no signed contract, we started to work at once. It was to be a rush job and we were to get the work out. It was finished the 19th day of December, 1895.” On April 8, 1896, the plaintiff received notice from Bishoff & Company to make delivery of terra-cotta for six houses which they were pushing through ahead of time. This order was filled and the material for these six houses was independent of that for which this lien was filed. Soon thereafter and before any further deliveries were directed or made, Stephens & Com pany received notice that a change in the plans had been made, owing to a change of the trust company, and that no more terracotta would be required. After receiving this notice not to deliver it, and with knowledge that the changed plans eliminated terra-cotta as a building material, the plaintiff, on April 23, 1896, hurriedly deposited the terra-cotta on a triangular lot where the like material had been delivered for use in the six houses. On the trial, the learned judge below instructed the jury as follows: “Now according to the plaintiff’s testimony believing that was the contract with the defendants, they went on and did the work which was called for: that is, they manufactured the whole of the terra-cotta work. Such portion as was necessary for the construction of six houses they delivered, and, subsequently, after having received notice that terra-cotta would not be used in the operation, they hurriedly delivered the rest. There is no question but what there was an effort on their part to get in a delivery so as to save their lien. Whether or not they could save it is a question which is covered by the other question which I have reserved. I have said to you that if the plaintiffs did make a contract with the defendants as the owners of the properties which were built, for the furnishing of terra-cotta for the operation, and the plaintiffs manufactured it and delivered it at a place where the materials for the building were placed upon the credit of those buildings, then they are entitled to a verdict for whatever was the proper amount due for the terra-cotta which they so made and furnished. I shall reserve the question as to whether or not the plaintiffs can recover in this mechanic’s lien against the property, in view of the fact that they received notice not to deliver a portion of the terra-cotta before they actually delivered upon or near it the premises in question.”

It is admitted that none of the terra-cotta was used in the buildings. A verdict in the plaintiffs’ favor was returned by the jury and subsequently a motion for judgment non obstante veredicto was overruled by the court, and the defendants bring this appeal.

There is some conflict in the evidence as to the acceptance of the terra-cotta for the six houses, but it does not affect the decision of this case. The testimony of the plaintiffs shows that at the time of accepting the order for terra-cotta a most important matter was undecided, to wit: the selection of a trust company and its approval of the arrangement as then planned. The order was given to Stephens & Company in October, 1895; the material was all ready for delivery by December 19, 1895, and it was delivered on April 23, 1896, at which time the buildings were only up to their foundations. The use of the terra-cotta in the buildings was clearly subject to the decision of the trust company, and the trust company’s mind was independent of that of either of the parties to this record. The company’s judgment of the materials to be used and plans to be adopted was the judgment of the owner; and until its conclusion was definitely expressed, the whole project was uncertain and prospective. The construction of the buildings, whether of stone, brick, or other material, and the architectural design depended on its decision, and it must be conceded in the light of the plaintiffs’ testimony that at the time of the delivery of this terra-cotta, April 23, 1896, the delivery was not made in good faith. They must have known that it could not be used in the building, and that it was not furnished for the erection of the building, nor on the credit of the same, since the plaintiff had direct notice that it was not only rejected material but that the change of plans eliminated it entirely from the construction of the building. They elected to prepare the material under the contract made in July, 1895, and they could not, as matters then stood, rely on the indefinite and uncertain contingency of what a trust company, which at that time was not selected, would do in a matter of accepting the plans and specifications of another operation as the basis of credit on which they would advance money to the extent of over #300,000.

The fact that the material was made away from the premises is not important; if the work was done for or on the credit of the buildings, the place where it was done can make no difference: Singerly v. Doerr, 62 Pa. 9.

The right to recover from Campbell & Company under the contract of July and October, 1895, is not disputed. The terms of the mechanic’s lien statutes must be complied with in good faith in order to give the claimant the preference over other liens; and we feel that, as the plaintiffs have made their own case, they have not brought themselves within the rule of any decided case. Plaintiffs cannot, under the guise of the mechanic’s lien law substitute their action for damages for breach of a contract. While the question presented in this case has not been directly decided in this state, we feel that under the reasoning of Wallace v. Melchoir, 2 Browne, 104, Basch v. Sener, 1 Penny. 22, Dickinson College v. Church, 1 W. & S. 462, Hinchman v. Graham, 2 S. & R. 170, Odd Fellows Hall v. Masser, 24 Pa. 507, Harlan v. Rand, 27 Pa. 511, Singerly v. Doerr, 62 Pa. 9, and Wolfe v. Batchelder, 56 Pa. 88, that to entitle the claimant to his statutory preference, he must affirmatively show, in the words of the statute, “ that the debt was contracted for work done or materials furnished for or about the erection or construction of the buildings; ” and in our view of this case the plaintiffs’ own testimony is the answer to their claim.

The assignments of error are sustained.

The judgment is reversed and is now entered non obstante veredicto in favor of the defendants.