McDonough v. Sheridan , 1901 Pa. Super. LEXIS 77 ( 1901 )

Opinion by

Beaver, J.,

There is really no dispute as to the essential facts of this case. Defendant left with her attorney, or at least her agent fpr the time, a note payable to the order of William McDonough, the contractor for the building of her house, for $175. Flanigan, who had done work upon the house and was legally entitled to a lien therefor, presented his claim in McDonough’s presence to the defendant’s agent or attorney. There was no dispute as to the ainount. It was settled by the transfer of the note in McDonough’s name, by a check by McDonough, and a check for the balance by the defendant’s agent. In consideration of the transfer of this note and of the checks received by him, Flanigan released his lien. So far as appears by the testimony Flanigan had no knowledge of any representations made by McDonough, nor was he interested in any way in the question as to whether or not there were any other claims which might be the subject of mechanic’s lien. He had a legitimate claim undisputed, for which he had a right to file his lien. In consideration of the transfer of the note, which he subsequently transferred to the use plaintiff, and of the checks received, he released Ms right to the lien, accepting them as actual payment of Ms claim. So far as the defendant and Flanigan are concerned, she received from Mm full consideration for the note. It was in effect, if not in fact, a novation, so far as he was concerned. He was not bound in any way by any representations which McDonough may have made, being neither a party nor privy thereto.

The court below not only exercised proper discretion in refusing to open the judgment upon the petition of the defendant, but could not have done otherwise without a manifest breach of its discretion. The manner in which such discretion should be exercised has been lately fully discussed in Steel Iron Co. v. Jacobs, 9 Pa. Superior Ct. 122, and in Blauvelt v. Kemon, 196 Pa. 128. It is unnecessary to cite other authorities. The court below acted M full accord with the well known principles and practice therein recognized.

Decree affirmed.'