Brant v. Hartrick , 60 Pa. Super. 507 ( 1915 )

Opinion by

Henderson, J.,

The plaintiff filed separate liens against three buildings erected by the appellees on a piece of land containing about seven acres for materials furnished and labor performed in and about the construction of the buildings. The whole amount of the claim is $152.40 and this was apportioned among the buildings under the provi-, sions of Section" 12 of the Act of 1901, P. L. 437. The amount charged in this case as determined by that apportionment is $18.00. The lien recites that “said materials and labor were furnished in and about the erection of said buildings at the verbal orders and requests of the said T. O. Reese & Brother, the contractor therefor, at. various dates from November 16, 1911, to May 20, 1912; said' materials being nails, paper, hinges, hasps, locks, doór-hangers, track, brackets, brads, paint, felt, eye-beams, weights, sash-cord, etc.; said labor being excavating.” The principal item in the claim is thus stated in the copy of the account attached to the lien: “1911, Dec. 8, Excavating from Nov. 16th to Dec. 8th, 17 days at 5.50 — 93.50.” The other items of the account are small, running through a period of more than four months, the last being May 20th, “15 lbs. nails — 15.” The last item preceding that is “May 1st, 1 keg 8d nails . — 2.05.” The lien was filed November 19, 1912. The buildings erected were a dwelling house, a barn and a cottage or tenant house. Two considerations induced the action of the court in entering judgment n. o. v. for the defendant: (1) that the buildings against which the liens were filed were not adjoining buildings and, therefore, not subject to separate liens with the amount due determined by apportionment, and (2) that the account for $93.50 for excavating was a lumping charge. We do not consider it necessary to enter into a discussion of the question whether the property was chargeable with separate liens as claimed by the plaintiff, for the action of the court may be sustained on other grounds. Under the authority of McFarland v. Schultz, 168 Pa. 634, the court properly held that the account for excavating was a lumping charge. In that case the claim was for $158.60 against the buildings described in the lien for grading and digging lots and carting away dirt from the same between August 29, 1892, and October 22, 1892. This statement of claim was held to be clearly defective because it did not adequately set forth the nature and kind of the work done nor when it was done. The claimant was a subcontractor and bound to strict compliance with the statute on which he relied for his lien. Such a defect is not formal merely but is substantial and cannot be cured by proof. Burrows v. Carson, 244 Pa. 6, is another case hearing upon the same question. There the account was “1911, April 4th to Nov. 20th, 137 hours’ labor at. 60c per hour — $82.20.” This was held to be a lumping charge and was struck out of the claim. The plaintiff’s is an account due from the contractor. The work alleged to be done was in part on each of the three buildings. Nothing in the lien gives information to the owner as to the amount of work done on each building. There would seem to be no difficulty in ascertaining just what was chargeable for the excavation in each case and the owner was entitled to notice of the amount of work and the time when it was done applicable to each of the buildings which the plaintiff seeks to charge with the debt. With this item out of the account there is no basis on which to support the remainder of the claim. Neither in the lien nor in the testimony is there anything to show how much of this lump sum was included in the lien against any one of t^xe buildings. No basis of apportionment was exhibited and no evidence on which anyone could arrive at a determination of the material furnished to any one of the buildings. It is not asserted that the plaintiff had a special contract to furnish the material and labor for which the claim was filed. On the contrary, it is stated in the lien that they were furnished at the verbal orders and requests of the contractors at various dates. This means that from time to time the contractors bought from the plaintiff material of the kinds described for use in these buildings and it appears that the work of excavating was charged for on a quantum meruit. There is another insurmountable objection to the plaintiff’s right to recover. The bill of particulars attached to the lien filed against each of the buildings covers the whole account against all of the buildings, and no specification is made either in the lien or the bill of particulars when the first or last item was furnished to any one of the buildings. A separate claim is filed against each building and it must be self-supporting. They were not all completed on the same day. There was a time after which the right of lien of a subcontractor ceased as to each of the builds ings and .the owner was entitled to notice of the time when material which was not furnished under a general contract was last furnished for each of the buildings charged with the lien. The. whole of the work was completed and the material furnished on or before May 1, 1912, with the exception of fifteen cents’ worth of nails furnished on May 20th. There is no evidence to show that the material contained in that item went into any one of these buildings and the liens cannot be sustained unless that is made to appear for they were filed moré than six months after the last item charged against any one of the buildings. Thé attempt here is to attach the whole account to the three buildings by the belated item of fifteen cents for nails without proof that they were used in any one of the buildings. It is an admission in the plaintiff’s replication that the last materials sup: plied to the cottage was on April 11, 1912, and for the residence on May 1, 1912. The lien not having been filed until more than six months after the latter date it is -now attempted to give vitality to the liens against them by showing a delivery of the nails on May 20th to be used on the barn. We think it clear that this cannot be done.

The judgment is affirmed.