Haney v. Moorehead , 1915 Pa. Super. LEXIS 295 ( 1915 )

Opinion by

Henderson, J.,

The plaintiffs’ oral evidence relating to the first release of liens was properly submitted to the jury as is conceded by the learned counsel for the appellant. The testimony offered is treated in their argument as evidence to vary the terms of a written instrument and as there were two witnesses in support of the contemporaneous oral agreement no complaint is made that the court permitted the jury to inquire and determine whether such an agreement was entered into. It is urged however that the second releases were not supported by the testimony of at least two witnesses or one witness and corroborating circumstances and that the evidence relating to the circumstances under which they were obtained should have been excluded. In passing on the correctness of the court’s decision it is necessary to take into consideration the whole transaction. The owner first prepared a “blanket release” to which he undertook to procure the signatures of all of the lien creditors. His object in so doing was to clear the property in order that he might place a mortgage thereon. The document sIioavs that it Avas intended to be signed by all the creditors and the owner stated the use to be made thereof. The jury has found on admittedly competent evidence that the signature of the plaintiffs to this instrument was obtained on the agreement that the paper should not become effective unless all of the lien creditors became signers thereto. It is also unquestioned that it was not signed by all of the creditors. After the plaintiffs’ signature had been obtained the owner discovered that the blanket form of release was not satisfactory and that it would be necessary to have a separate release for each house and lot to enable him to carry out the project which he had in view objection being made by the prospective lender of money to the general release covering all of the property. Thereupon a separate release for each house and lot was prepared to be signed by the several lien creditors. No use of the first release had been made by the owner, and the second releases were clearly substitutes for the first. They were to be used for the purpose in contemplation when the first was signed and it is not suggested that any new consideration or inducement was presented to the signing creditors. The whole transaction should be considered as one act, therefore, so far as the release of liens is concerned and what took place at the execution of the first paper has an important bearing on the making of the separate releases. The same object was in view and the owner’s convenience was the only consideration which brought about the change. The first and second releases were successive steps in the whole plan to effect a loan and are to be construed together as one transaction: Thompson v. McClenachan, 17 S. & R. 110; Kramer v. Dinsmore, 152 Pa. 264. If the releases were executed by the plaintiffs on the agreement that they were not to become complete and operative until all the lien creditors had signed them they cannot be made available as a defense in the face of the fact that some of the lien creditors never became parties thereto: Warfel v. Frantz, 76 Pa. 88; Whitaker v. Richards, 134 Pa. 191. It is to be observed, too, that the plaintiffs’ objection does not involve an alteration of a written instrument but attacks the validity of the release as a contract. The proposal is not to alter or contradict but to set aside and destroy because of the failure of the condition under which it was to have life and efficiency. In such a case the testimony of a single witness covering the point in controversy requires a submission of the question of fact so raised to the jury: Spritzer v. Penna. R. R. Co., 226 Pa. 166; Gordon v. Great Atlantic & Pacific Tea Co., 243 Pa. 330. If the release was given to be deemed executed only when all the members of a specified class had signed it and the owner used it in a different way and without the existence of the specified condition such use would be a fraud because in violation of the promise made at the time the paper was executed: Davidson v. Young, 167 Pa. 265; Phillips Gas & Oil Co. v. Pittsburgh Plate Glass Co., 213 Pa. 183; Winters v. Schmitz, 36 Pa. Superior Ct. 496.

At the time the appellant insured the title to the mortgage it had no standing to intervene and defend against the liens. The 23d Section of the Act of June 4, 1901, P. L. 431, permits any party having a lien against, estate in, or charge upon, a property included in such claim to file his petition for leave to intervene, and the 24th section permits any person having an interest in the property described in the claim to intervene as a party defendant by agreement of the parties or by leave of court with the same effect as if he had been originally named as defendant in the claim filed. We think it cannot be successfully contended that the appellant had a lien against, estate in, or charge upon the property or interest therein at the time the insurance was taken. What it claims to have is an equity arising out of the delivery of the releases to the owner and the action of the appellant by reason of such releases. This is not such an interest as the statute contemplates and does not give the appellant standing to contest the claim by reason of its insurance of the mortgages: Pagnacco v. Faber, 224 Pa. 18. If it be contended that it had standing to offer the defense as owner in fee the proposition is confronted by the fact that the lien was filed on February 25, 1910, and title was not taken by the appellant until Dec. 31, 1910. The entry of the lien.was notice to purchasers and encumbrancers of the plaintiffs’ claim: Harbach v. Kurth, 131 Pa. 177; Kreusler v. Glukoff Co., 223 Pa. 174. The assertion of a lien was inconsistent with the release proposed to be set up and the intending purchaser was bound to make inquiry in regard to the claim and release. It cannot be said that the appellant was an innocent purchaser the lien being on record. It had actual or constructive notice that the plaintiffs claimed to have a charge on the property: Hill v. Epley, 31 Pa. 331. Under such circumstances an estoppel could not be set up because of the knowledge ór means of knowledge which the purchaser had.

Under the evidence there was a question of fact as to the delivery of the “extras” to the Tulpehocken street houses and this question was submitted to the jury by the court with appropriate instructions. It was not an answer to the claim that part of that material was used in other houses. A delivery for a particular house entitles the materialman to a lien although the material may have been actually used in another building: B. F. Lee Co. v. Sherman, 43 Pa. Superior Ct. 557.

There was no appropriation of the payments by. the owner and the uncontradicted evidence is that the claimant’s books were kept without any reference to liens. The jury found in favor of the plaintiffs on this subject and we are not persuaded that any error was committed by the court on that branch of the case. A consideration of all of the assignments of error and the arguments relating thereto leads us to the conclusion that there was not any error calling for á reversal.

The judgment is affirmed.