Loasby v. Irvin , 1916 Pa. Super. LEXIS 51 ( 1916 )

Opinion by

Orlady, P. J.,

On the trial in the court below it was not denied that the materials for which payment was claimed, were furnished as alleged, and that they were not paid for. The defense was that Morris, the plumber, through whom they were furnished, had agreed that he would not file liens and that the legal plaintiff had no right to file such lien. The issue presented narrowed down to a dispute as to a single fact. The plaintiff claimed the right to recover, for the reason that it was distinctly and expressly agreed by the defendant Irvin, owner, that liens should be filed in case of default of payment, and this question was submitted to the jury in an adequate charge, viz: “If you believe that Morris was simply acting as the plumber in the transaction, to assemble the parts together and install the heat plants, but that the agreement to furnish was made by the Pierce, Butler & Pierce Company, on one side, and Irvin, the defendant, on the other, then it is your duty to bring in a verdict for the plaintiff for the amount claimed in each one of these cases.” The opposite of this contention was as clearly submitted, and the jury instructed that if it found as claimed by Irvin, the verdict should be in his favor. The court rightly held that the letter offered in evidence was a separate and independent contract between these parties.

As the case was presented by counsel, the disputed facts were fairly submitted, and the evidence adduced fully warranted the verdict returned by the jury in that Irvin was not relying on the waiver of liens in a contract with Morris, but directly agreed verbally, as an inducement to get the material for the eight houses, that the plaintiff should have the right of lien, in default of payment. As we held in Pierce, Butler & Pierce Manufacturing Company v. Rogers, 60 Pa. Superior Ct. 293, where a dealer accepts from a general contractor a proposal for the plumbing and heating of a number of houses, but under an express agreement made with the owner personally that he would pay to the dealer directly for such material, the dealer is a contractor and entitled to file a lien for the material furnished.

The judgment is affirmed.