Bennett Lumber & Manufacturing Co. v. Hartrick , 1915 Pa. Super. LEXIS 352 ( 1915 )

Opinion by

Henderson, J.,

The plaintiff was a subcontractor for material used in the erection of a dwelling house. The owners purchased seven acres of land and proceeded to erect thereon the dwelling referred to, a laborer’s cottage and a barn: Separate contracts for the construction of these buildings were entered into on the same day with T. O. Reese & Brother, contractors. The material furnished for which this lien was filed consisted of door frames, window frames and cornice, the same having been furnished in performance of a contract between the claimant and the contractor. It is not disputed that the material was placed in the building. Objection is made that the lien is filed against the whole property which includes the laborer’s dwelling and the barn, and that separate liens were filed in like manner against the laborer’s house and the barn for materials furnished in the construction of them. The appellant’s contention is that each lien is in reality filed against all three structures and that the decision in Schively v. Radell, 227 Pa. 434, prohibits such a charge! That case held that one lien could not be filed against two structures built on separate lots for material furnished for use in each of the buildings and is decisive of the question there involved, but the claimant here did not file his lien against the three buildings. It was filed against the principal building and the reference to the cottage and the barn was incidental to the description of the curtilage. The claim for material furnished to each of the buildings was embraced in the lien filed against the particular building. It is true each lien describes the curtilage as the seven acre lot, but it is not in an actual or legal sense the case of one lien against several structures. The third section of the Act of June 4, 1901, P. L. 431, provides that “The curtilage appurtenant to the structure or other improvement shall be such as is reasonably needed for the general purpose for which such structure or other improvement was made, and belonging to the same owner, including other structures, whether newly erected, or altered, or changed for such purpose, and forming part of a single business or residential plant.” Assuming that the whole lot is the appropriate curtilage a claimant who furnished material for the large dwelling house could properly describe it as the curtilage with the other buildings thereon. If different materialmen had furnished material for each of the buildings each of such contractors could have filed a lien against the building to which he was a contributor and include such appurtenant land as was reasonably needed for the general purpose for which such structure was made and we see no reason why a single contractor furnishing material to each of the buildings is in a different situation. A separate lien was filed against the large dwelling as was also done in the case of the cottage and the barn. The real complaint is, therefore, that more was included in the curtilage than properly belonged there. The evidence shows that at the time the plaintiff commenced to furnish material to the owners the land and buildings were intended to constitute “a residential plant.” The residence was located at the corner of Perrysville and Schwitter avenues; the barn was near the center of the whole plot and the cottage on Schwitter avenue at a suitable distance from the dwelling. It was the declared intention of the owners to use the property as a residence and truck and poultry farm and the buildings were adapted to such a use. The subdivision of the whole property was made about the time the buildings were completed or later and after the plaintiff’s bill for material had been incurred. There was justification for the plaintiff’s assumption, therefore, that the property should be considered as an entirety and subject to the lien, but if a greater curtilage is claimed in the lien than is supported by the facts under the authority of Black v. Hartrick, 247 Pa. 504, relief could be had by application to the court below to restrict the lien to proper limits. That case arose out of the same building construction and related to the same piece of land. A single lien was filed for materials furnished in the construction of two of the buildings under separate contracts. This it was held could not be done but an item for materials and labor furnished for extra work on the residence was sustained as a single claim against a separate structure. One of the defenses there as here was that the description of the land on which the residence was erected contained more than was reasonably necessary as a curtilage and included the ground on which the other structures were located. Of this the court said “The answer to this position is that if the curtilage described contains more land than ‘should be justly included therein,’ section 23 of the Act of June 4, 1901, P. L. 431, furnishes an ample remedy to have the same restricted to what may be reasonably necessary.

“Notwithstanding the very able argument of counsel for appellee on this point our conclusion is that the item of claim for extra materials and labor furnished on the basement walls of the residence valid in every other respect should not be stricken down because more land was included in the description of the curtilage than was reasonably necessary for the general purposes of the residence. If this becomes a material question application may be made to the court below to have the curtilage defined and the lien limited to the boundaries thus ascertained.” The method thus pointed out protects the owner from an unauthorized and unjust application of the lien to property not reasonably within the curtilage. Whether, therefore, we regard the claim as good against the whole plot or consider the description of the premises as in excess of the area properly constituting the curtilage we do not find any basis for sustaining the appellant’s contention on this part of the case.

It is further objected that the lien is a lumping charge in that the price in each item of materials is not given. The 11th Section of the Act of June 4, 1901, as amended by the Act of April 17, 1905, P. L. 172, directs what shall be set forth in a claim of this character. The second paragraph of the section requires a statement of “the amount or sum claimed to be due and the nature or kind of the work done or the kind and amount of materials furnished or both.” This provision calls for a statement of the amount claimed to be due and of the kind and amount of materials furnished but there is no statutory requirement calling for a statement of the price of each article. The object of such information is to give the owner the necessary knowledge to enable him to determine the correctness of the claim and where the information contained in the lien is sufficient on inquiry to give him such knowledge it is all that the law requires. “All the cases agree that a substantial compliance is sufficient and this is shoAvn to exist Avherever enough appears on the face of the statement to point the way to successful inquiry.” American Car and Foundry Co. v. Alexandria Water Co., 215 Pa. 520. The plaintiff’s claim was for ten items consisting of Avindow and door frames and a specified quantity of cornice. They were placed in the building, they Avere open to the inspection of the owners and from such inspection or further inquiry the fairness of the price charged could easily be ascertained. We are unable to see that the appellants were in any way prejudiced by the failure of the claimant to set forth the price of each frame and as there Avas no statutory obligation resting on the plaintiff to specify the price of each article Avhere the whole was furnished under a lump contract we think the claim is not objectionable on this ground. In Willson v. Canevin, 226 Pa. 362, a much larger claim of a similar character was the subject of controversy. In that case the court said “The statement gives the owners a detailed account of the various items of materials furnished, the total of the price to be paid and the kind of materials furnished. This is all the information he needs to enable him to deal intelligently with the contractor and protect himself......While the price agreed to be paid was a lump sum, the various items of the materials furnished are specifically set forth in the statement. This differentiates it from the case where the items and character of the material are not given and the price is-a lump sum.” Compliance with the terms of the statute is necessary but the remedy is not to be nullified by the imposition of conditions not demanded .by the legislation and which make the benefits intended to be secured difficult of attainment.

The objection that there were no proper items charged within the three months immediately preceding the giving of notice of the intention to file a lien is evidently an afterthought. No reference was made thereto in the very elaborate and specific affidavit of defense filed nor does the point appear to have been raised during the progress of the trial. It is true that the first item in the bill was furnished more than three months before the giving of the notice of intention to file a lien, but all of the items were furnished under a contract. The necessary averment as to time appears in the lien, the date of the last item is given and all the material went into the building. There does not appear to be any merit in this objection.

That the material was furnished on the credit of the building is averred in the lien and appears affirmatively in the testimony. A prima facie case is certainly made out and as there is no evidence to the contrary there is no support for the appellant’s contention on this point.

The judgment is affirmed.