Scholl v. Gerhab

Mr. Justice Sterrett

delivered the opinion of the court, May 3d 1880.

The validity of the mechanics lien or claim upon which the scire facias was based, was not put in issue by the pleading, and hence there was no error in permitting it to go to the jury in connection with the testimony which had been given to prove the sale and delivery of the materials specified in the claim as filed. The pleas were non assumpsit, and payment with leave to give special matter in evidence. It was held in Lewis v. Morgan, 11 S. & R. 234, that on a plea of payment with leave, &e., advantage could not be taken of the invalidity of the lien; that the plea virtually admitted the averments contained in the scire facias, and put the defence on collateral grounds. It is there said, that as an equitable plea it makes room for what would sustain a bill in equity, and as a legal plea it lets in proof of direct payment, or whatever 'may be equivalent thereto; but, in every such defence, whether legal or equitable, the claim is not denied on original grounds. The subject of pleading to a scire facias on a mechanic’s lien, was considered in Lee v. Burke, 16 P. F. Smith 336, in which the pleas were, “ no lien, payment, set off with leave;” and it was held that no question as to the sufficiency of the claim upon its face could properly arise upon the trial of issues of fact.

The plea of non assumpsit was in effect a denial that the defendant against whom the lien was filed, both as owner and contractor, had either ordered or agreed to pay for the material. To meet this the plaintiff introduced testimony to prove the sale and delivery to the defendant for the building against which'the lien was filed. The specific objection to the lien was that it failed “ to aver the time when the materials were furnished, or that they were furnished within six months last past.” The authorities all agree that a question of law such as this should be taken advantage of by demurrer, or motion to strike off the lien, and not in the trial of issues of fact before a jury. But, aside from the form in which the court was asked to pass upon the alleged defects in the lien, the objections were not well taken. In t'he body of the claim reference is made to the annexed statement, setting forth “ particularly the nature and kind of materials furnished, and the time when the same were furnished;” and it is subsequently averred that “the said claimant hereto annexes as part of said lien a detailed statement, exhibiting the amount or sum due him, and the time when the said materials were furnished.” The bill of particulars, consisting of forty-six items, thus connected with and made part of the claim, commences with “ January 17th 1876,” and continues regularly in .chronological order to the last item under date, October 27th 1876. This was a sufficient compliance with the requirements of the act. Any one examining the claim, as thus presented, would readily understand when the several items from the first to the last were furnished.

The second assignment of error is not sustained. Enos Detweiler, an employee of Gerhab, was called to prove that when Scholl obtained the German siding and other material, on October 19th and 27th 1876, he stated it was for the house against which the lien was filed. At that time Scholl was the owner of the property, and his admissions under the circumstances were certainly competent as tending to prove not only that the building was not then finished, but also that the materials then procured by him were furnished for the building and on its credit. These were questions involved in the issue upon which the jury had to pass. The terretenant who was admitted to defend pro interesse suo, did not acquire title until two weeks after the alleged admissions were made. The offer was properly limited to proof of declarations made by Scholl during the time he owned the premises, and before the date of the conveyance to Kramer.

Judgment- affirmed.