Bevan v. Thackara

Opinion,

Mr. Justice Sterrett:

The lien on which this scire facias issued was filed against a building described therein as “ a dwelling-house, two stories high, with attic, the first story being of stone, and the second and attic being of frame, .... erected on a certain lot situate in the township of Lower Merion, in said county, containing 1899/1000 acres of land, bounded by Thornbrook Avenue, lot No. 8,” etc., .... and “ being the same premises which William T. Tiers and wife, by deed dated May 17, 1887., .... conveyed to the said Eleanor S. Thackara in fee.” The building is further described by giving, somewhat in detail, its length, width, etc. The “ amount claimed is $923.42, for lumber, lime, etc., furnished within six months last past, continuously, the particulars, items, amounts, dates, etc., being specifically set out in bill annexed and made part of this claim, and furnished for the erection of said building; said building having been erected for the improvement of the separate estate of Eleanor S. Thackara, and by her direction, authority and consent, and with the consent of her said husband, the said Alexander M. Thackara. The said materials were furnished under and in pursuance of a contract made by and between the said Eleanor S. Thackara and the said L. W. Kitzelman, and were reasonably necessary for the improvement of her separate estate, and said improvement is a necessary improvement. And due and legal notice of the amount and character of this claim was given said owner when the said materials were furnished and within ten days thereafter.”

Appended to the claim is the bill of particulars, referred to therein as part of the claim. It is entitled as follows :

“Bill of Particulars

“ July 20, 1888.

“ L. W. Kitzelman, contractor; A. M. Thackara, owners, and wife.

“ House and Stable near Rosemont, Pa.

“Bought of Walter Bevan & Brother.”

It will be observed that neither in the body of the claim, as filed, nor in the bill of particulars annexed thereto, except in the above quoted caption, is there any mention made of “ stable,” or any other out-building appurtenant to the dwelling-house. While the location, dimensions, etc., of the latter are minutely stated in the body of the claim, there is nothing whatever said as to the stable. The only suggestion of any out-building is in the use of the word stable, in the above caption.

It appeared that on July 15, 1887, Kitzelman contracted in writing with A. M. Thackara, husband of the other defendant, for the erection, of the house on her lot, and, on November 11, 1887, a similar contract was made with said husband for the erection of the stable on same lot. The plaintiffs furnished the materials specified in the bill of particulars, on the order of the contractor, and they were used partly in the construction of the house and partly in the stable. The building of the house was commenced in July, 1887, and completed about February 11, 1888. The stable was commenced in November, 1887, and finished about February 10, 1888. The plaintiffs had no knowledge that there were separate contracts for the erection of the respective buildings, nor that they were in writing; but they knew that Kitzelman was building both the dwelling-house and. the stable. These facts are either undisputed or established by the verdict.

Under the findings of the jury, the value of the materials furnished and used in both buildings, with interest, was $999.68. They were reasonably necessary for the erection of the house and stable, and the buildings were necessary for the improvement of the wife’s separate estate. The contracts were made and the materials were furnished with her knowledge and consent. The stable was appurtenant to the house, and was necessary for the convenient 'enjoyment of the house and' lot.

One general ground of defence, in the court below was, that under the evidence there could be no recovery for any part of the materials, mainly because the contracts were with the husband alone, and Mrs. Thackara, owner of the lot, was not a party thereto. The evidence tended to show that the contracts were made with the knowledge and consent of Mrs. Thackara; that the materials were reasonably necessary for the erection of the house and stable, and that those buildings were necessary for the improvement of her separate estate; that said materials were furnished and used in the erection of both buildings, with the knowledge and assent of Mrs. Thackara, and that the stable was appurtenant to the house, and was necessary for the convenient use of the house and lot.

That evidence was properly submitted to the jury, with instructions, that unless they found the facts as above stated, their verdict must be for the defendants. The verdict in favor of- the plaintiffs, therefore, establishes those facts ; and, if there was nothing else in the case, the judgment thereon should be sustained. As was said in Einstein v. Jamison, 95 Pa. 403: “ While courts should carefully protect married women in the enjoyment of their separate property, and not permit it to be unjustly charged with encumbrances, they should not be permitted to enhance the value of their property at the expense of innocent and confiding creditors. If the materials were furnished and used in the improvement of her property by her directions, or with her knowledge and assent, and were reasonably necessary, and there was no agreement that her property should not be liable therefor, the law will give a lien thereon for the value of the materials.” To the same effect is Forrester v. Preston, 2 Pittsb. 298. In that case it was well said: “ If this were the ease of the erection of a building on the wife’s separate estate without her authority, .... the building would not be liable to a lien for the materials furnished .... for the contractor. But the building, in this case, was not erected without the consent of the wife, under a contract made with a stranger. It was erected under a contract made with the husband, and as the facts abundantly show, with the knowledge, approbation and concurrence of the wife. It is true, the husband made the contract in his own name, but the building contracted for was, with the knowledge and concurrence of the wife, designed and erected for her; and therefore, in making the contract the husband may be regarded in law as the agent of the wife, as much so as if he had avowedly acted by her express authority.” Several of the specifications of error are to the rulings and instructions of the court bearing on the defence above stated. It is unnecessary to consider them in detail. There appears to be no substantial error in either of them.

Another ground of defence was, that under the claim, as filed, the plaintiffs could not, in any event, recover more than the value of the materials shown to have been furnished for and used in the construction of the dwelling. The court was accordingly requested, in defendants’ third and fourth points, to instruct the jury as matter of law: “ That any materials..... which were used in the construction of the stable cannot be recovered in this proceeding; ” that, in any event, the verdict “ can only be for the amount and value of the materials which were actually used and applied in the construction of the dwelling-house.” These points were refused pro forma, and the question of law raised by them was reserved for future consideration. The learned judge subsequently disposed of the question of law thus reserved, by refusing judgment non obstante veredicto, and entering judgment on the verdict for the amount found by the jury. This is the subject of complaint in the nineteenth and twentieth specifications.

Conceding the fact specially found by the jury, “ that the stable was appurtenant to the house, and necessary for the convenient enjoyment of the house and lot; ” and further, that the plaintiffs were entitled to a joint lien against both buildings, without being required to apportion the amount between them, they should have included the stable in their claim. As we have seen, the stable is entirely ignored in the body of the claim. It is not even referred to as an “ appurtenant ” to the house ; nor is it anywhere stated that any part of the materials were furnished for or used in the construction of the stable. In Barclay’s App., 13 Pa. 495, it was held that a claim under the mechanics’ lien law must set forth the nature of the work or materials, with such a specification of the building as will exclude work done or materials supplied for anything else; and hence “ a claim for work and labor done to a house (describing it) .... . for or about the erection and construction of the said building and appurtenances is not sufficiently certain.” In Lauman’s App., 8 Pa. 473, the claim was filed against a mansion-house, barn, wagon-house, etc., on a farm to which they were all appurtenant and intended to be occupied and used together. It was held that, under the circumstances, an apportionment of the claim among the several buildings was unnecessary.

The plaintiffs, doubtless, had a right to include the stable in their claim, but it was not sufficiently done. The mere mention of the word “ stable ” in the caption of the “ Bill of Particulars,” cannot be regarded as an inclusion of the building in the claim. Conceding that the lien against the house and ground upon which it stands, and so much other ground as is necessary for the ordinary and useful purposes of the house, embraces the entire lot of nearly two acres, and that a sale on that lien would carry the lot and all the improvements thereon, including the stable, it does not follow that the plaintiffs have a right to include, in the lien against the house, the value of the materials furnished for and used in the construction of the stable, not included in the claim as filed.

The facts found by the jury, that plaintiffs had no knowledge of the separate contracts for the erection of the respective buildings, nor that the contracts were in writing, can have no bearing in their favor. They might have known, and it was their duty to ascertain the fact. “ It is the duty of one who deals with an alleged contractor to know the relation he bears to the owner; and failing in this, he. furnishes material at his peril: ” Brown v. Cowan, 110 Pa. 588. In Schroeder v. Galland, 134 Pa. 277, this court held that the sub-contractor is chargeable with notice of all the terms and stipulations between the original contractor and the owner.

It follows, from what has been said, that the plaintiffs were not entitled to recover, in this suit, for the value of the materials furnished by them for the stable and used in the construction thereof, and that the defendants’ third and fourth points for charge should have been affirmed, or else the question of law presented by those points should have been decided in favor of the defendants. The record furnishes no data by which a final judgment can now be entered, and it is therefore necessary to reverse the judgment and order a new trial.

Judgment reversed, and a venire facias de novo awarded.