Dougherty v. Loebelenz

Opinion by

W. D. Porter, J.,

The record in this case shows that the only exception taken-in the court below was to the action of the court in overruling a motion for nonsuit, which action was not a subject for exception. The plaintiff having filed his mechanic’s lien in due form •issued a scire facias thereon, the defendant filed an affidavit of defense, in which the only grounds of defense alleged were as to the quantity and quality of the material which went into the building, and that a part of the claim had been paid. The pleas were nil debet, sehoff and payment. At the trial the only evidence offered by defendant was confined to the quality of the bricks which the plaintiff had furnished, and which actually went into the building. The defendant endeavored to show that the bricks furnished by the plaintiff, and used in the construction of the building, were so soft and defective that it would be necessary to remove many of them from the walls and replace them with hard bricks, and that, as a consequence, the building had been damaged. The only question of fact which the jury was called to pass upon was the value of the bricks used in the construction, and what, if any, damage the defendant suffered as a consequence of defective material. In an exceedingly clear charge, the learned judge who tried the cause fully commented upon the law applicable to every question upon which the jury had to pass under the evidence. The defendants were so well satisfied with the charge that they did not take even a formal exception, and made no request that the charge be filed of record. The jury having found against the defendants, they have appealed to this court, and while there are four assignments of error, they are all based upon one alleged error, viz : “ That the learned court erred in failing to instruct the jury that if the evidence produced indicated that the materials were not furnished on the credit of the building, no recovery could be had by the plaintiff.” This is simply a complaint that the charge was inadequate. If the defendants, at the time, thought that the question whether or not the materials had been furnished on the credit of the building could be raised under the evidence, it was their right to embody their view of the inferences deducible from the evidence in a request for instructions and submit the same to the court. That was not done, and the defendants are therefore in no position to complain of the learned judge for not doing that which he was not requested to do. It is now too late to complain of any omission in the charge concerning particular phases of the evidence: Curtin v. Gephart, 175 Pa. 417; Crawford v. Wittish, 4 Pa. Superior Ct. 585. When in a civil case no request is made, the mere omission to charge upon a particular point is not ground of error: Philadelphia & Reading R. R. Co. v. Getz, 113 Pa. 214. In the present case the learned judge who tried the case was manifestly right in refraining from charging the jury upon a matter -which, under the evidence, they ought not to have been called upon to consider. It is not necessary for a materialman to allege in his claim, nor to prove affirmatively, that his materials were furnished upon the credit of the building, if it be shown that they w’ere furnished for and entered into its construction. The burden is then on the defendant to show that they were furnished on the credit of the contractor alone. Furnishing the materials for the construction of the building is all that is requisite to create the statutory lien. But the creditor may have done some act which bars his right, as the giving of sole credit to the contractor, or agreeing with the owner to waive the security of the lien, and if such a fact is indicated by the evidence which plaintiff produces in support of his right to a lien, the effect of such testimony against his right is the same as if it had been adduced by the defendant: Hommel v. Lewis, 104 Pa. 465 ; Noar v. Gill, 111 Pa. 488.

In the case in hand there is no question that the plaintiff did furnish the materials for the construction of this building, intending that they should be used in said building, and that they were so used. This made out for plaintiff a prima facie right to a lien, and put upon defendant the burden of showing that the materials were not furnished on the credit of the building. Upon that point the defendant presented no evidence, but now contends that the testimony of the plaintiff indicated that the materials were not furnished on the credit of the building. We have carefully considered the testimony of the plaintiff, and find in it nothing which can fairly be said cast a doubt upon his right to a lien. When Cole, the contractor, called upon plaintiff in reference to purchasing bricks for the building, plaintiff told him that he could not sell him the bricks until he went up and saw some of the Loebelenzes. Plaintiff went and saw the husband of the owner, who is clearly established to have been her agent in the erection of the building, and told him that Cole had been to see him about buying bricks for the building. The owner’s agent said: “You furnish the bricks, and we will see that you get your money.” Plaintiff then delivered the bricks to Cole at the building, and Cole paid during the deliveries $103 on account. Plaintiff kept no books, but tickets were sent with each cartload of bricks, one ticket being left at the building and a duplicate, after being receipted by some person in charge at the building, was returned to the brick works. From these tickets the bills were made. After the deliveries had been completed the plaintiff took his bill, together with the tickets, to the owner and submitted them to her. She approved them, paid $100 on account, and promised to pay the balance as soon as she could get the building measured. Plaintiff testified that he depended altogether upon receiving his money through the owner. Flow the defendant can find any comfort in this testimony is more than we can understand.

Plaintiff refused to sell to the contractor upon his individual credit, he never agreed with the owner to waive his right of lien, and promptly after completing his deliveries to the contractor at the building, he made known to the owner the amount of his claim.

In view of the facts that the undisputed evidence gave the plaintiff a prima facie case upon the point now raised, that his testimony contained nothing which impaired that case, and that defendant made no offer of evidence upon the subject, we find no error in the charge of the court.

Judgment affirmed.