Old Forge Borough v. Foley Estate

Opinion by

Oblady, P. J.,

'The Borough of Old Forge, a municipal corporation, filed its claim and lien against “Foley Estate, owner or reputed owner” of described property, for the sum of $1,149.12, with interest, claimed to be due for the construction of a sewer adjoining and adjacent to the described property. Exceptions to the validity of the lien were filed, the first of which is as follows: “The said claim was not signed by the solicitor or chief executive officer of the borough aforesaid, in accordance with the Act of June 4, 1901, Section 11, P. L. 368.” Other exceptions followed which were not sustained by the court below, and they are not material in disposing of the question involved in this case.

The learned judge of the court below was of the opinion that the claim was not properly signed, sustained the exception, and directed that the lien be stricken from the record, from which order this appeal is taken.

The concluding paragraph of Section 11, of the Act of June 4, 1911, is as follows: “Said claim must be signed by the solicitor or chief executive officer of the claimant; and in the case of a use-plaintiff, must be accompanied by an affidavit that the facts therein set forth are true to the best of his knowledge.” There being no use-plaintiff in this case, the only question presented is the sufficiency of the signing of the lien. A printed blank was used, in which the parties were designated as “Borough of Old Forge v. Foley Estate,” and following the usual recitals it complied in all particulars with the requirements of the act of assembly. There was a blank in the printed form at the bottom of the first page, as follows: “Borough of Old Forge......Borough Solicitor.” The paper was printed to be folded twice, so as to expose on the back a printed statement, with appropriate insertions as follows: “.......Municipal Lien, Dock. No. 1316, :......year, 1914. Borough of Old Forge v. Foley Estate, owner or reputed owner. Municipal Lien, filed April 9, 1914, John H. Bonner, Solicitor for Borough of Old Forge.”

It is to be observed that the statute does not specify at what part of the claim the solicitor or chief executive officer of the claimant is to affix his signature. The only requirement being that it is to be signed by such officer. This claim is signed by John H. Bonner, the solicitor for the Borough of Old Forge. He did not adopt the suggestion held out by the printer by signing his name at two places, — first the one at the bottom of the form reciting the claim, but contented himself with affixing his signature as such solicitor, at the bottom of the last print or back of the form. Following the ordinary preparation of the lien his signature represents his last act in preparing it for filing, and as such, is at the end thereof. The affixing of a signature in an improper place is not material, so if one through inadvertence or mistake signs in a place appropriate for the name of a witness, intending however, to sign for an entirely different purpose, the instrument will not be avoided: 2 Cyc. 206.

It was held in Fisher v. King, 153 Pa. 3, that an instrument, will not be void, because one attempting to endorse a note, but through ignorance wrote his name as a witness. Such alteration is not wilful, or does it come within the reasons of the rule as against public policy. When a signature is essential to the validity of an instrument it is not necessary that it appear at the end of the. instrument. If the name of the party whose signature is required, is written by him in any part of the instrument for the purpose of authenticating it, it is a sufficient signature: 36 Cyc. 449.

No material fact in this lien is challenged. The description of the property, the amount of the lien, the regularity of all the proceedings are practically conceded, save and except the place at which the city solicitor signed the lien, so as to comply with the statutory requirements. The paper as taken from the files, would give notice to the inquirer on first view of its character, the parties to the action and the date of its being filed by John H. Bonner, solicitor for the plaintiff borough, so that the purpose of the act was fully served.

We held in Consolidated Ice Manufacturing Co. v. Blomer, 18 Pa. Superior Ct. 451, that “A judgment entered upon a bond and warrant against a surety will not be opened on the ground that the bond was not signed, where it appears that the bond was printed on one side of a sheet of paper and not signed, and that the warrant of attorney was printed on the other side of the sheet and was signed, both by principal and surety, and contained a full recital of the bond.” While a mechanics’ lien is a creature of the statute, and compliance with statutory requirements is necessary to its validity, it is not to be lost sight of that this statute is to receive a reasonable construction. The question is, does the appearance of the document, taken as a whole, fairly indicate such an omission of a statutory requirement as is calculated to mislead one candidly searching after truth? It can hardly be urged that another signature of the same solicitor at another part of the same claim would have given any additional light on this subject. The name attached was sufficient to identify the officer, and without any statutory directions as to its location on the paper, we feel that this claim is sufficiently signed.

' When a subcontractor did not sign his ñamé at the foot of the guaranty, but wrote it in the blank left at the head thereof for the names of several obligors, if' is a good execution of the, ’ guaranty and the same will be obligatory upon him as such: Benedict v. Hood, 134 Pa. 289.

Assuming that the direction contained in the statute is mandatory, and that the claim must be signed by the solicitor or chief executive officer of the claimant, we hold that on the record as exhibited, this municipal claim is properly signed by the borough solicitor. Allentown v. Ackerman, 37 Pa. Superior Ct. 363, was decided upon entirely different grounds, and does not control the question herein involved.

On inspection of, the claim, as taken from the files in the proper office, it is clear that the city solicitor intended that his signature was a compliance with the statutory requirement. The formal statements of the claim had been set out at large. . It was signed by the proper officer; the letter and spirit of the law had been formally followed.

The judgment is reversed, the lien reinstated and the record remitted with a procedendo.