Singerly v. Doerr

The opinion of the court was delivered, by Agnew, J. The case of Phillips v. Duncan, heard at Pittsburg in 1854, decided that a contractor, who goes to a lumber merchant, and obtains his lumber as he needs it for a job on hand, makes a new contract at every purchase, and the Mechanics’ Lien Act bars all of the amount more than six months old when the lumber merchant files his claim. That case was published in the March number of the American Law Register of 1855, p. 304, and no doubt led to the passage of the Act of 14th April 1855. It declares that whenever the items of a mechanic or material-man’s bill for work done or materials furnished continuously toward the erection of any new building are in any part bond fide within six months before the claim therefor, the lien shall be valid for the whole. It had been decided before Phillips v. Duncan, in Bartlett v. Kingan, 7 Harris 341, that if the materials are ftirnished in pursuance of a contract, the filing of the claim within six months after the last of the materials are furnished is in time, and extends the lien to the whole bill. See also Holden v. Winslow, 6 Harris 160 ; Fourth Baptist Church v. Johnson, 4 Casey 153. It is evident, therefore, that the Act of 1855 was intended to do more than merely to link together the items of a bill by means of a contract, or a single order for the whole. Its purpose undoubtedly was, when the materials were in part furnished for a single building, to the same contractor, in the ordinary progress of the work upon it, thus giving to them a unity of purpose, if not of contract, to correct that apparent want of continuity which Phillips v. Duncan had decided to exist, where there was no contract or general order for the whole bill. In any other sense there cannot be continuity of items in a bill furnished without a single contract for the whole, for there must always be an interval of time between the procuring of the articles. In this case the evidence of the work being done for the same building and for the same contractor, in the ordinary progress of his [13] work upon it, and from time to time as it was needed, was amply sufficient to be submitted to the jury. Indeed, there was evidence of its being all done under a general order by the contractor for the whole, approved also by the owner. Nor is it a good objection that the work was done by the plaintiffs at their own mill, distant from the building, and by their workmen upon the materials furnished by Ketcham, the contractor. If the work be done for and on the credit of the building, the place where it is done can make no difference. Steam and machinery have revolutionized the manner of building houses. Much of the work formerly done by hand at or near the building, is now done at the mill. In principle, this point was ruled long ago : Hinchman v. Graham, 2 S. & R. 170. Even materials not used in the building, but bond, fide and properly furnished for it, may be charged: Odd Fellows’ Hall v. Masser, 12 Harris 508; Gaule v. Bilyeau, 1 Casey 521; Harlan v. Rand, 3 Id. 511. The fact, also, that the work was done by the workmen of the plaintiffs, makes no difference. The claim is not made by them, but by their employers. There is no difference between the carpenter, who does his work by hand, and employs his journeymen to do it, and the owner of a mill who does the same work by steam, and employs his workmen at it. The only question is, whether the work was done at the instance of the owner or the contractor, for and on the credit of the building; if so, it is “ work done for or about the erection or construction” of the building. The owner of a saw and planing mill is not a sub-contractor, standing between the contractor and others; but, being employed by the contractor, claims as a workman within the meaning of the law, for his own account. If the contractor for the building had bought his doors, shutters, &c., from another who had employed the plaintiffs to do the sawing, planing, &c., for him, the case would be different, and the plaintiffs then must have looked to the other party who employed them. This is the doctrine of Harlan v. Rand, relied on by the plaintiffs in error. It is not an objection that Ketcham was a contractor only for the carpenter work and lumber of the house. The law does not require the contractor to be such for the whole building. The owner may make his contracts for different parts of the work; as with one for the stone-work, with another for the brick-work, a third for the wood-work, and, if the building be a factory, with a fourth for the machinery. There is no reason why a workman or material-man employed by each contractor to do work or furnish materials within the scope of his contract, should not be entitled to a lien for it, as well as if there were but one contractor for the whole building. Except in the principal cities of the state, it is rare that men contract for the whole building. Generally, con [14] tracts are made with them according to their line of business, as for masonry, carpentry, &c. The plaintiffs’ book entries were objected to on the ground that they were not made at the proper time. Wessell, one of the plaintiffs, testified that the charges were made on the delivery of the work when it was loaded up; that is, to be taken away. In some cases their charges were made by the hour; but for a completed article they charged as a whole on the delivery, and not for the separate items constituting it. It is not a case of sale and delivery of a manufactured article; but the objection is that the sawing and planing done upon the contractor’s lumber were improperly charged at the time of delivery, and not when the work was done. The delivery, it is said, might be delayed several days after the work was done. This objection is not tenable. If anything is settled in this state, it is that the charges are good if made according to the nature of the business, and the usages of the trade in such business. The following eases may be cited, not only for the statement of the principle, but to show the variations allowed in the mode of charging in view of the different kinds of business, and the customs of particular trades. They need not be specially analyzed, but will show that there is no fixed rule for charging in all cases. Kaughley v. Brewer, 16 S. & R. 133 ; Keim v. Rush, 5 W. & S. 377; Koch v. Howell, 6 W. & S. 350; Wollenweber v. Ketterlinus, 5 Harris 398; Yearsley’s Appeal, 12 Wright 531. In the present case there was a bailment of the lumber to the plaintiffs, and work done upon it by them. As bailees, they were liable for the return of the materials, with the work done upon them. What time was more suitable to make their charge for the work than when the articles were loaded up to be returned ? At that time their relation to it ceased, and the control of the contractor from whom the materials came began. It marks the time of transition from one to the other, and is better for the party getting the work done. The material and the work then go together, and there is less danger of his being charged for work upon materials not subsequently delivered. There is no good ground to doubt, in this case, that the work was done on the credit of the building. The day-book is not the only evidence from which the intention to charge the building can be inferred. It is very proper that the book should be precise and particular in this respect, as it may relieve the party in furnishing proof often difficult to be had. But it is settled now that the intent to give credit to the building may be shown by other evidence: Church v. Davis, 9 Watts 304; Batchelder v. Wolf, 6 P. F. Smith 87. The book and the parol evidence prove clearly, in this case, that the work was done on the credit of Mr. Singerly’s building at Broad and Jefferson streets. The order of September 18th 1867, by Keteham, in favor of the plaintiffs, on Singerly, [15] for $4745, balance of work done and materials furnished at Broad and Jefferson streets, was clearly evidence. It identified the building, and showed a settlement with the contractor, and the balance due on the work. It was an admission of the contractor in a matter falling within the scope of his authority: Dickinson College v. Church, 1 W. & S. 462; Odd Fellows’ Hall v. Masser, 12 Harris 507. Judgment affirmed.