Diller v. Burger

The opinion of the court was delivered, by Agnew, J. We discover no unfairness in the submission of this case to the jury by the learned judge in the court below. He carefully informed the jury that they were to determine the facts, and informed them what facts were to be determined by them. It is true in narrating the case in order to present to their minds the questions involved, he spoke of the new building and the old one, the time when one was finished and the other begun. But in doing this he only used the language of the witnesses and followed the evidence. The facts of the case are perfectly clear. Burger built a brewery and finished it in March 1867, coinciding with the book of the plaintiff, which shows that in the latter part of March the work on the marsh rake and the malt-mill was lumped and charged without date. His next entry was on the 29th of November 1867. The new brewery was then determined upon, and Burger testifies it was no part of the first plan to erect it. The reason for erecting the second brewery was, that the first was built over the vault, and the hot water used in it ran down into the vault, raising the temperature and spoiling the beer, The claim filed described them as two buildings; one 40 feet in length and 28 feet in width, and the addition, as it is termed, 33 feet long by 24 feet wide. There is no pretence that the second [438] building formed any part of the plan originally, or was even contemplated when the first was put up and finished. Indeed the evidence makes it clear that it was begotten by a necessity unknown to John A. Burger when he conceived his plan and built the first brewery. We therefore can discover nothing in the charge of the judge which looks like unfairness in stating the facts. Nor do we discover any error in the rule given to the jury. He left it fairly to the jury to say whether the additional building was but a continuance of the first, and whether the work done and machinery furnished for it was but a continuation of the work and finishing of machinery — whether it was all one continued act, and the original building and the addition were but one building; and if so, instructed them that the plaintiff’s lien was filed in time. It is evident that the plaintiff’s idea of the unity of these two buildings rests on the connection between the machinery in them. Part of the machinery in the old brewery had been removed into the new, and new machinery made and adapted to the change, and the machinery between the two buildings connected by shafting. The whole being made and put in and adapted by himself, the plaintiff thinks of it as one continuous work, and claims the price of the whole. But his work does not give legal unity to the two buildings. The erection of the second building was a new undertaking, the result of an entire change of plan, and had no connection with the original scheme. The adaptation of the machinery to run them together did not give character to the second building so as to make it a continuous erection with the first. The fact that the addition was a new-building, the result of a new plan and a new undertaking, still remained. It is evident that the stonemasons and the carpenters who worked upon the second building could have no lien on the old brewery. Their work did not concern it, and was not done on the faith of it as a security. Now it is clear that the distinctness between the two erections which would cut off them from the old brewery would cut off the plaintiff also. As a question of lien the plaintiff’s first work has no connection with the second. It was not in pursuance of a single contract. When begun on the first brewery it was not contemplated to be carried into the second. It is therefore not helped out by the fact that but a short interval intervened, that he made the whole machinery, or by the operation of the 2d section of the Act of 14th April 1855, Brightly 713, pi. 35. That act applies to items for work done or materials furnished continuously to the same building, and was intended to link together the items of an account for work or materials where there was no contract for the whole, or no order which would embrace the whole within a single undertaking. The answer of the court to the plaintiff’s 2d point was therefore a [439] correct statement of the law as applied to the facts of the case. This case is governed hy the principles stated in Norris’s Appeal, 6 Casey 122, Miller v. Hershey, 9 P. F. Smith 64, and Armstrong v. Ware, 8 Harris 519, and is totally unlike Nelson v. Campbell, 4 Casey 156. The last case is very peculiar, and the decision was affected by the evident design of the owner to incorporate the several additions with the original building, and to make one of the whole; and also by the necessity of the ground on which they stood for a common use as a single building. It can scarcely become a precedent for another case. The judgment is affirmed.