Schenck v. Uber

Chief Justice Agnew delivered the opinion of the court, The precise question in this case must be distinguished from others seemingly akin to it. It is not whether the engine, machinery and cage constituting a hoisting machine or elevator are realty. Certainly they are when put in by the owner as a part of his building. Such machines have become essential to the convenient use of large stores, factories, hotels and the like; and constituting a part of the construction of the building, pass with it. The question is not whether a lien may be created by the owner, or a principal contractor for the erection of the building. Undoubtedly, as for any other part of the construction of a building necessary for its use, according to its kind, a lien may be created for it by the owner or a principal contractor. The true question before us is, whether the contract under which the lien is attempted to be fastened upon the building is such a contract as confers on the contractor the power of the owner to bind the building by a lien for the work and materials furnished. Were Levan & Co. such contractors here ? It is thought they were, and Singerly v. Doerr, 12 P. F. Smith 9, and Duff v. Hoffman, 13 Id. 192, are relied on as authorities. But they are not authority for the posi [35] tion, unless we overlook what was said in the cases themselves, and the true intent of the Mechanics’ Lien law. To do so would be to confound all contracts relating to useful fixtures, or minor parts of the building with a contract for the erection and construction of the building itself. In the case of Harlan v. Rand, 3 Casey 511, following the letter of the Act of the 16th June 1836, it was said that the 12th section of the act distributes the parties to the work into three classes, according to their several functions, viz.: the owner, the contractor, called also the architect and builder, and the workmen and material-men. The law establishes one link and one only (says the opinion) between the owner on the one hand, and the workmen and material-men on the other. It requires the lien to be founded on contract, and it recognises no one as having power to contract, so as to make a lien against the building, except the owner and the contractor or architect. It is evident the writer of that opinion had in view the simple' letter of the statute, and therefore a single contractor for the whole building. But when the case of Singerly v. Doerr arose, we saw that too close an adherence to the letter would frustrate the purpose of the act. Many changes in business had taken place after the passage of the act, and many new subjects were added to those for which a lien was^ given. Besides, the law having originated in the necessities of Philadelphia, but having been finally extended over the whole Commonwealth, it was seen that the customs of this city were not always the same as in other places, especially in the country. In many instances the owner himself performed the functions of the architect or builder, and made contracts with different persons for the leading divisions of his building. That with one he would contract for the cellar and rough masonry, with another for the brick or frame work, and a third for the wood work, these all being leading parts in the constitution of the whole. Now, the main intent of the law being to secure the workmen and material-men whose labor and material enter into the construction of the building, and constitute its chief value, it was seen that to confine the power to bind the building to a single contractor, would emasculate the statute, whenever two or more persons were separate contractors for the principal parts of the building. In fact it would put it into the power of the owner always to defeat the main purpose of the statute, by simply dividing the construction of the building into separate contracts. Hence it was decided that the law does not confine the erection and construction of the building to a single contractor, but the owner may commit the main or leading divisions of the building to different contractors with power to each in his department to bind the building with a lien. The same question again arose in Duff v. Hoffman, 13 P. F. Smith 192, where the reasons were given more at large, and the limits of the power to bind the building under contract more distinctly defined. It was [36] said, “ such contractor, however, must be one within the contemplation of the statute, to wit: a person employed to erect or construct the building. It is the contract for erection which communicates the owner’s power, and places the contractor alongside of the architect or builder. But there is a palpable distinction between a contract to erect and a contract to furnish toward the erection, whether it be work or material. One who contracts to put up a building, or one of its leading divisions, as its brick work or its wood work, is not a mere workman or a mere material-man. He is employed to erect and construct, not merely to work. Hence, we held in that case, that a lumber dealer employed merely to furnish lumber is not a contractor for the erection of the building or any division of it. He is a material-man merely, and not having a contract to erect, cannot bind the building for lumber furnished to him by another. Now this is the very point in this case. Levan & Co, were not contractors for any leading division in the erection of the building, but were merely machinists employed to put into the building two hoisting machines for goods and passengers. They employed Uber & Tees to make the movable cage or car. Now, unless Levan & Go. were contractors for the erection of a primary division,of the building, they did not, according to the principles in Singerly v. Doerr, and Duff v. Hoffman, possess the power of the owner to bind his building. That they were not such contractors is very clear. Their contract was simply minor and auxiliary. They did not even contract to construct that part of the building called the well, in which elevators move up and down. They contracted to put into the building the engines, drums, cages and their necessary attachments, guides and steam pipes. Now it is evident this was not a contract for the erection Qr construction of any primary or main division of the building, but one merely for certain useful, or it may be necessary machinery, for the'convenient use of the building. Granting that when put in, it became part of the realty and as a necessary fixture it would pass with the building, yet'being put in by one not employed in the erection of any main division of the building, his contract was not such as communicated to him the power of the owner to bind the building with a lien for work and materials. Had the contractor for the wood work of the house been authorized, as a part of bis contract, to put in these machines, we -would perceive that being engaged in the actual erection and construction of one of the primary divisions of the building, and these being a part of his contract for construction, he had the owner’s authority to fix liens upon the building for this part- of the work. ’ But if we extend the doctrine of lien to every one employed in furnishing toward the building things which are convenient, useful or even necessary for the enjoyment of the property, but which do not con [37] stitute a part of the contract for the erection and construction of any primary division in the building, we abandon the very idea of Singerly v. Doerr, and Duff v. Hoffman, which simply extended the power of the owner to the contractors of leading parts of the building in order to reach the true intent of the Act of 1836'. In avoiding Seylla, we founder in Charybdis. To hold that a minor contractor, who undertakes to put in fixtures or conveniences, may bind the building for the work and materials furnished to him by others, would expose the owner to untold claims, and sink his building in costs. The multiplication of liens by such means would become an evil so great, legislation would have to remove it. But so long as we hold that the power of the owner can be communicated only to a principal contractor for the whole, or for some major and essential division in the erection of the building itself, we reach the spirit of the law, and protect those engaged in the process of erection under him, and at the same time save the owner from an indefinite multiplication of liens. This limit is clear and reasonable, and in the language of the opinion in Harlan v. Rand, “ it leaves to the owner a reasonable control in relation to the liens with which the house may be encumbered, and prevents their indefinite multiplication by others who are under no contract relation with him, for, I may add, a contract that is not for the construction of a leading division in the work of erection, is no contract within the meaning of the Act of 1836.” To cite Singerly v. Doerr, and Duff v. Hoffman, for any other doctrine; is contrary to the express words of the opinion before quoted. In a general sense all fixtures and useful conveniences that pass with the building are a part of it, but contracts to construct and put them in are not necessarily such contracts for erection and construction as the Act of 1836 contemplates. It may be said, however, that there will be cases where it is difficult to determine whether the contract is one for erection and construction of a leading or primary division of the building. This may occur, but the only consequence is that the fact must be decided by the jury on the testimony of those who are familiar and skilled in the business of building, under the guidance of the court as to the true principles applicable to the case. This is not novel, such inquiries being of frequent occurrence, especially in relation to alterations and additions to old buildings, before the act, giving a lien for repairs and alterations. * In the present case it is clear that the contract for the engines, drums, cages and attachments of these hoisting machines, is not a contract for any leading or primary division of the building in the process of its erection, but is one for fixtures merely, useful, convenient and necessary, in the use of the building. Levan & Co., therefore, had no power to bind the building with a lien for the cages put in by the plaintiffs below. Judgment reversed.