Barclay v. Wainwright

Mr. Justice Sharswood delivered the opinion of the court, It would not be easy, and might be dangerous, to lay down any general rule by which to determine, in all cases, whether an improvement lease does or does not come within the intent and spirit of the 24th section of the Act of April 28th 1840, Pamph. L. 474, so as to subject the ground and building to the lien of a mechanic or material-man. As was said by Chief Justice Lowrie, in Woodward v. Leiby, 12 Casey 441, “We do not confound building contracts, payable in rents, with improvement leases; though we do not anticipate experience by any theoretical definition of their exact differences. Our most common improvement leases provide only for such labor as is to be done by the tenant himself and his servants, and no question of mechanic’s lien can arise on them. But contracts of letting and building are infinitely various in their forms, and no definition of ours can prevent this variety, for none would be bound to conform to it; and we must be content to ascertain, as cases arise, the special character of each contract, and the class to which it belongs.” It will not do, therefore, to hold, as we have been strongly urged to do by the learned counsel of the plaintiff in error, that the presence of an express covenant by the lease to build, is that which distinguishes a building contract from an improvement lease. It is true there was such a covenant or agreement in Woodward v. Leiby, 12 Casey 437; Leiby v. Wilson, 4 Wright 63; and Fisher v. Rush, 21 P. F. Smith 40; but in Hopper v. Childs, 7 Wright 310, there was none. The lessors there agreed to let the lessee erect, at his own expense, a shingle mill; to allow him to use timber on the tract; and the lessee was to pay the lessor a certain sum for every thousand shingles manufactured by him. It is true that in the latest case, Reid v. Kenney, 4 W. N. C. 452, the absence of the covenant to build was relied on, but it was not all that was relied on, for after [196] stating that the lease contained a mere license, of which the lessee might or might not avail himself, the opinion adds : “ His omission to build, or his actual building, in no wise affected the' amount of the rent he was to pay.” Considering the whole agreement before us, we think it falls within the category of a building contract. It is true that there is no express covenant to build; but the amount of the rent the lessee was to pay was directly affected by his omission to build, or his actual building. If he did proceed to erect the contemplated building, he was to he released from the payment of the stipulated •rent for the first year. In effect the lessor contributed this sum of $8840 towards the erection of the building. This lease is undoubtedly a very ingenious instrument; hut if we were to allow it to prevail as a mere improvement lease, the lien of mechanics and material-men might in every case be evaded. We think, however, that there was quite enough in the affidavits of Rogers and Barclay to carry the case to the jury. The former swears very positively, that at the execution of the agreement for the collateral, May 18th 1876, “it was then and there distinctly understood and agreed between plaintiffs and deponent that no proceeding would he had upon said mechanic’s claim until the maturity of said mortgage, which agreement was the consideration of said assignment, and upon the faith of said agreement deponent signed said paper.” This is precisely within the case of Miller v. Henderson, 10 S. & R. 290; and the facts as sworn to by the affidavit would he evidence of fraud, where under all the cases parol evidence is admissible to vary the terms of a written contract. We think also there was sufficient in Barclay’s affidavit to prevent the entry of the judgment below. He says that he believes, and expects to be able to prove, that the labor and materials for which the claim had been filed, “were not furnished upon the credit of said land, but solely upon the transfer of other securities” to the plaintiff by the contractor, as he has narrated in the affidavit. If made out to the satisfaction of the jury, this certainly would be a good defence : Presbyterian Church v. Allison, 10 Barr 413. Judgment reversed and procedendo awarded.