McKelvey v. Jarvis, Halpin & Co.

Mr. Justice Sharswood delivered the opinion of the court, The objection that the contract was not set out in the claim filed was properly overruled by the learned court below, under the case of Lee v. Burke, 16 P. F. Smith 336, which decides that where [418] the plea in a scire facias on a mechanic’s lien was “no lien,” no question as to the sufficiency of the lien on its face can arise on the trial of issues of fact. This disposes of the first assignment of error. The second assignment relates to the question of appropriation of payment. There was no error in affirming the plaintiff’s first point: Foster v. McGraw, 14 P. F. Smith 464. The third assignment, however, must be sustained. There was evidence that the contract for plumbing and gas-fitting was substantially completed, and was accepted by defendant as finished before May 10th 1876, and that defendant claimed that the work had not been done according to contract, and that plaintiffs agreed to do, and did do, other outside work to compensate for the deficiency. There was a street-washer put in June 28th 1876, according to Eailey’s testimony. According to the evidence given by Samuel Jarvis, McKelvey, the defendant, met him and complained about the arrangement he was using for a hose. “ I told him that never was put in for that purpose at all; it was merely a branch put in for the use of the bricklayers to make mortar, and that the street-washer arrangement had been overlooked. He said our arrangement was to put in a hose-plate for each house. I admitted that, and we talked the matter over a little, and he wanted it done right away, and he proposed the street-washer; wanted to know if that would answer in place of the other two. I said it would if he was satisfied, and he says, ‘Go ahead and put it in.’ ” This evidence certainly covered the facts presented in the defendant’s third point, which ought, therefore, to have been affirmed, for if the jury believed on this testimony that the street-washer was outside work, done to compensate the deficiency in the work done under the contract, it ought not to preserve the lien. In like manner we think the refusal to affirm the defendant’s fourth point was error, for certainly if the jury found that the contract was completed before May 10th 1876, the claim having been filed November 10th 1876, work or materials furnished after that time under any new arrangement or with any purpose whatever would not preserve the lien. We are of opinion also that there was error in refusing defendant’s fifth point, which was sufficiently based upon the evidence of Jarvis above stated, independently of any evidence offered and ruled out. We are of the opinion, however, that if the defendant, being the owner as well as contractor, did agree that the street-washer should be put in as a substitute for the hose-plates provided in the original contract, and that it should be done under that contract, and not to be paid for as extra work, and the plaintiffs assented and did the work, it would have the effect of extending the time for filing the claim in six months from the time such work was done. This was a question for the jury, and ought not to have been assumed as a [419] question for the court, and the seventh assignment of error must therefore be sustained. Judgment reversed, and a venire facias de novo awarded.