Rush v. Able

Mr. Justice Trunkey delivered the opinion of the court, Extra work and materials done and furnished by a contractor during performance of his agreement, may be included in and constitute a part of his claim, if the claim be filed within six months after completion of the contract. Though outside the contract, they are so closely connected with it, that they have always been included with those done and furnished under the contract, in filing the claim. As shown by the learned judge below, the lien will be continued if the claim be filed within six months after the extra work was done, but more than six months after work on the contract was completed. He was clearly right in holding the converse. Including contract and-extra work in same lien subserves the interests of both contractor and owner, and it accords with such interests, as well as with the statute, that the claim may be filed within six months after the building is finished, even if one kind, in fact,-was not within six months of the filing. This claim states that the work and materials were done and furnished within six months last past, and refers to the bill of particulars as setting forth the time when they were done. At the foot of said bill is the following: “ The work was commenced on or about the 14th day of June 1872, and finished on the 28th day of June 1873, on which day the last work was done, in which time said materials also were furnished.” ’ The lien was filed December ,27th 1873. Prefixed to the first item, in the bill for extra, is the [159] date Febuary 19th 1878, and all others follow without mention of time. Doubtingly and reluctantly the court struck from the record so much of the lien as relates to extra work and materials, because of the plaintiff’s failure to comply with the statutory “requirements as to kind, quality, amount and time.” In Bayer v. Reeside, 2 Harris 167, the claim set forth that the work and materials were done and furnished “ within, six months last past, to wit, between the 1st June 1848, and 1st April 1849,” and the bill of particulars was without date. The defendant demurred, assigning for cause that time was not well stated. No question was before this court other than the validity of the lien, and. the judgment was affirmed. True, it is said in the opinion, that after a trial on the merits, technical objections are disregarded, but the demurrer.was before trial and treated as raising the question as pointedly as would a motion to strike off. That decision has not been overruled. The date of a bill of particulars for materials “furnished within six months” was December 3d 1868, the time of filing; in the margin to the first item was June 9th, without any year; there was no date to any other item. After a sheriff’s sale of the premises, upon application of a subsequent lien-creditor, the court struck off the mechanics’ lien, which judgment was reversed. “All that is required is such certainty as will enable those interested to discover during what period the materials were delivered, or the work done so as to individuate the transaction: Calhoun v. Mahon, 2 Harris 56. “ It has been more .than once said we must not be hypercritical ” when scanning this species of lien and estimating its sufficiency.” Per Bell, J.: McClintock v. Rush, 13 P. F. Smith 203. Both these cases were under the Act of 1836. Shields v. Garrett, 5 W. N. C. 120, was by a sub-contractor, and the claim was sought to be .sustained under the Act of 1849, in force in Philadelphia and Chester counties. Hahn’s Appeal, 3 Wright 409, was a case under the Act of 1845, and relates to claims for work under contract. In the light of Bayer v. Reeside, and McClintock v. Rush, it is manifest there is no departure from previous decisions in holding that no portion of this lien is defective because of insufficient setting out of time. The rule is certainty to a common intent, not precision, in statement. If the entire bill is to be deemed of the date, February 19th 1873, it cannot be struck out, for the contract work was done within six months of filing the claim. But it is unreasonable to say the whole bill is of that date, for on its face it is patent that the items of work and material were at different times. That really applies to the bill of coal, to the other items only by fiction. The extra bill includes many things apparently within the contract for erection of the building, but where they are well stated they cannot be struck off on motion. The claimant may be able [160] to show, at trial, by sufficient proofs, that they are without the contract and furnished at the owner’s request. Does the phrase, “architect’s charges and fees” exhibit the nature and kind of work he did ? The claimants so affirm, resting on authority of The Bank of Pennsylvania v. Gries, 11 Casey 423. There the architect had a contract to perform labor in and about the erection of the buildings, of which this court said, “ This is labor, mechanical labor of a high order, contributing its proportionate value to the beauty, strength, and convenience of the edifice.” In saíne opinion it is said, “A mere naked architect, and who may be such without being an operative mechanic, who draws plans in anticipation of building, usually could hardly be supposed to be within the act which provides a lien for work ‘ done for or about the erection or construction of the building.’” In Price v. Kirk, C. P. Chester county, ante, page 47, it was decided that a claim by an architect, for preparing drawings and specifications for a building, is not the subject of a mechanic’s lien. Butler, P. J., gave conclusive reasons for the judgment, which has just been affirmed in this court. When an architect claims to have a lien for charges and fees he must show work done, for which the statute gives a lien, and such work is not shown by the name of his calling. Especially should the kind of work be set forth, distinctly, when it is claimed as extra by the contractor. It will hardly be presumed that he is entitled to a lien for fees for superintending and directing himself in the performance of his own contract. The items, “bill of Phillipsburg Iron Co.” and “T. M. Lesher & Bro.’s extra bill,” contain no sign of any kind of work or material in the construction of the building. It is vain to surmise what they are for — the statute requires expression, not occultness. The “ bill of coal and carting same” exhibits the kind of materials ; it is not a subject for mechanics’lien. Of like character is “extra boarding for Householder for extra time.” Judgment reversed, except as to the following items, namely, “bill of coal and carting same, $489,50; “bill of Phillipsburg Iron Co., $794.30; “ extra boarding for Householder for extra time, $19.60; “T. M. Lesher & Bro.’s extra bill, $3701.12;” “architect’s charges and fees, $3617.65;” and as to these excepted items, affirmed, and procedendo awarded.