Appeal of Hofer

Opinion, Mr. Justice Trunkey : Hofer testified that he furnished all the lumber and did all the work in the erection of the building; that he began on Oct. 16, 1882, and finished on Oct. 9, 1883; that thq greenhouse was not completed till the ventilators were put in, and it was unfit for use without; that Mr. Baldy said little, and Mrs. Baldy directed the work; that he quit work on the house in the fall at the instance of Mrs. Baldy, and worked out some shelves in his shop which he delivered in the first part of January ; that he put up the shelving on the 7th and 9th of April, and they did not have the fixtures for the ventilators, and said they would not be necessary till fall, for the old flowers were frozen and the others could stand out; that Mrs. Baldy told him when he left to come back to fix the ventilators, but fixed no time, and called him back in September. It is agreed that Hofer’s testimony shall be taken as the facts. The learned auditor had no difficulty in finding that the work done in April was continuous with that done before, for the conclusive reason that the building was unfinished, and it was understood that he was to finish it. That two months had intervened since he did the work in January was no matter. When the shelving was put in, the building was pronounced finished, except the ventilators. These were so material that the building could not be used until they were supplied, and it was understood that Hofer would put them in as soon as needed in the fall. He did, within six months from the doing of the work in April, and completed the building within the time designated by the owner. There was no contract to do the entire work; had there been, no doubt would arise whether the claim was filed in time. The auditor finds that Hofer was employed by the day. That employment continued, not every [364] consecutive day, but every day the employer ordered until the employee completed the building. For such cases as this the act of April 14, 1855 was enacted: P. L. 238. “ 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: ” Dillen v. Burger, 68 Penn. St. 432. When materials are furnished and work done in the erection of a building, as ordered by the owner or contractor from time to time in the ordinary progress of the work, the act of 1855 gives to them a unity as if furnished under a contract or order for the whole. In any other sense there cannot be a continuity of items without a contract for the whole ; for there must always be an interval of time between the procuring of the articles, and so there is between different items for work, done from time to time, as ordered: Singerly v. Doerr, 62 Penn. St. 9. The question, usually, is not so much respecting the length of the interval, as whether the work was ordered and done in its ordinary progress from beginning to completion, as conducted by the employer, with an understanding that the employment should continue, though such understanding is not binding as a contract. Upon the facts in this case it is a reasonable inference that both parties contemplated that Hofer would finish the greenhouse, and as he did all the work from the beginning, it was continuous in the sense of the statute. Decree reversed, and it is considered and decreed that the sum of $241.29 be paid to the appellant, and the balance of the fund, after payment of the costs as stated in the decree of the court below, be paid to R. C. Neal, trustee of Martha Clark. Appellee to pay costs. Record remitted. Mr. Chiee Justice Mercur dissents for reasons stated in the opinion of the learned judge below.