Homœopathic Ass. v. Harrison & Bro.

Opinion, Me. Justice Claeic : Assuming the truth of the facts set forth in the several affidavits of defence, we think there was sufficient to send this case to the jury. The lien was filed June 26,1887. The only items charged within six months are two soapstone hearths, March 9, 1887, $18.50, and a laundry stove and pipe, May 27, 1887, $25.00; the last items preceding these having been delivered about eight months before the lien was filed. The affidavit sets forth that the hearths were. furnished by the plaintiff “ gratuitously ” to supply the place of two other defective hearths of similar size, previously furnished and charged, more than six months before the filing of the hen; that these hearths were furnished simply to make good the previous charges, and that on the day of the entry of the charge of the $18.50, a corresponding credit was entered for the same amount; that the entries were made merely for convenience in bookkeeping, and do not represent such a transaction as would extend the lien. The items of the claim indicate that the work was substan [32] tially completed on the 30th of October, 1886; and, if the hearths were subsequently put in by the contractor, merely to compensate the deficiency in the work which had been previously done, in order to make good the charges already embraced in his claim, we are of opinion this should not operate to extend the time for filing of the lien. The case is similar in principle to McKelvey v. Jarvis, 87 Pa. 414. There the contract was for the plumbing of two houses, and the work had been completed before April 1st, 1876, whilst the lien was not filed until November 10th in the same year; but on or about June 18, 1876, the defendant called the plaintiffs’ attention to the fact that they had neglected to put in a street washer; the plaintiffs said the contract did not call for a street washer, but for two hose plates, one for each house; and that they, the contractors, had overlooked them, and forgotten to put them in; that they and the defendant then and there made an agreement that the plaintiffs should be released from their undertaking to put in the hose plates, and, in consideration thereof, the plaintiffs agreed to put in a street washer, near the curb on the outside of the sidewalk, and that they did so. The court, Shakswood, J., said, if the jury from the testimony believed “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.” It was intimated, however, that if hose plates had been provided for in the contract, and the street washer was put in under the contract, as a substitute therefor, at the owner’s request, the street washer would constitute part of the lien. So here if the hearths had been removed, not because of any deficiency in them, but to replace them with another kind or quality at the owner’s request, upon the same footing as the work already done, a different case would be presented. In McKelvey v. Jarvis, the materials were furnished in pursuance of an entire contract; here the lien was for work done and materials furnished continuously towards the erection of the building under the act of 1845 ; but this difference in the facts will not render the rule inapplicable. It is the continuity of the claim which must give it effect; and, if the work was practically complete in October, 1876, and the hearths were supplied six months afterwards, simply as a substitute for de [33] feetive materials already furnished, they cannot be said to have been delivered during the ordinary progress of the work and in continuance of the claim, and it follows that such a charge would not extend the time for filing the lien. The laundry stove, it is stated, was “ a small portable stove, for heating flatirons; ” “ it was in no sense any part of the building; ” “ it was not used or intended to be used in the construction or erection ” of the building; it was “ an ordinary piece of personal property,” “ as much adapted for use in one laundry as in any other.” If this be so, it is idle, we think, to suppose that such a charge could extend the time in which to file a lien against the building. The judgment is reversed, and a procedendo awarded.