W. H. Harrison & Bro. v. Homœopathic Ass'n

Opinion, Me. Justice McCollum: If the facts alleged in the affidavit of defence appeared in the appellants’ testimony, it was the duty of the court, on the motion of the appellee, to enter a compulsory nonsuit. When this case was here before, 120 Pa. 28, it was decided that néither the furnishing and setting of the two soapstone hearths on the 9th of March, 1887, to compensate the deficiency in the work done and charged for on the 7th of July, 1886, nor the furnishing and setting of a portable laundry stove, which was not used or intended to be used in the construction of the building, but was an ordinary piece of personal property, “as much adapted for use in one laundry as in any other,” extended the time for filing the lien. The evidence produced by the appellants on the trial brought their case fairly within the principles of this decision, and demonstrated that their claim was not filed in time. They proved that the two soapstone hearths put in by them on the 9th of March were to supply the two broken soapstone hearths included in their charge of the 7th of July preceding; that they were required by the architect to replace the broken hearths with sound ones, and that they did so without protest or additional compensation. They admit that they made no extra charge against the owner or contractor for the new hearths, and that they were not present when the broken hearths were set; and they failed to show by their workmen who delivered the hearths in place that they were then sound and in good condition. It is obvious, from the appellants’ account of the transaction, that the new hearths were supplied by them gratuitously, to compensate for the defective hearths they had previously furnished. It clearly appears from their testimony that these hearths were broken when first seen and inspected by the architect, and whether their condition was caused by defective materials or defective setting is unimportant. It is true that their bill of particulars contained a charge under date of March 9,1887, of $18.50 for two soapstone hearths, and a credit of like amount for two soapstone hearths, bjit, in view [565] of their explanation of them, these entries are of no consequence. It was held in McKelvey v. Jarvis, 87 Pa. 414, that work done to compensate defective performance of a contract for work and material in the construction of a building will not preserve the lien, but that work substituted for that called for in the contract may do so. In the former case the contract is unchanged, the work is done without charge to the owner or contractor, and to make good the previous default of the mechanic or material-man; in the latter, the work is done under a contract modified by the agreement of all the parties interested in it. This distinction was noted and illustrated by our Brother Clark in Homœopathic Ass’n v. Harrison, 120. Pa. 28. = The rule laid down in McKelvey v. Jarvis, supra, is not in conflict with the decision on the claim of Brenneman & Ward in Parrish’s App., 83 Pa. 111. In that case the work done by the claimants was in exact compliance with the terms of their contract with the owner, and the alteration of the mud-drums was made necessary by a mistake in the drawings furnished by the latter. It was not done to compensate a deficiency in the work of the claimants, but was required by the owners to correct their own error, at their own expense. The laundry stove was included in the specifications for the hospital, and in the proposal of the appellants which was accepted by McNichol the contractor. It was placed in the laundry room of a building which was not embraced in McNichol’s contract, and the appellants knew its destination before they delivered it. It was a portable stove constructed for the purpose of heating laundry irons, but it was no more a part of the building than an ordinary parlor or kitchen stove. It was accurately described in the affidavits of defence, as the appellants’ testimony clearly shows. The mere fact that it was furnished under a contract which included materials for the construction of the building, does not entitle the material-men to a lien for it. A contract to build and furnish a dwelling-house according to certain plans and specifications, and for an entire price, would not confer upon the contractor a right to a lien for the portable stoves, the carpets, and other furniture essential to its use as a dwelling. In Dimmick v. Cook [566] Co., 115 Pa. 573, the claimant was allowed a lien for steam-heating apparatus and engine, laundry apparatus, ranges, and cooking apparatus, etc.; but these things were not only included in the original plans and designs of the building, but were permanently located in it by masonry, pipes, shafting, etc. The lien was sustained upon the ground that the apparatus was permanent in its character, a constituent part of the building, and would pass with the freehold. As we have seen, the appellants are not entitled to a lien for the soapstone hearths put in on the 9th of March, 1887, nor for the laundry stove furnished on the 27th of May following. The last work done and materials furnished by them, for which they could have a lien, was on the 30th of October, 1886, and they did not file their claim until the 25th of June, 1887. As the claim was not filed in time, the nonsuit was rightly entered. Judgment affirmed.