Bohem v. Seabury

Per Curiam: The single assignment of error is that “the court below erred in striking off the lien entered.” This presents the question whether there was such a defect apparent upon the face of the record as justified the action of the court. We think there was. The claim was filed by “ Jacob A. Bohem, successor to Geissinger & Bohem, against James M. Seabury, owner or reputed owner and contractor,” under a special contract between Edward J. Geissinger, contractor, and James M. Seabury, as owner, for doing certain work, in and about the erection and construction of certain houses for the said Seabury. It was an entire contract for the consideration of $2,400. The lien was filed for a portion only of the work and materials referred to, amounting to $1,527.50; and there was no averment that he had completed the contract, or had been excused by the owner from doing so, or that the owner had prevented him from completing his contract. In other words, the lien upon its face showed that the contractor had not finished his work as specified in the contract. Prima facie, therefore, he was not en [597] titled to recover. There was nothing upon the face of the lien which showed any right of action; on the contrary, it showed the reverse. Moreover, the plaintiff was a stranger to the contract, and has shown no right to avail himself of it in order to file a lien. The contract was with Geissinger, as before stated; the lien was filed by Bohem. There was no assignment of the contract; indeed, it was provided therein that “ the contractor shall not sub-let the work, or any part thereof, without consent in writing of the proprietor.” The averment in the claim that “ the said claimant, as a part of this, his claim, hath also attached hereto a contract (copy) made between the said James M. Sea-bury and Edward J. Geissinger, who was subsequently a member of the firm of Geissinger & Bohem, to which said firm this claimant is the legal successor,” does not help the matter, in our view of the case. The fact that Geissinger, subsequent to the contract, entered into partnership with Bohem and that the latter was the legal successor of said firm, does not create a contract relation with Seabury, or authorize him to file a lien under the contract between Geissinger and Seabury. This view renders it unnecessary to discuss the effect of the stipulation in the contract, in regard to the right of the contractor to file a lien, under the rulings in Long v. Caffrey, 98 Pa. 526; Scheid v. Rapp, 121 Pa. 593, and Schroeder v. Galland, 134 Pa. 277. Judgment affirmed.