Phila. Brick Co. v. J. D. Johnson Co.

Opinion by Mr. Justice Green, The learned counsel for the appellee concedes, with entire frankness, that the question as to the legal sufficiency of the plaintiff’s claim in this case, is a new question which has never been decided by this court. It can also be said that it is a doubtful question, and that its solution, at least in some of its aspects, depends upon facts which are challenged by the affidavit of defence. Thus the affidavit alleges that “ the lien is filed more than six months after the materials were furnished, and that some, if not all, of the before-mentioned houses, were completed more than six months prior to the filing of the aforesaid bill.” It is true the last date in the bill of particulars is Sept. 30, 1891, and the lien was filed March 28, 1892, but the [203] bill of particulars was for an enormous quantity of bricks furnished for 65 buildings, and the lien was only upon three of them. Moreover there were two apportioned liens, one upon a block of 45 buildings and another upon a block of twenty, and it was only upon three of this latter block that the present lien was filed. There was no individuation of the quantity of bricks furnished to each building, nor any defined statement as to whether the bricks that were furnished for these three particular buildings were furnished within six months before the buildings were finished. The claim of lien merely apportioned a sum of $3,640 among twenty buildings by an equal proportion of the gross sum upon each. As there are but two entries in the bill of bricks furnished within six months before the filing of the lien, and these are only for a small quantity, it can easily be understood that out of so large a number as 65 buildings they were not all furnished at the same time. The affidavit of defence alleges that some of them were finished more than six months before the lien was filed, and thus a disputed question of fact arises, which ought to be determined by a verdict before the legal question resulting can be properly decided. The affidavit also alleges that a certain street, called Sloan street, running through the whole block which faced on four different streets, was not dedicated or placed on the city plan until after the contract for the entire 65 buildings was made, and therefore there was no right in the plaintiff to file two apportioned liens. This also raises a question of fact which may be, and probably is, essential to the determination of two legal questions, to wit, one whether two apportioned liens on parts of one entire block can be filed in any case, and, if so, whether they can be so filed when, as a matter of fact, the land upon which the whole number of buildings was erected was a unit and undivided by any streets running through it at the time of the contract. In the present state of the record these questions cannot be decided by the court of common pleas or by this court. It will be necessary to have the precise state of the facts determined upon a trial before a jury, and we therefore feel obliged to reverse the judgment of the learned court below, in order that the case, upon all its questions of fact, may be decided by a jury, and, upon its resulting ques [204] tions of law, may be intelligently considered and decided by the court. Judgment reversed and procedendo awarded. See also the preceding ease.