N. Green & Co. v. Thompson

Opinion by Mr. Justice McCollum, The buildings against which the claim in suit was filed were “ constructed under the contract designated as- exhibit B,” and there is nothing in it to suggest that it is subject to or in any manner qualified by the contract of February 13, designated as exhibit “ A,” nor is there anything in the latter from which it can be inferred that any provision of it is applicable to the former. The defendants have not printed in their paper-book any evidence which tends to show that there was a parol agreement modifying the contract under which the buildings liened were erected, nor is there an intimation in their printed argument that such an agreement was made. It is useless to [613] inquire whether contract “ A ” contains a stipulation against liens, until it is shown that its provisions extend to, and govern the construction of contract “ B.” We cannot say therefore that the court erred in the ruling complained of in the second specification, and as the defendants admit that the third specifisation must stand or fall with the second, the third need not be discussed or considered. Under section 1 of rule 8 of the courts of common pleas of Allegheny county, the defendants were bound to file their answer to the plaintiff’s claim, and such items of the claim and material averments of fact as were not directly and specifically denied by them must be taken as admitted. An examination of the claim and the answer shows that the only averment of fact in the former which is denied in the latter is that the lumber was furnished on the faith and credit of the buildings referred to therein. Where the plaintiff in a mechanic’s lien case has complied with all the provisions of the statute relating to the lien he claims, it is presumed that the materials were furnished, or the work was done, on the credit of the buildings : Hommel v. Lewis, 104 Pa. 465, and Noar v. Gill, 111 Pa. 488. This is a rebuttable presumption, but it casts on the defendants the burden of showing that it is not in accordance with the fact. In this case, therefore, in the only issue of fact made by the claim and answer, the burden was on the defendants, and in the discharge of that burden they should have been allowed to show any fact or circumstance tending to negative the presumption. That the lumber charged in the bill of particulars did not go into any of the buildings mentioned in the claim was such a fact or circumstance, and the defendants should have been permitted to prove it if they were able to do so. As we understand their contention the purpose of the question to which their fourth specification relates was to show that the lumber charged as above stated was not used in the construction of the buildings included in the claim. We think therefore that the court erred in rejecting the question. The statement of the account under date of September 27, 1893, and designated in defendants’ paper-book as exhibit “ 2 ” shows that the lumber was charged by the plaintiff to the contractor. This was a circumstance affording some support to the defendant’s claim that the lumber was not sold on the credit [614] of the buildings: Hommel v. Lewis, supra. That the lumber was not used in the buildings, and that it was charged to the contractor were matters proper to be shown to and considered by the jury on the issue of fact made by the claim and answer. We do not discover any error in the rulings complained of in the 5th and 6th specifications, and it does not appear in the 1st that there was any exception taken, bill sealed, or objection made to the admission of the papers mentioned in it. In accordance with the foregoing view we sustain the 4th and 7th specifications and overrule the 1st, 2d, 3d, 5th and 6th. Judgment reversed and venire facias de novo awarded.