Wharton v. Real Estate Investment Co.

Opinion by Mr. Justice Mitchell, The act of 1836 and its predecessors gaye a lien only for work done and materials furnished “ for and about the erection and construction ” of a building, and this was uniformly understood to mean a new building. See Hancock’s Appeal, 115 Pa. 1. When therefore it was held in Kelly y. Brown, 20 Pa. 446, that the lien need not use the very words of the statute but that any equivalent words would be sufficient, no confusion was created, for there was but one kind of lien and one kind of structure, a new building, to which it could attach. When however the subsequent acts of 1861 and 1868, and the general act of 1887 gave a new lien for work' and materials “ for or about the repair, alteration or addition to any house or other building ” an entirely new class of liens was introduced and the distinction became important. “The liens thus given differ materially in their extent and qualities. Those in the first class relate to the commencement of the building and are without limitation as to amount; those in the second class date from the filing of the claim and are not allowed for debts less than $50.00. .... The liens are again distinguished by preserving those in the first class, if filed within the six months, and denying to debts of the second class any lien if the property is conveyed to a purchaser before a claim is filed: ” Thomas v. Hinkle, 126 Pa. 478. The lien in that case was filed under the local act of 1868 relating to Philadelphia, and was against a “two-story building or wing, being a new structure or building .... attached to and adjoining a three-story stone dwelling” etc. The defense was made by a terre-tenant who had purchased within six months of the time the work was done, but before the lien was filed. It was held that although the building was described as new, and might pos'sibly be so treated under the act of 1836, yet as it was clearly an addition within the terms [175] of the act of 1868, a direction, to the jury to find for the defendant was proper. The same result was reached under the act of 1887 in Groezinger v. Ostheim, 135 Pa. 604. In the foregoing cases the questions arose upon the facts as developed at trial or hearing before an auditor. In Morrison v. Henderson, 126 Pa. 216, however, the case turned on the form of the lien, and it was held that as the claim was filed for erection and construction, while the contract attached and made part of it showed that the work and materials were for an alteration and addition to an old building, the claim was contradictory, and bad on its face, and was properly struck off on motion. It was there said, “ the claim is not filed for alteration and repair, but for erection and construction. The two kinds of claims arise under different acts of assembly, and being purely statutory in their creation, each would be required to conform to the provisions of its own law, even if the difference between them was merely technical. But the difference is substantial in several respects, both as to the requirements of the claim and its consequences, and it is therefore important that it should be maintained.” The present case raises the question for the first time, so far as we are aware, whether the claim must specify on its face the class to which it belongs as being for original construction, or for addition, alteration or repair. As already shown the distinction is substantial, and when it is made to appear that the claim is filed in one class while the facts put it in the other, it has uniformly been held that the lien is incurably defective. Being altogether statutory there is no intendment in its favor, and it should show upon its face all the statutory requisites to its validity. So far as regards the more recently authorized lien for alteration and repair we are clearly of opinion that it must state on its face the class to which it belongs. And our only reason for hesitation in holding the other class to the same rule is the indulgence shown in this respect in Kelly v. Brown, supra. That case however was decided when there was only one class of lien permitted, and the decision did not go beyond the recognition of “ equivalent words ” used in place of the statutory phrase “ erection and construction.” The principle of that case need not be departed from. A claim which shows by apt and sufficient words that it is for work or materials fur [176] nished to a new building will indicate its class although it does not use the statutory phrase, and the indication of its class is the essence of the requirement. But that indication it must give. It is demanded by the general rule governing the statement of actions depending on special statutory privileges, and has become necessary by the fact that there are now two classes-of liens, and the owner of property is entitled to know under which class his property is sought to be burdened. His remedy against defective liens is by demurrer or motion to strike off, and on the hearing of such motion if the lien is not self-sustaining it must be struck off: Fahnestock v. Speer, 92 Pa. 146; Klinefelter v. Baum, 172 Pa. 652. The claim in the present case does not use the statutory phrase to describe either class of lien, nor are there equivalent words by which it can be told with any approach to certainty whether the building to which the boiler was furnished was a new erection or the alteration of an old one. The facts were, it is true, developed at the trial, and if the defendant had pleaded to issue without raising this point he would have been held to have waived it and to be bound by the verdict: Klinefelter v. Baum, supra. But he was entitled to know in advance the character of the claim and to have its validity in this respect, settled, and his right on this point was asserted on motion in due time. The rule to strike off the lien should have been made absolute. But the claim was also defective and should have been struck off for another reason. It is filed by a subcontractor and contains only a lumping charge. It has been settled, certainly since Shields v. Garrett, 5 W. N. C. 120, if not before, that such a claim is incurably bad. See Lee v. Burke, 66 Pa. 336, and McFarland v. Schultz, 168 Pa. 634. The present claim is for a balance due for a “seventy-horse power Wharton-Harrison boiler, with feed-water heater, blow-off tank, and Worthington duplex pumps ” furnished in pursuance of a contract with Murphy, the general contractor. Reference is made in the claim to the contract and the bill of particulars, and on turning to-them we find four distinct items specified in each of them, viz.: the boiler, a “ No. 1 Style A, Cochrane Feed-water Heater,” a cast iron blow-off tank of a specified size, and “two 4j" X 2f-" X 4" Worthington Duplex Pumps,” but no specification of prices,. [177] the whole being included in one sum. It was said in the argument without contradiction, that the boiler was the only part of the whole that was made as well as furnished by the plaintiffs, and that the other parts were bought by them from third parties to complete the outfit. Whether this be so or not it is clear from plaintiffs’ own bill of particulars that the prices could have been itemized at least as to these four parts, and where that is the case it must be done. It was strenuously urged that the testimony showed that though the formal contract was made with the contractor, yet the real agreement was with the owner, through the president, Mr. Ridgway. But even if such a defense could save a defective claim not filed on the alleged contract with the owner, the evidence does not come up to that point. The conversation with Mr. Ridgway as related by the contractor goes only to the extent that the latter selected the Harrison boiler as the kind he wanted and that he knew the price, but there was no reference to the other parts, the feed-water heater, tanks and pumps that went to the making up of the heat-producing plant, and it is the absence of itemization as to price of these that makes the principal defect in the claim as filed. The judgment is reversed, the rule to strike off the claim is reinstated and made absolute.