Goeringer v. Schappert

Opinion by W. D. Porter, J., There was, under the evidence, but one question in dispute at the trial of this case in the court below. Was the building operation out of which this litigation arose, the construction of a new building; or an addition to arid repair and alteration of an old one ? The facts as to the extent of the addition, and the nature of the. alteration and repair of the old structure were not disputed. The old dwelling house had consisted of a two-story frame building, twenty by thirty-six feet in size, having a small kitchen at the rear and a porch in front. The small one-story kitchen was torn down and there was erected on its site a two-story frame addition, eighteen by twenty-three feet in size, having upon the ground floor a kitchen and pantry and on the second floor a bed room and bath room, connected with the main building and designed to be used as a part of the dwelling. The porch in front was removed and a larger one constructed in its place. In the main building these changes were made: the rafters were spliced and the crest of the roof raised so as to give it a greater pitch, and dormer-windows were [295] put in, for the purpose of ornament; a bay window constructed on each side of the house, one two stories high and the other upon the second floor only; the old window frames and sash were removed, and replaced with new frames, sash and glass; the old front door was taken off and a new one put in its place; and the weather boarding of the gable of the house, where the pitch of the roof had been increased was removed down to the eaves and shingles put in its place. The whole exterior of the building was then painted by the plaintiff, the new work being given two coats and the old part of the building one, and this lien was filed for that work, against the whole building as a new construction. The plaintiff did not attempt to bring his claim within the operation of the act of 1887, by giving .notice and filing the lien for an addition to or alteration of an old building. The facts being undisputed the question at issue became one for the court to determine. Unless the alterations were of such a nature as to give to the building, as a whole, the character of newness in the main mass of the structure, the lien could not be sustained. The main design of the building remained unchanged, and the lines of its foundation walls were in no respect altered. The interior of the building, except for the bay windows, was left untouched. Undue importance seems to have been attached to the fact that because the building was painted the external appearance was changed. The external appearance of the building, as affected by alterations therein, has been recognized by the cases as an important element in determining newness of' structure, but its external appearance resulting from changes of construction, and not the mere change of color from the application of paint. A building may be covered with plaster or paint an inch thick, and may present a very new and bright appearance to the eye, but whether it is a new building is to be determined by the character of the'main mass of the structure that lies back of the pigment. In this case it is undisputed that after the work for which the lien was filed was completed, -the paint did not conceal the fact that the part of the building which had received only one coat was old, and the owner made an independent contract with this plaintiff to give the old weather boarding an additional coat of paint. The changes in the main mass of this building were trifling; apart from the change in the roof. they [296] consisted almost entirely of mere superficial ornamentation. When the facts with regard to a building operation are undisputed the court in determining the question as to the character of the structure, is not to be governed exclusively by what a person, who saw the building for the first time after it was completed, being ignorant of the existence of the old building, might from a mere external inspection conclude. The court haying all the facts presented knows that there was an old building there, and the nature of the changes which the work has wrought. This case is ruled by Thompson’s Appeal, 3 Pa. Superior Ct. 643; Smyers v. Beam, 158 Pa. 57. The defendant was entitled to an unqualified affirmance of his first and third prayers for instruction, and the first and third assignments of error are sustained. The judgment is reversed.