Eller v. Cambridge Springs Co.

Opinion by William W. Porter, J., The written contract, under the terms of which the materials included in this lien were furnished, was rightly held by the court below to be entire. It was intended by the parties to be entire. By their intent the construction of the contract is to be determined: Easton v. Jones, 193 Pa. 147. This disposes of one of the appellant’s contentions. By the terms of the contract certain of the materials, including “ four gable ornaments,” were to be delivered “ at such time as building shall be ready for it.” Almost the whole of the material was delivered in May or June, 1896. Two of the gable ornaments were delivered about September 26, 1896. The lien was filed February 27, 1897. We are asked to say that the delay in furnishing the two gable ornaments was neglect on the part of the plaintiff by which he should not profit in an extension of the time for filing a lien. There is nothing in the evidence furnished to us to warrant such conclusion. The case cannot be brought within the authorities cited by the appellant. The delivery of the gable ornaments was not made “to compensate defective performance” (Harrison v. The Homoeopathic Association, 134 Pa. 558; McKelvey v. Jarvis, 87 Pa. 414), but pursuant to and in compliance with the existing contract. The judgment is affirmed.