Caldwell v. Keating

Opinion by W. D. Porter, J., The building operation out of which this litigation arose consisted of certain changes made in an old two-story frame dwelling house. A new roof having a greater pitch than the old was put on ; new weather boarding was nailed on over the old upon the entire building; the old window frames and sash were taken out and new put in the same places; a bay window was built, projecting from one of the rooms on the first floor, and a small china closet projecting three feet from the dining [301] room on the other side of the house; a new front door was put on in place of the old, and a small vestibule was built projecting from it; an old porch was torn away at the front of the house and a larger one built in its place; these were the only changes in the exterior walls of the house, and the foundation lines remained unchanged. In the interior, some earth was excavated within the lines of the foundation walls and the cellar thus enlarged; the attic under the new steep roof was divided into two rooms and a bathroom; the position of one partition on the first floor was changed so as to transform a narrow hall into a reception hall, the space being taken from one of the rooms; and a new staircase was built in the reception hall; hard wood floors were laid down over the old floors in all of the rooms of the first story, except the kitchen; and one chimney was torn down and rebuilt The plaintiffs furnished material used in the making of these changes, and filed this lien against the building as a new structure, having made no attempt to acquire a lien for materials furnished for repairs or alterations, under the act of 1887. There was no dispute as to the character or extent of the alterations in the old building, and the only question contested in the court below was whether the building operation was the alteration of an old building, or resulted in the construction of a new one. The learned judge of the court below was of opinion that it was a case of alteration and repair, and entered a judgment of compulsory nonsuit which he subsequently refused to take off. . The facts were undisputed and the question was one of law to be determined by the court. Expert testimony is admissible in such a case to establish whether any part of the work or material is old or new, but where there is no dispute as to what is old or new, the question being one of law, the opinion of contractors are not competent to be considered in determining the question of the character of the operation as a whole. The court gave to the plaintiff the widest latitude in the introduction of evidence as to the changes which had been wrought in the old building; and the opinions of the witnesses as to whether the completed building was an old one altered or a new structure were properly rejected. The first, second and third specifications of error are overruled. "We are convinced that there was no error in the conclusion [302] of the learned judge of the court below that this building operation was a case of alteration and repair and not of a new construction. It is true that the whole external surface of the completed building was new. The change in the external appearance of a building resulting from such an operation has been recognized by the cases as an important element in determining newness of structure, but it is the change which indicates and results from newness of structure in the main mass of the building. The question is not to be determined from mere surface indications. A veneer of paint, or-cement or sheet iron may entirely cover an old building, but it cannot make .it a new structure. We must consider not only the changed appearance but the cause of it. Back of the new weather boarding, which had been nailed over the old, on this house was the old structure complete and almost unchanged, except where the bay window and the china closet projected. The shifting of one partition so as to enlarge the hall, and the laying of hard wood floors over the old floors in some of the rooms of the first floor, and the division of the attic into two rooms were trifling changes of internal arrangement. Large sums of money may be expended in hard wood floors, and artistic frescoes upon walls and ceilings, but it is not the amount of money expended in such things which is to determine whether a building is old or new. The design of the character of this building remained unchanged, and the main mass of the structure was old: Miller v. Hershey, 59 Pa. 64; Long v. McLanahan, 103 Pa. 537; Smyers v. Beam, 158 Pa. 57; Warren v. Freeman, 187 Pa. 455; Thompson’s Appeal, 3 Pa. Superior Ct. 643; Goeringer v. Schappert, 17 Pa. Superior Ct. 293. The judgment is affirmed.