McCune v. Hatch

Opinion by Orlady, J., The plaintiff filed a mechanic’s lien for $4,706, equally apportioned against five houses, as the balance due upon a written contract for $9,600. The lien was filed against Cyrus B. Hatch, Bessie F. Hatch, his wife, “ owners or reputed owners, and E. H. Leasure, contractor.” The conditions out of which this con [472] troversy arose were as follows: On May 24, 1897, Cyrus B. Hatch and E. H. Leasure entered into a contract in writing, by which Leasure agreed to erect and finish in a good and substantial manner, and furnish all the materials therefor, a number of frame dwelling houses of such size, character and design as Hatch would direct upon the premises of Hatch in Davorsburg, to the value of $10,000. In consideration of which, Hatch agreed to convey in fee simple to Leasure certain real estate in Allegheny for a consideration of $15,000, subject to a mortgage of $6,000. On July 19,1897, McCune, the plaintiff in this action, entered into a written contract with Leasure to erect, finish and deliver in a true, perfect and workmanlike manner five houses on the premises of Hatch agreeably to plans, drawings, and specifications of an architect for the sum of $9,600. On the trial McCune testified that the contract with Leasure was the only written contract he had in regard to the building of the five houses, and that he received from Leasure, cash, or its equivalent, amounting to $4,998.10, leaving a lump balance as claimed in the lien. On September 14,1897, Hatch made a conveyance of the Allegheny property to Leasure, and soon thereafter Leasure became insolvent. On the face of the written contract Leasure was the named contractor to build the houses, and McCune’s contract with him placed him in the position of a subcontractor. The attack of the plaintiff, in support of his claim for the balance due on the contract with the owners and contractor, went beyond the mere form of the writings, and he contended that Leasure was the mere agent and go-between for Hatch for the purpose of receiving bids for the work and making of the contracts. In support of this, he adduced evidence tending to prove that Leasure had nothing to do with the work on the ground, that Hatch located the houses, staked them out, inspected the material, superintended all the work, made changes in the specifications while the work progressed, and Leasure merely financed the operation for Hatch. On the trial, there was but a single question submitted to the jury as follows: “ It is alleged that Mr. Hatch was the man that was really acting all the time; that Mr. McCune was the real contractor and not Leasure. It is alleged that the acts of Hatch show that from the beginning to the end of it and to the very completion of it. . . . If he was the real contractor, and [473] Mr. Hatch so recognized him and recognized that Leasure, under all the facts was merely his agent, then McCune would be entitled to his money.” The jury found in favor of the plaintiff. The amounts were not disputed and the only question involved was whether Mc-Cune was entitled to file his lien for a lump sum under the contract. While the writings manifest a certain and well defined relation of the parties to each other, the plaintiff established the fact to the satisfaction of the jury that the use of Leasure, as a named contractor, was a mere subterfuge, “ that he was the agent of Hatch, a mere conduit to put it through.” While McCune alleged in his lien that Leasure was the contractor, if it be the fact, and the verdict so established it, that Leasure was in fact Hatch in every particular, the case is fully as strong for the plaintiff as if Leasure were an independent contractor and that Hatch had ratified, approved and confirmed the contract between Leasure and McCune as in Brown v. Kolb, 8 Pa.' Superior Ct. 413. “ He had all the information which he would have had in the first instance, and, under the special circumstances of the case as alleged by the plaintiff, assuming them to be established to the satisfaction of the jury, he was not in a position to deny that the measure of the plaintiff’s right to recover was the stipulated sum less the payments.” If Hatch was in fact the owner, he has no equity to complain that his houses are made liable for the debt which he incurred in building them, and his apparent legal right to have them escape lien in a lump sum by a subcontractor, is negatived by the device resorted to in order to protect them from a lien to which on the true facts they would be subject. Had he made the contract in his own name with the plaintiff for a lump sum the lien would be valid and the jury has found that he did so contract in substituting the name of Leasure for his own: Bohem & Bros. v. Seel, 185 Pa. 382. The judgment is affirmed.