Tebay v. Kirkpatrick & Co.

Opinion, Mr. Justice Stekkett : This scire facias sur mechanics’ lien is based upon a claim filed by the plaintiffs against Kirkpatrick & Co., Limited, owners or reputed owners, and J. T. Watt, contractor. Appended to the claim is an itemized account against the contractor for hardware, tin-work, etc., verified by an affidavit averring that the bill of items is correctly copied from the plaintiffs’ books of original entry; that the work was done and materials furnished at or about the dates of the respective charges, within six months last past, and upon the credit of the building described in the lien; and that there is justly due and owing to plaintiffs the sum of $439.52, on account of which defendants are not entitled to any credit whatever. In their affidavit of defence appellants say they have a full and complete defence, for the nature and character of which they refer to their agreement with the contractor, a copy of which is appended to and made part thereof. That agreement provides, among other things, that the contractor shall “ not sub-let the works, or any part thereof, without consent in writing of the proprietor ” or owners; and also that said owners shall “not in any manner be answerable or accountable for.....any of the materials or other things used and employed in finishing and completing said works.” This latter-provision is substantially the same as the stipulation contained in the contract that was under consideration in Dersheimer v. Maloney, 143 Pa. 532. In that case, it was held that the subcontractor could neither recover against the owner, nor enforce a lien against the building. The obvious purpose of provisions such as those above quoted, is to protect the owner from liability, either personally or in rem, for materials furnished by sub-contractors. As was said in Harlan v. Rand, 27 Pa. 514, claims of workmen and materialmen do not become liens on a building from the mere fact that the work was done or the materials furnished for its [124] erection; they must be founded on a contract, express or implied, with the owner of the estate sought to be charged. The lien law of 1886 provides only for “ debts contracted ” for work and materials: §1, act of June 16, 1836, P. L. 696. When the owner employs a house-builder to erect a house for him, the parties are directly connected by contract, and the lien must be founded thereon. “ It is the plain and obvious duty of one who deals with an alleged contractor to know the relation which he bears to the owner; failing in this, he furnishes labor and materials at his peril: ” Brown v. Cowan, 110 Pa. 593. Hence, it was said in Schroeder v. Galland, 134 Pa. 284: “ The only connection between the owner and the sub-contractor, was through and by means of the written contract between the owner and the principal contractor. He could not, in such circumstances, contract with this person, without being charged with notice of the contract of the latter with the owner, and, by necessary consequence, with notice of all its terms and stipulations.” It follows from what has been said, that the plaintiffs knew or ought to have known the terms of the contract referred to in the affidavit of defence; and hence, in determining their right to judgment, it must be assumed they did know. In their dealings with the contractor, however, the plaintiffs disregarded the provisions of the contract that were intended for the protection of the defendants, and thus ignored their rights in the premises. In these circumstances they should not be permitted to enforce their claim against them or their property. We therefore think the learned judge erred in holding that the affidavit of defence was insufficient. Judgment reversed, and procedendo awarded.