Hervey v. Gay

The opinion of the court was delivered by Parker, J. An action was brought in the Circuit Court [175] •of the county of Essex by Thomas Gay & Son against James B, Hervey, builder, and Harlan Smith, owner, to enforce a lien claim. Hervey and one Kercheski were tenants of the premises, and Smith was their landlord. The repairs to the building were made by Gay & Son, during the continuance of “the lease, upon request of and agreement with the tenants. At the Circuit, a formal verdict for the plaintiffs in that ■court was directed, subject to the advisory opinion of the Supreme Court, upon the following questions, to wit: First. Whether the clause in the lease made by Smith, the •owner, to Hervey and Kercheski, his tenants, which reads as follows, viz.: “ And it is further agreed that the said parties •of the second part shall take good care of the hereby demised premises, and shall, at their own costs and expense, make and ■do all repairs of every description that may be necessary for the benefit and preservation of said premises during the continuance of this lease, and not call upon the party of the first part for any disbursements or outlay during the hereby granted term, and that all the improvements made to the buildings or premises by the parties of the second part shall ■belong to the party of the first part at the expiration of this lease,” is within the meaning of the eighth section of the ■mechanics’ lien law approved March 27th, 1874. Secondly. Whether the following paper, signed by the •owner and offered in evidence by the plaintiffs, to wit: “ Permission is hereby given to James Hervey and X. Kercheski to make alterations to buildings marked Nos. 2, 3, 4, 6, 7 and 8 on above plan, by cleaning out furnaces, &c., in said buildings, leveling floors of Nos. 2 and 3, taking partition from No. 9, and adding another story to same, if they desire to do so, it being understood that all materials taken from said buildings and not used in reconstruction are to belong to me .and subject to my disposal, all at their cost and expense,” is within the meaning of the same section. The Supreme Court advised judgment for plaintiffs in the ■Circuit Court, thereby deciding that the said clause in the .lease and the said paper constitute such consent of the owner, [176] in the meaning of the eighth section of the lien law, as will render the land and buildings liable for the repairs. The case is brought to this court by writ of error.' It will be observed that both the lease and the subsequent paper contain the qualification that the repairs shall be at the cost and expense of the tenants. The written consent which, under the lien law, will bind the land of the owner for repairs contracted for by the tenant, must be absolute in its terms. If the writing giving permission to the tenant to repair contain a clause that the same shall be done without any expense to the owner, but at the cost of the tenant, it is not the consent contemplated by the' eighth section of the mechanics’ lien law. Such qualification is inconsistent with consent to encumber the land of the owner for another’s indebtedness. The plaintiffs in this suit invoke the lease and subsequent writing to make the land liable. They cannot claim rights under part of those instruments and reject the remainder. The clauses which provide that repairs shall be at the cost and expense of the tenant must be construed in connection with the other provisions of the writings. Where the paper relied upon as a consent of the owner to the making of repairs by another person, contains a proviso that the repairs shall not be at the expense of the owner, it is not consent within the meaning of the eighth section of the mechanics’ lien law. These views are sustained by the case of McClintock v. Cresswell, 67 Penna. St. 183. The lien law of the State of Pennsylvania, so far as it has reference to the subject under consideration, is the same in substance and almost identical in phraseology with the eighth section of our act. In McClintock v. Cresswell, the lease contained the following clause, viz.: “ It is agreed, also, * * * that the party of the second part is to have a new front, with glass windows and doors put in, at their own cost.” The following is an extract from the opinion in that case, viz.: “The consent intended by the act under which the claim in this case [177] was filed, is an absolute consent—such a consent as is consistent with the right to do the work on the credit of the building, although it may not expressly authorize it. It must not be clogged with any such condition or qualification as is inconsistent with the right to charge the building with the cost of the work, or which impliedly forbids it. For these reasons, we are of opinion that the consent evidenced by the covenant in this lease, is not such as the law requires.” Such construction of the statute, while it protects the landowner from liability for the debt of another, does not work hardship to the mechanic and materialman. Before giving credit, inquiry can be made if the owner of the premises had given such written consent to repair as the law contemplates, and if not, the work need not be done nor the materials furnished, unless willing to trust the tenant for payment. The judgment should be reversed. For affirmance—None. For reversal—The Chancellor, Dixon, Knapp, Mague, Parker, Scueder, Clement, Dodd, Green—9.