Best v. Baumgardner, Eberman & Co.

• Decision Date: 01 October 1888
• Docket Number: 418
• Citation: 15 A. 691,122 Pa. 17
• Parties: JOHN BEST v. BAUMGARDNER, EBERMAN & CO
• Court: Pennsylvania Supreme Court

15 A. 691

122 Pa. 17

JOHN BEST v. BAUMGARDNER, EBERMAN & CO

No. 418

Supreme Court of Pennsylvania

October 1, 1888

Argued May 17, 1888

ERROR TO THE COURT OF COMMON PLEAS OF LANCASTER COUNTY.

No. 418 January Term 1888, Sup. Ct.; court below, No. 34 March Term 1888, C.P.

On January 26, 1888, a scire facias was issued upon a mechanics' lien filed by Thomas Baumgardner and others partners as Baumgardner, Eberman & Co. against John Best owner or reputed owner, and Israel P. Mayer, contractor. With the praecipe, an affidavit of claim was filed, in which the sum of $260.25 was alleged to be due from the defendants with interest from July 9, 1887.

The claim was filed on December 8, 1887, for lumber and other materials, mill-work and hauling, furnished at the instance and request of said Israel P. Mayer for and about the erection of an addition to the dwelling-house of the owner or reputed owner, between May 16, 1887, and July 1, 1887, with bill of particulars attached.

On February 7, 1887, John Best filed an affidavit of defence, in which it was averred:

That he, the said John Best, is the owner of the land described in said lien filed and on which the addition to the building therein described was built and constructed; that the materials therein named and in the bill of particulars set forth, were furnished on the order of and to Israel P. Mayer with whom he, the said John Best, had a contract to erect said addition for the sum of $560.

That he paid the said Israel P. Mayer the said sum of $560, and $331.60, additional, for extra work and materials therefor, which was in full for all work and materials for said addition.

That the said plaintiffs, or any or either of them, did not, at the time of furnishing said materials or for a long time thereafter, give notice to the said John Best, the owner of the said property, of their intention to file a lien for said materials furnished, as in said lien set forth, or to his agent or to any one for him; and in fact no notice was given to or demand made from him until after he had paid the said Israel P. Mayer in full for all work done in and about said addition.

On February 28, 1887, judgment was taken against Israel P. Mayer, contractor, for $269.88, for want of appearance, and the same day the plaintiff entered a rule upon John Best, the owner, for judgment for want of sufficient affidavit of defence, and under the practice filed reasons, the material one of which was:

4. Said John Best having admitted in his affidavit of defence that he had a contract with Israel P. Mayer to erect said addition for five hundred and sixty dollars, the plaintiffs cannot be prejudiced by reason that notice was not given to said John Best at the time the materials were furnished, there being no law requiring such notice to be given to said defendant, John Best, when said contract was made for the erection of said addition, and there was no such law in existence until considerable of the material had been furnished.

The rule for judgment having been argued, the court, LIVINGSTON, P.J., on March 28, 1888, filed the opinion and decree following:

* * *

Was it necessary that plaintiffs should have given him such notice, to enable them to file a valid lien in this case?

Mr. Best, in his affidavit of defence, does not deny that the materials specified in the bill of particulars filed with the lien, were furnished on the credit of, and were used in the erection and construction of the addition or building; that the prices were not proper, or that the building was commenced before or at the time of the purchase of and delivery of the material. Indeed, it is admitted that the plaintiffs so furnished the material and that it went into the addition or building.

In support of his position, Mr. Best's counsel cites Evans v. Montgomery, 4 W. & S. 218, to show that "The legislature may pass laws altering, modifying, or even taking away remedies for the recovery of debts, without incurring a violation of the provisions of the constitution, which forbid the passage of ex post facto laws, or laws impairing the obligation of contracts." Also, the act of June 17, 1887, P.L. 413, § 2 of which declares that "All buildings and machinery made liable to a mechanics' lien by the laws of this commonwealth, to a contractor or material-man, for work done or materials furnished for or about the erection, construction or repairs thereof, shall also be liable to a mechanics' lien for any work done on said building and machinery by any sub-contractor, mechanic or laborer. No material-man shall have a right to file a lien, unless notice of the amount and character of such claim be given to the owner or reputed owner, his authorized agent or attorney, when the material is delivered on the premises, or within ten days thereafter: Provided, such sub-contractor, mechanic or laborer shall file his claim within sixty days, setting forth the nature of the work and when the same was done, in the proper county, as other mechanics' liens are filed." ^[*] Also, Roth v. Hobson, 21 W.N. 64, in which a mechanics' lien was filed by plaintiffs as sub-contractors, for tin roofing, water conductors, etc., alleged to have been furnished to a building belonging to defendant Hobson, and for which defendant Hannum was contractor. The items in the bill of particulars bore date between August 20, 1887, and October 21, 1887, and the lien was filed December 10, 1887. There was no averment in the claim that notice had been given as required by the act of June 17, 1887.

This case was clearly covered by the statute; the plaintiffs were sub-contractors, and the work was done and all materials furnished a considerable time after the passage of the act of June 15, 1887, and as the notice required by the act had not been given, the rule to strike off the lien was very properly made absolute. In Pennsylvania, the "mechanics' lien" is of an arbitrary character; it requires no precise formula to be followed before it attaches, but attaches at once, binding the property from a designated event, the commencement of the building, and for a specified time. It is a constructive or secret lien in its commencement, and dates back. The act of June 16, 1836, P.L. 695, directs that it shall have priority over every other incumbrance attaching after the commencement of the building, if filed within six months after the last work shall have been done, or materials furnished.

What is to be understood by the commencement of the building? The common understanding of the phrase is, that it is the first labor done on the ground which is made the foundation of the building, and which forms part of the work suitable and necessary for its construction. Mechanics' liens commence at the date of the first stroke of the ax or spade used in making the house, without regard to the time of their being filed, or the doing of the work or furnishing materials, if filed within the statutory period.

In the case before us, as was stated in the argument, all the material had been contracted for, and all except a few of the last items of the bill delivered at the building, prior to the passage of the act of June 17, 1887, and as the mechanics' lien dates back to the commencement of the building, it had attached under the law, prior to the passage of the act requiring notice to be given to the owner, and notice was not in this case required or necessary, and therefore, the affidavit of defence filed is insufficient, and judgment must be entered for plaintiffs.

We accordingly, now, enter judgment for plaintiffs, for the amount of the claim filed, with interest, to wit, $270.21.

Thereupon the defendant took this writ and assigned as error the entry of judgment in favor of the plaintiffs.

Judgment reversed, and new venire awarded.

Mr. Wm. Aug. Atlee, for the plaintiff in error:

1. By § 1, act of May 1, 1861, P.L. 550, the general mechanics' lien law is extended "to debts contracted for work done or materials furnished for or about the repair,...