Curti v. Hartrick
| Decision Date | 29 November 1915 |
| Docket Number | 67-1915 |
| Citation | 61 Pa.Super. 447 |
| Parties | Curti v. Hartrick, Appellant |
| Court | Pennsylvania Superior Court |
Argued April 29, 1915 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]
Appeal by plaintiff, from judgment of C.P. Allegheny Co.-1913, No. 2378, on verdict for plaintiff in case of Peter Curti v. J. Albert Hartrick and Lillian Brant Hartrick, his wife, Owners or reputed owners, and Thomas O. Reese and Charles McCune Reese, partners, as T. O. Reese & Brother, Contractors.
Scire facias sur mechanic's lien. Before Carnahan, J.
The lien was as follows:
Peter Curti, plaintiff above named, hereby files his claim or statement of demand for the price and value of materials furnished and for work and labor done for and about the erection and construction of a certain building hereafter described, against the building and ground thereby covered, and so much other ground immediately adjacent thereto and belonging to the owner or reputed owner thereof, as may be necessary for the ordinary and usual purpose of such building, and set forth in his claim as follows:
First. The name of the claimant is Peter Curti.
Second. The name of the owners or reputed owners of the building and property is J. Albert Hartrick and Lillian Brant Hartrick, his wife.
Third. The names of the parties with whom the claimant contracted are T. O. Reese and Charles McCune Reese, partners doing business as T. O. Reese & Bro.
Fourth. The amount or sum claimed to be due is five hundred and eighty-three ($ 583.00) dollars, with interest from the fourth day of May, 1912, for work done and materials furnished within six months last past for and about the erection and construction and upon the credit of the building hereinafter described. A detailed statement of the kind and character of the work and labor done and the kind and amount of material furnished and of the dates when said work and labor was done and materials were furnished and the prices charged therefor being fully set forth in bill of particulars hereto annexed and made part hereof.
Fifth. The lien is claimed against the following described property and the structure thereon:
All that certain lot or piece of ground situate in Ross Township, Allegheny County, Pennsylvania, bounded and described as follows: Beginning at a point at the intersection of the center line of Perrysville avenue with the center line of Schwitter avenue; . . . . Containing seven and thirty-eight hundredths (7.38) acres, exclusive of the area in the street. Said building being a two-story brick and shingle dwelling house, for the erection and construction of the foundations of which said materials were furnished and labor done and performed. That there are also erected on said property a frame barn and a two-story frame and tile cottage.
That the said material and labor was furnished on the faith and credit of said building, under a written bid to do the same furnished to and accepted verbally on the 10th day of November, 1911, by T. O. Reese & Bro., the general contractor with said owners for the erection thereof.
That the items claimed as extras in the annexed statement were furnished and done by claimant by and with the consent and approval of the architect and owners of said building.
The date when the last material and labor was furnished and done was May 4th, 1912.
Claimant is a subcontractor and written notice of his intention to file a lien was served personally upon Edward B. Lee, architect for said building, at his office, Peoples Bank Building, Pittsburgh, __ Pa. __, on the 24th day of July, 1912, and also by posting a copy of said notice upon the premises on the 25th day of July, 1912, the said owners at that time being out of and absent from the State.
Witness the hand of said claimant this 16th day of October, 1912. Peter Curti.
EXHIBIT " A."
West View, __ Pa. __, May 4, 1912.
T. O. Reese & Bro.,
To Peter Curti, Dr.
To material furnished and work and labor done between the dates November 10, 1911, and May 4, 1912, in and about the erection of the foundation, etc., of a brick and shingle dwelling house for which said T. O. Reese & Bro. were the general contractors and J. Albert Hartrick and Lillian Brant Hartrick are the owners under a written bid furnished to and verbally accepted by said T. O. Reese & Bro., as follows:
$ 583.00
The notice of intention to file the lien against the dwelling house contained also notice of an intention to file liens against the tenant house and the barn.
At the trial the defendants moved for a nonsuit for the following reasons:
The notice of intention to file a lien in this case is irregular, defective, insufficient and void, and not in accordance with the act of assembly, only one notice being given for the aggregate amount claimed for the work and materials furnished on the three separate buildings or structures, and the three separate liens thereafter filed in pursuance thereof, said notice stating that the subcontractor intended to file " a mechanic's lien" against certain " buildings, improvements and curtilage" for work done on a " two-story brick and shingle dwelling house or bungalow, frame and tile cottage, and frame barn."
The mechanic's lien in the same regard is defective.
The notice of intention, the lien, and the scire facias contain a lumping charge as respects the items of labor and materials, and also a lumping charge as respects the dates of the same.
The notice of intention and also the lien fail to show the amount of work or materials, if any, that were furnished within three months immediately preceding the giving of the notice of intention to file a lien, whether a substantial amount or merely a nominal amount to extend the time of filing said lien, nor whether the same was for work done under the contract or for work of repairing or replacing the same, there being merely the general averment at the end of said lien that all the materials were furnished " Between the dates November 20, 1911, and May 4, 1912," a period of six months, without showing what items were furnished within three months immediately preceding the giving of said notice.
There is no allegation in the lien, of the defendants' " residence out of the county," to entitle the plaintiff to a substituted service upon the architect, or to the constructive service by posting the premises, the alleged service of the notice of intention being thus irregular, defective and void.
Verdict and judgment for plaintiff for $ 655.29. Defendant appealed.
Errors assigned were various rulings and instructions.
Judgment modified and affirmed.
Herman L. Grote, with him Frederick C. Grote, for appellant. -- Three structures were wrongfully combined in one lien: Schively v. Radell, 227 Pa. 434; Todd v. Gernert, 223 Pa. 103; Hiestand v. Keath, 229 Pa. 149; Nagle v. Henninger, 4 Lehigh 197.
Each lien is in reality a joint lien, no longer permitted, and embraces the entire block, constituting the curtilages of all the structures, described in each lien as the same tract of land: Girard Point Storage Co. v. Southward Foundry Co., 15 W.N.C. 25; Hiestand v. Keath, 229 Pa. 149.
The prices were not itemized: Chapman v. Faith, 18 Pa.Super. 578; Shields v. Garrett, 5 W.N.C. 120; Burrows v. Carson, 53 Pa.Super. 488; McFarland v. Schultz, 168 Pa. 634; Russell v. Bell, 44 Pa. 47; Lee v. Burke, 66 Pa. 336; Fahnestock v. Speer, 92 Pa. 146.
Time when furnished is not set forth: McFarland v. Schultz, 168 Pa. 634; Breitweisser Lumber Co. v. Wyss-Thalman, 51 Pa.Super. 83; Crane Co. v. Rogers, 23 D.R. 583; Burrows v. Carson, 53 Pa.Super. 488.
No proper items were stated within the three months: Lee v. Burke, 66 Pa. 336; Shields v. Garrett, 5 W.N.C. 120; Kohler v. Mountney, 5 W.N.C. 260; Wilson v. Forder, 30 Pa. 129; Phillips v. Duncan, 5 Clark 358; Wolf Co. v. Penna. R. R. Co., 29 Pa.Super. 439; Day v. Penna. R. R. Co., 224 Pa. 193; Busse v. Canter, 51 Pa.Super. 514.
A. C. Johnston, with him C. M. Johnston, for appellee. -- The lien and notice were sufficient: Day v. Penna. R. R. Co., 35 Pa.Super. 586; Smith v. Sarver, 4 Sadler 298; Donahoo v. Scott, 12 Pa. 45; Calhoun v. Mahon, 14 Pa. 56; McClintock v. Rush, 63 Pa. 203; Langenheim v. Anschutz-Bradbury Co., 2 Pa.Super. 285; Winton v. Benore, 28 Pa.Super. 27; American Car & Foundry Co. v. Alexandria Water Co., 215 Pa. 520; Este v. Penna. R. R. Co. 27 Pa.Super. 521; Bayer v. Reeside, 14 Pa. 167; Lee v. Exeter Club, 9 Pa.Super. 581; Thirsk v. Evans, 211 Pa. 239; Willson v. Canevin, 226 Pa. 362.
Before Rice, P. J., Orlady, Head, Henderson, Kephart and Trexler, JJ.
The plaintiff filed a lien against the defendants for a claim arising out of a contract between him and the contractors for the owner, for the stone, cement, tile and other work necessary in the construction of the foundation of a dwelling house erected by the owners on their land. The claim sets forth the following items:
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Ott v. Duplan Silk Corp.
... ... 439; Willson v. Canevin, 226 Pa. 362; McFarland ... v. Schultz, 168 Pa. 634; Burrows v. Carson, 244 ... Pa. 6; Brant v. Hartrick, 60 Pa.Super. 507; ... McCrum-Howell Co. v. Empfield, 50 Pa.Super. 551; ... Breitwieser v. Wyss-Thalman, 51 Pa.Super. 83; ... Benton v. Berg, 63 ... Willson v. Canevin, 226 Pa. 362, is applicable here, ... and a like conclusion should be reached. See, also, Curti ... v. Hartrick, 61 Pa.Super. 447; Bennett Lumber & Mfg ... Co. v. Hartrick, 61 Pa.Super. 456 ... This ... case is to be distinguished ... ...
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