Dimmick v. E. H. Cook Co.

• Decision Date: 14 March 1887
• Docket Number: 285
• Parties: Dimmick v. Cook Co
• Court: Pennsylvania Supreme Court

8 A. 627

115 Pa. 573

Dimmick v. Cook Co

No. 285

Supreme Court of Pennsylvania

March 14, 1887

Argued February 24, 1887

ERROR to the Court of Common Pleas of Wayne county: Of January Term 1887, No. 285.

Scire facias sur mechanics' lien, wherein E.H. Cook Co Limited, were plaintiffs, and William H. Dimmick, owner, or reputed owner and contractor, was defendant.

The claim, as filed by the plaintiff, was for materials purchased and placed in the Irving Cliff Hotel, in accordance with entire special job contracts made between said E.H. Cook &amp Co., Limited, and said William H. Dimmick, within six months last past. The amounts of said special job contracts, the subject matter, and dates thereof, being as follows -- viz.:

May 30th, 1885. Steam heating apparatus and engine,

and placing same in the building in accordance

with a special contract,

$1,704

May 30th, 1885. All laundry apparatus, and placing

same in building, in accordance with a special con-

tract,

1,235

May 30th, 1885. Ranges and all cooking apparatus,

and placing same in building, in accordance with a

special contract,

970

June 23d, 1885. Steam pump and pipe by special con-

tract,

492

July 14th, 1885. Stock kettle by contract,

75

Total,

$4,476

All of said special contracts being made and performed, and all of said materials being furnished as aforesaid, within six months last past, for and about the construction and upon the credit of the building hereinafter described.

Said building being a frame building, consisting of a main part and two wings; said main part being three stories high, and 185 feet long by 40 feet deep; the northern wing being partly three and partly four stories in height, and 32 by 38 feet and the southern wing being partly three and partly four stories in height, and 84 by 38 feet. Said building being known as the Irving Cliff Hotel.

By a paper filed it was agreed by the parties that trial by jury be dispensed with, and that the case be submitted to the decision of the court. The issue to be tried to be, as issue of law and of fact, whether the building is subject to the lien as filed, and what payments, if any, have been made; and the court to determine for how much, if anything, said building is subject to said lien, and enter judgment accordingly.

The court, SEELY, P.J., found as matters of fact:

1. In 1884 William H. Dimmick commenced the erection of a building for the purpose of a summer hotel, which was completed in the summer of 1885.

2. On the 30th of May, 1885, while the erection of this building was in progress, Mr. Dimmick contracted with E.H. Cook & Co. the plaintiffs, "to furnish and set complete a first-class, high-pressure, steam heating apparatus," for this hotel. The boilers were to be set in solid masonry, with steam pipes to be placed through the building, connecting the boiler with twenty-three radiators, with all necessary fittings, etc. All horizontal pipes were to be suspended in welded coil chain, or with rings or rods, so as to be secure from expansion. For furnishing and setting this heating apparatus plaintiffs were to receive the sum of $1,704. They did furnish and set this apparatus and the compensation agreed upon therefor constitutes a portion of the claim filed in this case.

3. On the same day, by a separate contract, Mr. Dimmick contracted with the plaintiffs for laundry apparatus -- to wit: One standard Cambridge make washer; one 20 inch centrifugal wringer; one 60 inch steam mangle; one five gallon copper jacket starch kettle; one No. 13 cuff and collar ironer; for the consideration of $970.

This apparatus was placed in the building without being in any way fastened in any location, but set simply loose on the floor. It was at one time connected by belts with some shafting and pulleys, so that it could be operated by steam power. The belting was subsequently, before the winter, removed.

4. On the same day, by another separate contract, Mr. Dimmick contracted with the plaintiff for "One improved French range, 20 feet long, with five fires and five ovens; one 36 inch charcoal broiler and base; three vegetable steamers, with baskets and covers; one 100 gallon boiler with 45 feet of one inch copper pipe, in stand; one 16 foot carving table 25 feet wide, on stand, heated by steam, with square tin meat dishes and covers and vegetable and soup dishes; one galvanized iron plate warmer, 6 feet long, 24 inches wide, on iron stand, with four sheet iron shelves and necessary pipes for heating; one set 10 gallon copper coffee, tea and water urns, double body, with gauge and draw off cocks." All this for the consideration of $1,235.

This apparatus was placed in the building in condition for use, by the plaintiffs; all necessary connections of steam pipes being made by the plaintiffs. The evidence is not clear, but we think we should infer from it that all this apparatus, except the range and charcoal broiler, was so connected. These vegetable steamers, etc., are connected so as to cook by steam, or they could be put on the range, and used as parties saw fit.

5. This heating, laundry and cooking apparatus was not completed by the time agreed upon -- viz.: Heating apparatus by July 15th; laundry and cooking apparatus by July 1st. But it was all completed by the latter part of July or first of August, and before the building was ready for occupancy.

6. Some time after making the agreements above mentioned, Mr. Dimmick contracted with the plaintiffs to put in a steam pump and pipes for the consideration of $492. The date of this contract does not appear. Mr. Hartung, who superintended the work upon the hotel, testifies that "the pump was put in after; it was not part of the original contract; we knew nothing about it until Mr. Dimmick had made the arrangement." Mr. Dimmick testifies, "The contract for putting this pump in was done after all the other contracts were entered into. It was an after consideration entirely." This pump was located at a spring, some 800 to 1200 feet from the hotel, and was to be operated by steam conducted by pipes from the hotel, and its purpose was to force water from the spring to the hotel. Connections were so far made that the pumps were put in operation and forced the water into or near the house. Some part of these connecting pipes were laid under ground, and some were only temporarily laid, it being considered unadvisable to have permanent connections made to remain through the winter, and before winter the pipes were disconnected.

7. Under another separate agreement with Mr. Dimmick, the date of which is not shown, the plaintiffs furnished a stock kettle, or soup kettle, for which they were to receive $75.

All the information we have about this kettle is from Mr. Dimmick, who testifies: "This stock kettle is a soup kettle, located in the kitchen. It is a brass kettle. It sets right in the corner of the kitchen, for the purpose of cooking soup. It is heated either by steam or from the range. I really don't know whether it is heated by the range or from the steam." This statement indicates that this kettle is permanently located in the corner of the kitchen, and it necessarily follows that whether heated from the range or the steam apparatus, it must be connected with one or the other of them by pipes, or by some arrangement conveying heat.

8. Mr. Dimmick paid $176.44 for freight for these plaintiffs, for which he is entitled to credit against their final account.

The contracts for the heating apparatus, laundry apparatus, and cooking apparatus, were made all at the same time.

As to the steam heating apparatus, we have no doubt. It is entitled to the benefit of the mechanics' lien.

The laundry and cooking apparatus is, from its size and manner of construction, practically useless except for a building of large dimensions, constructed for hotel purposes, and we think the circumstances permit no other conclusion than that when Mr. Dimmick contracted for this work he did so with the belief that they were required for the completion of the hotel, and that they would remain permanently with and attached to, as a part of the structure itself.

We do not see why the soup or stock kettle, must not be classed with all the other cooking apparatus.

The pump, located at a spring, some 800 feet from the house, furnished as "an after consideration," under a separate and later contract, does not seem to us under any rule entitled to a lien.

The sum of $176.44, paid by Mr. Dimmick for freight, not having been appropriated to any specific portion of plaintiff's claim by either of the parties, must, we think, now apply to the unsecured portion of the claim -- viz.: The consideration for the pumps, for which no lien is sustained: See Garrett's Appeal, 100 Pa. St., 597.

In accordance with the above...