Langenheim v. Anschutz-Bradberry Co.

• Decision Date: 16 July 1896
• Docket Number: 72-1896
• Citation: 2 Pa.Super. 285
• Parties: August Langenheim and Charles W. Cochran, trading as Langenheim & Cochran, Appellants, v. The Anschutz-Bradberry Co., Owner, and H. S. McAllister, Contractor
• Court: Pennsylvania Superior Court

2 Pa.Super. 285

August Langenheim and Charles W. Cochran, trading as Langenheim & Cochran, Appellants, v. The Anschutz-Bradberry Co., Owner, and H. S. McAllister, Contractor

No. 72-1896

Superior Court of Pennsylvania

July 16, 1896

Argued April 8, 1896 [SYLLABUS MATTER] [SYLLABUS MATTER]

Appeal by Langenheim & Cochran, plaintiffs, from judgment of C. P No. 2, Allegheny Co., No. 126-1894, in sci. fa. sur mechanic's lien against the Anschutz-Bradberry Co., owner, and H. S. McAllister, contractor, defendants, ordering nonsuit.

Sci. fa. for materials amounting to $ 848.95 furnished in the construction of an addition to an iron foundry. Before Magee, J.

The facts as stated in the opinion of this court were as follows:

This is an appeal by Langenheim & Cochran from the refusal of the court of common pleas of Allegheny county to take off a compulsory nonsuit.

The appellants filed a mechanic's lien against the Anschutz-Bradberry Company, a corporation, as owner or reputed owner, and H. S. McAllister as " the contractor at whose instance and request the work was done and materials furnished," claiming $ 848.95 for lumber and mill work furnished for the erection of an addition to an iron foundry in the city of Allegheny. It is stated in the claim that notice of the appellant's intention to file a lien was given at the time of furnishing the material to R. G. Vandevort, agent and architect of the owner. On the trial of the scire facias, C. W. Cochran, one of the plaintiffs, testified, with reference to the notice to Vandevort and his agency, as follows:

Q. Did you have any communication of any sort directly or indirectly with the Anschutz-Bradberry Company about furnishing of materials, etc.?

A. We had no communications with the Anschutz-Bradberry Company during the construction of the building.

Q. Directly or indirectly?

A. No, neither way that I . . . .

Q. In regard to this building who did you get your orders from?

A. From the architect, Mr. Vandevort.

Q. Did he come to your place?

A. Yes, sir.

Q. How often?

A. Well he was there a number of times.

Q. Do you know whether he did or did not make any changes in the building?

A. Yes, sir, Mr. Vandevort ordered changes in the work.

Q. Did you carry them out?

A. Yes, sir.

Q. Do you know whether Mr. Vandevort made out estimates for the payment of money?

A. Well, I was told he made one estimate; he told me himself.

Q. When was it he told you that?

A. I don't know exactly the date; from the 24th to 28th of March, 1893.

Q. What did you tell him on that occasion about payment of money?

A. I asked Mr. Vandevort how he made his estimate, whether he made it all to the general contractor, or the subcontractors, pro rata shares, and he said he had made it all to the contractor, McAllister, and I told him if we didn't get our money at that time we would look to the building for the payment of our bill.

Q. You said that changes were made in the building by Mr. Vandevort; was extra material ordered by him?

A. There was an extra window frame and sash and the roof joists were changed; the original was 2 x 8 and then he changed them to 2 x 10 . . . . the sides. [Asked how much of the material had been furnished when he gave the notice to Mr. Vandevort, he answered], Well as near as I can tell about half of the material had been furnished when that notice was given, about half the whole amount of the material; perhaps a little fraction more.

Q. Did you have a lump contract for furnishing this material and doing this work?

A. Yes, sir.

Q. You did?

A. Yes, sir; that is for the original contract and when. . . .

Q. And the only work, as I understand, you didn't have any lump contract for, was the extra work shown by footed bill; is that correct?

A. Yes, sir, that is correct.

R. G. Vandevort was called on behalf of the plaintiffs and testified as follows:

Q. State whether or not you were employed to supervise the erection of this addition to the Anschutz-Bradberry Building. A. Yes, sir; I was employed for that purpose.

Q. Did you actually supervise the work of the building?

A. Yes, sir.

Q. By whom were you employed?

A. By the Anschutz-Bradberry Company.

Q. State whether or not it was part of your duty to make out estimates for payment?

A. Yes, sir; I made out estimates, or one estimate, for payment.

Q. Was payment made according to it by Anschutz-Bradberry Company?

A. I believe so; I never heard anything to the contrary.

The foregoing is all the testimony in the case concerning the authority and actions of Vandevort and the notice to him. It was not alleged that Vandevort communicated the statement of Cochran to any of the directors, officers or agents of the defendant company, or that any other notice was given. The plaintiffs were subcontractors under McAllister and they had no communication with the defendant company. There is no testimony that Vandevort made or was authorized to make any contract for the defendant; he was employed to supervise the erection of the addition, which included the duty of making estimates for payments to the contractor from time to time, during the progress of the construction, based on the relative value of the work and material in the building; nor is it asserted that he claimed to have any further authority. He neither received nor paid out money for the construction of the building and had nothing to do with the financial affairs of the company. The architect did nothing to lead the plaintiffs to believe he had authority to receive notices for the defendant, or that he would transmit to its officers any notice he might receive; and no inquiry was made by the plaintiffs as to his right or duty in the premises. The principal contractor was to provide the work and materials for the addition, and the plaintiffs made their agreement with him for what they were to furnish toward the erection, and its price, and he was to pay them. They evidently understood that the owner retained no authority over the subject-matter of their contract, and acted accordingly in making it.

Error assigned was refusal to take off nonsuit.

Chas. W. Dahlinger, with him John D. Shafer, for appellants. -- Notice need not be given until the last delivery of material: Lucas v. Ruff, 45 Leg. Int. 154; Swaney v. Washington Oil Co., 7 C. C. 351; Malone v. Mining Co., 76 Cal. 578; Neeley v. Searight, 113 Ind. 316. A notice is sufficient which puts the owner on his guard or warns him that the initiatory step to the acquisition of a lien is being taken: Robbins v. Blevins, 109 Mass. 219; Phillips on Mechanics' Liens, sec. 338; Neeley v. Searight et al., 113 Ind. 316. Notice to a corporation may be through its agent: Board of Education v. Greenbaum, 39 Ill. 609. As to architect being such an agent as may be notified and bind owner: Lloyd's Law of Building and Buildings, secs. 11, 12 (2d ed.); Johnson's Mechanics' Liens, 173; Brown v. Cowan, 110 Pa. 588; Bank of Pennsylvania v. Gries, 35 Pa. 426; Duncan v. Hartman, 143 Pa. 596; Short v. Messenger, 126 Pa. 637; Kimberley v. Dick, L. R. 13 Eq. 1; Erskine v. Johnson, 23 Neb. 261; Goss v. Helbing, 77 Cal. 190; Jardin v. Pumphrey, 36 Md. 364; Cannon v. Helfrick, 99 Ind. 164.

The case was for the jury: Winters v. Mowrer, 1 Pa.Super. 47; Bank v. Field, 143 Pa. 473; Hill v. Trust Co., 108 Pa. 1; McGrann v. R. R. Co., 111 Pa. 171.

J. S. Ferguson, with him E. F. Ferguson, for appellees. -- Notice of an intention to file a lien must be given, even when the materials are furnished directly upon the owner's order: Groetzinger v. Ostheim, 135 Pa. 604.

" When" in the act of assembly is the equivalent of " at the time of:" Strawich v. Munhall, 139 Pa. 163; Moss v. Greenburg, 34 W.N. 83.

Before Rice, P. J., Willard, Beaver, Reeder, Wickham, Orlady and Smith, JJ.

OPINION

SMITH, J.

Under these circumstances were the plaintiffs entitled to maintain a lien upon the building?

Two questions were involved in the inquiry: Was Vandevort an agent of the defendant within the purview of the act of May 18, 1887; and was the statement of Cochran to him a sufficient notice of an intention to file a lien, under the requirements of that statute. The part of the act material here is as follows: " That to entitle any one to the benefits of this act, he shall give notice to the owner or reputed owner of the property, or his or her agent, at the time of furnishing the materials, or performing work in and about the repairs, alterations or additions to any house or other building, of his intention to file a lien under the provisions of this act."

It is earnestly and ably argued by counsel for appellants that the relation of principal and agent is formed between an owner and an architect, by the employment of the latter to superintend the construction of a building, and that the facts of this case are at least adequate to require the question of the sufficiency of the notice to be submitted to a jury. It is no doubt true that in the purchase of material and the employment of mechanics, a supervising architect is to be regarded as the agent of the owner so as to subject the property benefited to a lien, or even to create a personal liability, where the architect is acting for the owner, or the latter ratifies his acts by accepting the material and services thus procured. Labor and material are necessary to carry out the work of construction which the architect is employed to supervise and direct; and their procurement may be considered within the apparent scope of his authority, so far as third persons are concerned. To this extent does the law recognize and enforce such contracts: Duff v Hoffman, 63 Pa. 191; Brown v. Cowan & Steele, 110 Pa. 588, 1 A. 520. The act of June 16, 1836, section 12,...