Lucas v. O'Brien

• Decision Date: 29 January 1894
• Docket Number: 88
• Citation: 28 A. 364,159 Pa. 535
• Parties: Lucas, Appellant, v. O'Brien et al
• Court: Pennsylvania Supreme Court

28 A. 364

159 Pa. 535

Lucas, Appellant, v. O'Brien et al

No. 88

Supreme Court of Pennsylvania

January 29, 1894

Argued January 17, 1894

Appeal, No. 88, Jan. T., 1894, by plaintiff, John Lucas trading as John Lucas & Co., from judgment of C.P. No. 4 Phila. Co., March T., 1891, No. 205, non obstante veredicto, for defendant, Francis O'Brien, owner, and Thomas A. Ash, contractor.

Scire facias sur mechanic's lien.

At the trial it appeared that the contract between the owner and contractor contained the following clause:

"And it is further agreed that the party of the first part will not at any time suffer or permit any lien, attachment or other incumbrance, under any law of this state or otherwise, by any person or persons whatsoever, to be put or remain upon the building or premises into or upon which any work is done or materials are furnished under this contract for such work and materials, or by reason of any other claim or demand against the party of the first part, and that any such lien, attachment or other incumbrance until it is removed shall preclude any and all claim and demand for any payment whatsoever under or by virtue of this contract."

Verdict for plaintiff subject to the question reserved whether under the contract plaintiff was entitled to recover. The court subsequently entered judgment for defendants non obstante veredicto.

Error assigned was entry of judgment as above.

Judgment reversed, and judgment now entered on the verdict in favor of the plaintiff for four hundred and sixty-nine dollars and seventy cents, the amount found by the jury, with interest from date of the verdict.

John J. Wilkinson, John Sparhawk, Jr., and N. Dubois Miller with him, for appellant, cited: Cresswell Iron Works v. O'Brien, 156 Pa. 172.

No argument offered or paper-book filed for appellee.

Before STERRETT, C.J., GREEN, McCOLLUM, MITCHELL and FELL, JJ.

OPINION

MR. CHIEF JUSTICE STERRETT:

This case is ruled, in favor of the plaintiff, by Cresswell Iron Works v. O'Brien, 156 Pa. 172. The contract in this case is substantially if not precisely the same as in that, and is not susceptible of any other construction. For reasons given in that case, the court below erred in entering judgment for defendant non obstante veredicto.

Judgment reversed, and judgment now entered on the verdict in favor of the plaintiff for four hundred and sixty-nine dollars and seventy cents, the amount found...