McClintock v. Criswell

• Decision Date: 05 January 1871
• Citation: 67 Pa. 183
• Court: Pennsylvania Supreme Court
• Parties: McClintock <I>versus</I> Criswell.

67 Pa. 183

McClintock versus Criswell.

Supreme Court of Pennsylvania.

November 21, 1870.

January 5, 1871.

November 21st 1870.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Allegheny county: No. 211, to October and November Term 1870 J. A. Lowrie, for plaintiff in error.—Mechanics' liens depend entirely upon statute, beyond the terms of which they should not be extended: Bolton v. Johns, 5 Barr 149; McCay's Appeal, 1 Wright 128. The building not being the contractor's the plaintiff should have secured himself in the bargain. Here by the lease, if he saw it, he knew the work was to be done at the lessees' cost: Bruner v. Sheik, 9 W. & S. 119.

L. B. Duff, for defendant in error, cited Leiby v. Wilson, 4 Wright 63.

The opinion of the court was delivered, January 5th 1871, by WILLIAMS, J.

This was a scire facias sur mechanic's lien, in which the court below directed judgment to be entered for plaintiff against the defendants for want of a sufficient affidavit of defence. The plaintiff's claim was for work done and materials furnished, at the request of the lessees and occupants of the building, in and for the construction of "a new front, with glass windows and door," which they had covenanted "to put in at their own cost," in consideration of the lessor's extension of the lease for another year. Is the plaintiff's claim a lien on the building as against the lessor and owner of the property? It is, if the work was done with the written consent of the owner, as required by the act under which the claim is filed, otherwise it is no lien. The only consent which the lessor gave is that which is evidenced by his covenant with the lessees binding them to make the improvement at their own cost. Undoubtedly, as between the parties to the covenant, this was a consent on the part of the lessor that the lessees might make the improvement.

But was it such a consent as is required by the act in order to entitle the plaintiff to a lien for the work which he did, and the materials which he furnished, at their instance, in making the improvement? The consent which he gave, if the covenant can be regarded as such, was not absolute but qualified and conditional. By its very terms it amounted to no more than a consent that the lessees might make the improvement at their own cost. Speaking through the covenant the lessor said to the plaintiff: "I consent that the lessees may put a new front in the building...