Rush v. Able

• Decision Date: 05 May 1879
• Citation: 90 Pa. 153
• Parties: Rush <I>versus</I> Able.
• Court: Pennsylvania Supreme Court

Page 153

90 Pa. 153

Rush versus Able.

Supreme Court of Pennsylvania.

April 4, 1879.

May 5, 1879.

April 4th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.

Error to the Court of Common Pleas of Northampton county: Of January Term 1879, No. 240.

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Reeder & Reeder, for plaintiffs in error.—The claim of lien filed shows that it is comprised of two parts; the first being for a specific sum, the amount being fixed by a special contract and amounting to $53,644.77, and the other a bill for extra work and materials amounting to $11,562.05. The order of the court below affects only the bill for extra work and materials. The first item in this bill bears date February 19th 1873. No other item is dated. Attached to the bill and immediately following the last item thereof, appears this sentence: "The work was commenced on or about the 14th day of June 1872, and finished on the 28th day of June 1873, on which day the last work was done, in which time also said materials were furnished." This is such a statement of time as sufficiently complies with the requirements of the Act of the 13th of June 1836: Driesbach v. Keller, 2 Barr 77; Hillary v. Pollock, 1 Harris 186; McCay's Appeal, 1 Wright 125; Bayer v. Reeside, 2 Harris 167; McClintock v. Rush, 13 P. F. Smith 204.

There are charges for work done and materials furnished which often enter into a bill of particulars, for which it is impossible to give a specific and exact date. Take, for instance, the item "architects' charges and fees, $3617.65" (which item is the most important one involved in this case). Work of this character begins cotemporaneously with the commencement of the building — indeed, often precedes any work whatever upon the building — and continues until the last nail is driven or the last brushful of paint applied. The architect's services in superintending the structure are often unnecessary for continuous weeks, and then again are necessary every day. His charges are never regulated by the time which he is required to be present during the erection of the building, but upon the actual cost of the structure. This is the custom of architects everywhere. How, then, can such charges be given a date in a bill of particulars, or how can such services be described other than as "architect's charges and fees?"

Incident to nearly every contract for the erection of buildings for a specific sum is a bill for extra work and materials. This bill is one springing out of the original contract by reason of changes in, and alterations of, the special contract, made as the work progresses, at the suggestion of the owner of the building himself. By reason of the peculiar position of the contractor as owner of all the materials purchased for the work under the special contract, and both the material used in the extra work and under the special contract being taken from the common store, it is in most instances almost impossible, in some cases utterly so, for the contractor to ascertain the exact amount of material used or labor performed in the erection of the extra work until after the completion of the structure.

Where a builder is erecting a building not under contract, it is easy enough to file a lien; he files his liens as he keeps his account for the work in detail as it is performed. But where the contract and the alterations or extra work are so connected that they are parallel to a certain extent, the same work being part under special contract and part in consequence of the alteration, how can he file his lien with the exactness required by the Act of 1836?

For these reasons we contend that the law should regard the bill for extra work as a contract springing from the special contract and running parallel with it, and should not require for such bill the same exactness they would require in a claim where there was no contract.

W. S. Kirkpatrick and Robert I. Jones, for defendant in error. —The bank petitioned to strike off this defective lien; this was the proper course. Judgment-creditors are parties interested, and greater exactness and conformity is required against subsequent purchasers or encumbrancers than against defendants in mechanics' liens: Lehman v. Thomas, 5 W. & S. 263; Howell v. Philadelphia, 2 Wright 471; Hahn's Appeal, 3 Id. 409; McClintock v. Rush, 13 P. F. Smith 203; Lee v. Burke, 16 Id. 336.

On its face the claim declares expressly that the bill for extra work and materials, $11,562.05, was incurred more than six months before filing, and it is therefore void. The claim is dated Dec. 26th 1873, but the lien was not filed until the 27th, and the averment "within six months last past," refers to the date of the claim, and not of the filing of lien: Ellice v. Paul, 2 Phila. R. 102. The "extra bill" does not set out the time of doing the work or furnishing the materials, because February 19th 1873 is the date of only the first item, viz.: Bill of coal and carting same, $389.50.

On the other hand, if February 19th is assumed as the time when the whole of the extra bill was incurred, then surely it is all barred by lapse of time. At the end of the lien the following occurs: "The work was commenced on or about the 14th day of June 1872, and finished on the 28th day of June 1873, on which day the last work was done, in which time said materials also were furnished." There is no pretence that the work was done continuously, but, on the contrary, the lien expressly declares that it was not, nor under a continuous contract, for it is extra work, outside of and additional thereto. The statement above as to the commencement and end of the work, &c., is of no effect whatever as regards any of the items under the Act of 1836. It can refer only to the contract work. This court has so declared in Shields v. Garrett, 5 W. N. C. 120, a most carefully considered case. The Act of 1849 does not apply to our lien, but if it did there is no statement of time according to its provisions. The bill is confessedly for extra work, and the charges made in the lump. The beginning and ending of the whole work is given, not the beginning and ending of each charge, and this is a fatal defect: Shields v. Garrett, supra; Van Roden v. Campbell, 5 W. N. C. 126; Ellice v. Paul, supra; Smaltz v. Knott, 3 Grant 227. Many of the charges were not sufficiently stated, such as the architect's fees, and others.

Mr. Justice TRUNKEY delivered the opinion of the court, May 5th 1879.

Extra work and materials done and furnished by a contractor during performance of his agreement, may be included in and constitute a part of his claim, if the claim be filed within six months after completion of the contract. Though outside the contract, they are so closely connected with it, that they have always been included with those done and furnished under the contract, in filing the claim. As...