Tarentum Borough v. Moorhead

• Decision Date: 17 October 1904
• Docket Number: 50-1904
• Citation: 26 Pa.Super. 273
• Parties: Tarentum Borough v. Moorhead, Appellant
• Court: Pennsylvania Superior Court

26 Pa.Super. 273

Tarentum Borough v. Moorhead, Appellant

No. 50-1904

Superior Court of Pennsylvania

October 17, 1904

Argued April 13, 1904 [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from order of C.P. No. 2, Allegheny Co.-1902 No. 399, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Tarentum Borough v. Emma Moorhead.

Scire facias sur municipal lien for paving.

Rule for judgment for want of a sufficient affidavit of defense.

The defendant filed the following affidavit of defense:

On September 22, 1898, the burgess and the councils of the borough of Tarentum, Pennsylvania, plaintiff herein, ordained and enacted an ordinance, a copy of which is hereto attached marked " Exhibit A" and made a part hereof authorizing the grading, curbing and paving of South Canal street from the east line of Wood street to the east line of Ferry street, in the said borough of Tarentum. That in pursuance of said ordinance, the said borough of Tarentum entered into a written agreement with Messrs. Smith & Wood, contractors, on November 16, 1898, by authority of a resolution passed October 17, 1898, for the grading, curbing and paving of that portion of said South Canal street, set forth in said ordinance, which provided, inter alia, as follows:

That said contractors shall commence work on said street on such a day and at such a point or points as the borough engineer may designate, and fully complete the same in accordance with said agreement, on or before the expiration of thirty days next thereafter, except the time may be extended by council, with a penalty of $ 10.00 to be deducted for each and every day the work is not completed. The whole contract sum or price to be paid at the expiration of nine months, if the work was in good order to the satisfaction of the borough engineer and street committee, in accordance with the prices set forth in their bid for said work, accepted by council and made a part of said agreement.

That said contractors should not be entitled to demand or receive full payment for the work or materials done and used on said street until the same shall have been fully completed in the manner set forth in said agreement, and such completion duly certified to the street committee by the borough engineer, and that each and every of the stipulations in said agreement have been complied with, and until said street committee shall be satisfied therewith.

That the estimate of the borough engineer shall be final and conclusive of the amount of work performed without exception or appeal. That said contractors shall be paid as they complete each square to the satisfaction of the borough engineer and paving committee, one third of the contract price of each square, and the balance, except seven per cent, in four months, or sooner if collected.

The said work to be commenced November 21 and finished December 21, 1898.

That in pursuance of said contract, the said contractors entered upon said street and graded, curbed and paved that portion thereof from the east line of Wood street to the east line of Boyd street, one square, except a strip thereof from three to four feet wide, between the north curb thereof and the line of the right of way of the West Penn Railroad in front of and past this defendant's property, as described in the lien upon which scire facias was issued on this case, and completed the same on or about June 19, 1899, to the satisfaction of the borough engineer and street committee, at which time the borough engineer furnished the said borough councils with an estimate of the work so completed, upon which the cost of said work was fully paid to said contractors, the final payment thereon of seven per cent being made September 24, 1900.

That said contract was not extended after the completion of the work as herein set forth, and no further work was ever done or performed or materials furnished under said contract, on that portion of said street in front of defendant's said property, or on any part or portion of said South Canal street.

That the work which was completed on July 8, 1901, as alleged in the lien filed, upon which this scire facias was issued, was work begun on or about May --, 1901, under and by virtue of another contract in writing between said borough, or the street committee of said council of said borough and Messrs. Smith & Wood, contractors, for the grading, curbing and paving of said South Canal street, from the east line of Boyd street to the east line of Ferry street, at an increased price for the material used therein, over and above the price for material used in the work done according to the first contract herein referred to, on that portion of said street, in front and past defendant's said property, which said contract was entered into without an ordinance or resolution of the council of said borough, and without offering or attempting in any way to get bids thereon for the work to be performed thereunder.

That it was upon the completion of the work under this contract that the lien upon which this scire facias was issued, was based and filed against defendant's said property, two years, or more, after the work in front thereof had been completed, under another and different contract, which said contract and the contract of November 16, 1898, hereinbefore referred to are in the possession and control of the officers and agents of the said borough, and therefore, defendant calls for the production of the same upon the trial of this cause.

Defendant therefore avers, believes and expects to be able to prove upon the trial of this cause, that the work and material for which the lien was filed in this case, against her said property, was for work done and materials furnished under the first contract herein recited, at a different price for the material used therein, which said work was completed more than two years before the work was finished under the second contract as herein recited, and about two years before the same was begun, and for work and materials furnished under said second contract as aforesaid. That the lien upon which this suit is based was therefore filed for a pro rata share of the sum total of the cost of the work done under both of said contracts, more than two years after the contract was completed in front of defendant's property, as aforesaid under said first contract, contrary to the act of assembly and ordinance under which said work was performed, or any act or acts of assembly authorizing such a lien.

The court on November 3, 1902, entered an order discharging a rule for judgment, but subsequently revoked this order and made absolute the rule for judgment.

Error assigned was the order of the court making absolute the rule for judgment.

Affirmed.

J. A. Beatty, for appellants.

Nelson McVicar, with him Richard A. Kennedy and David Smith, for appellee, cited: ...