Taylor v. Murphy

• Decision Date: 11 April 1892
• Docket Number: 456,455
• Citation: 23 A. 1134,148 Pa. 337
• Parties: Taylor v. Murphy, Appellant; Taylor v. Williams, Appellant
• Court: Pennsylvania Supreme Court

23 A. 1134

148 Pa. 337

Taylor v. Murphy, Appellant;

Taylor v. Williams, Appellant

Nos. 455, 456

Supreme Court of Pennsylvania

April 11, 1892

Argued January 11, 1892

Appeals, Nos. 455 and 456, Jan. T., 1892, by defendants Christopher J. Murphy and John C. Williams, from judgments of C.P. No. 4, Phila. Co., June T., 1890, Nos. 253 and 254, for want of sufficient affidavits of defence, in favor of plaintiffs, Benjamin F. Taylor and F. Wardell Taylor, trading as B.F. Taylor & Co.

Sci fa. sur mechanics' liens.

Robert Christy, a builder, entered into a contract with appellants, Murphy and Williams, jointly, for the erection of a house for each upon adjacent lots which they respectively owned. Christy defaulted, and the persons who had been employed by him, or from whom he had purchased materials, filed their liens. The amount of these liens would exceed the contract price.

The substance of the affidavits of defence which were filed appears by the opinion of the Supreme Court.

The court below made absolute a rule for judgment for want of a sufficient affidavit of defence in each case, and defendants appealed.

Errors assigned were (1) entering judgment; and (2) not discharging the rule.

Judgment affirmed.

E. Spencer Miller, for appellants, relied upon Schroeder v. Galland, 134 Pa. 277, and Murphy v. Morton, 139 Pa. 345.

To have taken up and specified the defects of each article in detail in the affidavit of defence would have required the skill and experience of a mechanic, as well as have swollen the affidavit to a voluminous size. An affidavit of defence must state the facts with reasonable precision: Kaufman v. Cooper Iron Co., 105 Pa. 537.

Joseph J. Broadhurst, for appellees. -- The material man is entitled to be paid whatever the materials furnished are reasonably worth, and if any loss is sustained, the owner has his remedy on the contract against the contractor. In the case of sale of the premises by the sheriff, provision is made, in case the property will not pay the liens in full, that they shall be averaged. Mechanics and material men cannot be cut out by the contractor undertaking to build a house for less than it is worth: Act of June 22, 1836, sec. 22, P.L. 699; Odd Fellow's Hall v. Masser, 24 Pa. 510.

The affidavits do not exhibit the elements of a substantial defence. There is entirely too much left for inference: Lord v. Ocean Bank, 20 Pa. 384; Twitchell v. McMurtrie, 77 Pa. 383; Peck v. Jones, 70 Pa. 83; Kaufman v. Mining Co., 105 Pa. 537; Griel v. Buckius, 114 Pa. 187; Noble v. Kreuzkamp, 111 Pa. 68; Gould v. Bush, 13 W.N.C. 29.

Before PAXSON, C.J., STERRETT, GREEN, WILLIAMS, McCOLLUM, MITCHELL and HEYDRICK, JJ.

OPINION

MR. JUSTICE WILLIAMS:

The plaintiff furnished lumber and manufactured woodwork, for the erection of defendant's dwelling-house, on the order or direction of Christy, the contractor. The mechanics' lien, on which the writ of scire facias in this case issued, was entered for the amount of material so furnished. The defendant interposed an affidavit of defence, in which several reasons were urged as sufficient to prevent the entry of a judgment and carry the case to a jury for trial. These may be stated as follows:

1. That the house was erected under a written contract, in which Christy was bound to provide all material and labor, and complete the house, for the sum of $3,750, to be paid when the building was finished; that he did not finish it, and, for that reason, nothing was due to him, or to a subcontractor under him.

2. That the aggregate amount of the liens entered against the building, together with the cost of completing it, would exceed the contract price, and that the liens, if sustained, should abate proportionably, in order to bring the total cost down to the contract price.

3. That no liens could be entered, under the express stipulations of the contract with Christy, the builder.

4. That the material furnished was not such as the contract required, and, in consequence of its defective character, the house was worth $125 less than it otherwise would have been, for which sum, at least, there was a good defence.

It is urged that the principle announced in Schroeder v Galland, 134 Pa. 277, is broad enough to cover all the propositions contained in the affidavit, and makes a reversal of the judgment entered in the court below necessary. In Weaver v. Sheeler, 118 Pa. 634, we held, that all persons furnishing labor or materials for the erection of a building were bound to take notice of the title of the apparent owner. If he was an intruder without right the lien of contractor and subcontractor must alike fall. If he held an equitable title only, the lien would bind such title as he had, and no more. In Schroeder v. Galland, we went a step further, and held that, where the contractor had stipulated that no lien should be filed, he could not confer a right upon his subcontractor that he did not possess. The contract between the owner and the contractor is the source from which the right of the subcontractor is derived, under the provisions of the...