Weathered v. Garrett

• Decision Date: 23 February 1891
• Docket Number: 131
• Citation: 140 Pa. 224,21 A. 319
• Parties: C. B. WETHERED ET AL. v. W. E. GARRETT, JR., ET AL
• Court: Pennsylvania Supreme Court

21 A. 319

140 Pa. 224

C. B. WETHERED ET AL. v. W. E. GARRETT, JR., ET AL

No. 131

Supreme Court of Pennsylvania

February 23, 1891

Argued February 4, 1891

APPEAL BY WYNN & HENWOOD FROM THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY.

No. 131 July Term 1890, Sup. Ct.; court below, No. 30 October Term 1889, C.P.

On June 24, 1889, Charles B. Wethered and Edmund C. Wethered, trading as Thomas W. Wethered's Sons, successors to Thomas W Wethered, brought scire facias sur mechanics' lien against William E. Garrett, Jr., owner or reputed owner, and Thomas Wynn and Alfred Henwood, trading as Wynn & Henwood contractors.

The lien in question was filed on April 22, 1889, for the sum of $1,221.73, against "All those four certain buildings known as the palm-house, two greenhouses, and pit, and lot or piece of ground and curtilage appurtenant thereto, being the ground covered by such buildings and so much other ground immediately adjacent thereto and belonging in like manner to the owner of said buildings and ground as may be necessary for the ordinary and useful purposes of said buildings situate in Lower Merion township, Montgomery county Pennsylvania, and being part of that larger tract or piece of ground described according to plan of Daniel Kinzie, surveyor, made first of December, 1885; [giving a description by metes and bounds] containing forty-four acres, sixty-four perches."

The bill of particulars appended to the lien showed the claim to be for the furnishing of various boilers, pipes, pipe fittings, and castings, etc., between October 1 and November 13, 1888.

Judgment was entered against William E. Garrett, Jr., owner, for want of an affidavit of defence. Wynn & Henwood, contractors, filed an affidavit of defence and obtained a rule to strike off the lien. After argument, the court discharged the rule except as to certain items for freight, railroad fare, etc., which were ordered to be stricken out without prejudice to the remainder of the lien, and amended the judgment against the owner, upon a rule to open the same, by excluding therefrom the amounts of the same items. ^[*] The defendants Wynn & Henwood then filed the following pleas: "Nil debet; nunquam indebitatus; that the plaintiffs are not, nor are any of them, citizens of Pennsylvania; that the materials charged for in the lien were not furnished on the credit of the buildings or any of them; that the buildings are not sufficiently described in the lien filed."

At the trial on March 17, 1890, the following facts were shown:

In the year 1888, William E. Garrett, Jr., gave out contracts for the erection of a group of conservatories upon the tract of land described in the lien, then owned by him. The plans prepared by his architect provided for the erection of a building divided by a partition into two greenhouses, and for another structure called the palm-house, upon a separate foundation and with a separate roof, but joined to the greenhouses and having communicating doors by which to pass from one to the other. The plans provided also for a system of heating apparatus, by which all the greenhouses could be heated from a common source, but so arranged that either of them could be heated separately. The heat was to be supplied from a "pit" or boiler room, adjoining one of the greenhouses, and placed in the cellar of a building occupied as a dwelling by the gardener. There was some difference in the opinions of the witnesses, given upon the trial, as to whether these various structures ought to be regarded as together constituting one building, or whether one or more of them should be regarded as separate buildings, distinct from the others. The architect who prepared the plans testified that, speaking as an architect he would call them one house, but that for purposes of horticulture they were separate buildings. Witnesses for the plaintiffs testified that the buildings as they were erected could readily be identified by the description given in the mechanics' lien.

The contract for putting in the heating apparatus was given to Wynn & Henwood, who ordered from the plaintiff firm, in New York, the supplies required for that purpose. They were shipped by the plaintiffs in September, 1888, except certain valves, etc., for controlling the heat in the pipes leading from the greenhouses into the palm-house, which were furnished about November 5, 1888. While the work was in progress, a set of ventilating apparatus was directed to be put in also. This was ordered from the plaintiffs by Wynn & Henwood, some time after placing the order for the heating apparatus. The ventilating apparatus was furnished and put in early in 1889. The various articles furnished by the plaintiffs were furnished expressly for the conservatory buildings in course of erection for Garrett.

After the completion of their contract with Garrett, the firm of Wynn & Henwood became insolvent and made an assignment for the benefit of creditors.

At the close of the testimony, the court, WEAND, J., charged the jury in part as follows:

[Objection is made to this lien, first, that the locality of the building and the description of the building are not sufficiently described. Now, all that the law requires in a case of this kind is that the claim shall correspond nearly enough with the actual facts of the case to identify the property; and when there is enough in the description of the situation and other peculiarities of the building to identify it, the statute is satisfied. You heard the testimony of Mr. Corson, the surveyor who visited these premises, and who testified to you that owing to the peculiarity of this building, its location, etc., there would be no difficulty, in his mind at least, of identifying it from merely reading the claim. It is not necessary that every stranger should be able to do this, of course. It must be some person who is there for that purpose. If, therefore, you find that, owing to the peculiarity of these buildings, their location, or anything else connected with them, there is enough in this description to point out these as being the buildings mentioned in the claim, then the words of the statute are satisfied.]

[It is also said that they were not furnished on the credit of the building. This is necessary, because if these plaintiffs furnished this material on the personal credit of the contractors, they cannot look to the building to secure their claim; but the law presumes, in the first place, that materials thus furnished are furnished on the credit of the building, and there is not a word of testimony in this case, so far as I can recollect, which would go to rebut that presumption, or to show that they were not furnished on the credit of the building.]

It is also said that they were not furnished in time; that is, within six months of filing the lien. [The lien was filed on April 22, 1889; and, if you believe the testimony of the plaintiffs' witnesses, part of these articles were furnished so late as November, and I think one says in December, which would certainly bring it within the six months. I think there was some testimony from one of the witnesses for the defendants, Mr. Jones, that the work was not completed until some time in the beginning of 1889; so that if you believe that testimony of the defendants' witness, or believe the testimony of the plaintiffs upon that point, these materials were furnished in time.] . . . .

[There is nothing to be drawn in this case against the plaintiffs, from the fact that they are New Yorkers. No matter what state they come from, they are entitled to the protection of our laws, and the jury would not be doing themselves of the state of Pennsylvania or the county of Montgomery justice, if they decided this case against the plaintiffs merely because they were not residents of this state.] No inference, of course, should be drawn against the defendants, on the other hand, simply because they are insolvent or have made an assignment. Neither of these facts has anything to do with this case.

The defendants have asked me to charge you on several points of law:

1. Plaintiffs, not being citizens of Pennsylvania, are not entitled to the benefit and cannot take advantage of our mechanics' lien laws, and the verdict must be for the defendants.

Answer: This is refused. This is not the law.

2. There can be no lien filed for the articles charged for in this case, and the verdict should be for the defendants.

Answer: This is refused.

3. If the jury believe that the only work with which the defendants, Wynn & Henwood, were concerned, was the heating of the building, then the verdict should be for the defendants.

Answer: This is refused.

6. If the jury believe that the structure against which the lien is filed constitutes but a single whole and complete building, then the verdict should be for the defendants.

Answer: This is refused.

7. If the jury believe that the articles charged for were furnished not under a single contract for the entire lot of articles charged for, then the verdict should be for the defendants.

Answer: This is refused.

The jury returned a verdict for the plaintiffs for $1,294.66. A rule for a new trial having been discharged and judgment entered, defendants Wynn & Henwood took this appeal, assigning for error:

1-4. The parts of the charge embraced in [] to

5-7. The refusal of defendant's points. to

10, 11. The refusal of defendant's points.

Judgment affirmed.

Mr. Webster A. Melcher (with him Mr. Alexander Simpson, Jr.), for the appellants:

1. There is a legal standard for the identification required in the description which a mechanics' lien must set forth and the description in the present case was insufficient: Wray v. Haines, 4 W.N. 358; Barclay's App., 13 Pa. 495; ...