Brown v. Kolb

8 Pa. Super. 413, 1898 Pa. Super. LEXIS 70

• Court: Superior Court of Pennsylvania
• Decided: October 10, 1898
• Docket: Appeal, No. 104
• Status: Published

Opinion

Opinion by

Rice, P. J.,

The plaintiff averred in his claim, that the work was done, and the materials ivere furnished, “within six months last past, to wit: between the 26th day of October, 1892, and the 28th day of August, 1893,” under a contract between him and Detrich, the general contractor, “ ratified and approved and confirmed by the said Louis J. Kolb, substituted trustee,” —who for present purposes may be treated as the owner — and “ at the instance and request of both of them.” The bill of particulars annexed to and made part of the claim contained a charge of $878 for “painting and glazing said houses according to agreement with said debtors, being commenced October 26, 1892, and finished August 28,1893,” and other charges, aggregating $24.40 for “ extra work as ordered by above named debtors and done upon the said houses and their credit, and finished the 28th day of August, 1893.” Credits were allowed for payments aggregating$220.35, leaving a balance of $182.50.

The plaintiff testified on the trial, that he contracted with Detrich to paint and glaze the six houses according to the specifications for $63.00 each; that Mr. Kolb was present every day and superintended the work from the beginning; that when it was partially completed Detrich gave up the job, and the plaintiff refused to go on without directions from Mr. Kolb; that thereupon the latter sent for him, and, after being informed of the terms of the contract, and of the amount ($127) that Detrich had paid thereon, told the plaintiff to go ahead and finish the work and he would pay the bill when it was done; that in accordance with these directions the plaintiff finished the work; and that after deducting the payments made by Detrich and Kolb from the amount stipulated by the contract, and adding the cost of the extra work, the amount due him was $182.05. This was what he was permitted to recover under the charge of the court. But, in addition to giving proof of the contract to do the work for a stipulated sum, the plaintiff testified from his books of account as to the work and materials actually furnished under the contract. This testimony was objected to upon the ground that it did not correspond with the amended bill of particulars. The overruling of this objection, and the subsequent refusal to strike out the testimony are the subjects of the first and second assignments of error.

It seems, that the book charges testified to, included work and materials furnished, not only to the six houses in question, but also to another house on a different street. According to the plaintiff’s testimony, the apparent variance between the book entries and the amended bill of particulars was due to-the fact that in the latter he had included only the items furnished to the houses in question. These, he alleged, he had-taken off his time reports, which have been since lost. With this explanation, assuming its truth, the jury would have no difficulty, if it had become necessary to do so, in separating from the general account testified to the items furnished to the houses in question. Thus understood, the ease is plainly distinguishable from Chambers v. Yarnall, 15 Pa. 265. The attempt was, not to apportion the account between the house on Reed street and the block on Scott street, and then to apportion the sum charged to that block between the six houses composing it, but to show — in a roundabout mode it is true— the work and materials actually furnished to the latter block. It was conceded in Chambers v. Yarnall, that “though the entries ” (in the book of account) “do not specify the building, that may be done by parol evidence; and had the entries been accompanied in this instance by an offer of such proof, it would have turned the scale.” So, also, the Supreme Court has held in the last case upon the subject, “ that where there are blocks of buildings so differing in size, style, material, location or time of erection that the materials or labor going into their construction may be readily distinguished and ascertained, the lien claimant may, if he chooses, file a separate claim against each block, apportioned among its own constituent houses, although all the blocks are erected by the same contractor under one contract with the same owner:” Gordon v. Norton, 186 Pa. 168. Moreover, if it was necessary or proper to give evidence of the materials and labor furnished under the contract, as the defendant claims it was, it was a matter of some importance that the jury should have the whole account before them in order that they might understand more clearly the evidence as to the payments. Therefore, we are not prepared to say that error was committed in the admission of the evidence.

Again, it is to be observed, that the plaintiff did not claim, and was not allowed, to recover the amount of his account for the labor and materials, but only the sum stipulated by the contract. In view of the manner in which’the case was submitted to the jury the admission of the evidence was harmless, even if it was erroneous. It is too well settled to require the citation of authority, that a judgment will not be reversed for an error which could have done the appellant no harm. The first and seventh assignments of error are overruled.

The claim, as well as the bill of particulars, states that the work was done and the materials were furnished between October 26, 1892, and August 28, 1893. The extra work was itemized, but the specific date of each item was not given, it being stated that it was finished on August 28, 1893. It is suificiently clear, however, that these items of work and materials were done and furnished while the work under the contract was progressing, and between the dates above mentioned, and the proofs corresponded with the averments of the claim; the lien was filed within six months from the completion of tho work, under the contract. The plaintiff testified as follows: “ I have not the dates when this extra work was done; it was done in the month of August, 1898. I could tell you by those other dates.” It is argued, that he should not have been permitted to recover for this -extra work, (1) because the precise dates when it was done were not given; (2) because it did not appear that it was done within six months before the date of the filing of the lien.

Precisely the same objections were considered in Rush v. Able, 90 Pa. 153, a case where the claim, so far as it related to extra work and materials, was not more specific as to the dates of the several items than that under consideration. As to the first objection it was said, quoting from Calhoun v. Mahon, 14 Pa. 56, and citing Bayer v. Reeside, 14 Pa. 167, and McClintock v. Rush, 63 Pa. 203, as being to the same effect: “ All that is required is such certainty as will enable those interested to discover during what period materials were delivered or the work done so as to individuate the transaction.” Whether a stricter rule applies in the case of a subcontractor furnishing extra work or materials at the instance of the contractor, and whether that rule applies in the present case are questions which we shall consider hereafter. It will, however, be proper to remark in this immediate connection that the extra work and materials for which the plaintiff claims were ordered by the owner of the buildings and not by the original contractor for its erection. As to the second objection, the court said, referring to the case of a contract between the claimant and the owner: “ Though outside the contract, they” (extra work and materials) “are so closely connected with it, that they have always been included with those done and furnished under the contract in filing the claim. . . . Including contract and extra work in same lien subserves the interests of both contractor and owner, and it accords with such interests, as well as with the statute, that the claim may be filed within six months after the building is finished, even if one kind, in fact, was not within six months of the filing.” The third assignment is overruled.

The fourth assignment cannot be sustained. The mechanic’s lien and bill of particulars had been admitted in evidence without objection or exception before the plaintiff closed his case. Furthermore, the defendant’s counsel had used them in the cross-examination of the plaintiff and the bill of particulars had been referred to in such a way as to make it a part of his testimony. Under these circumstances it was too late to except to the admission of the papers after the evidence was closed : Duvall v. Darby, 38 Pa. 56. Treating the objection then made as a motion to strike out, the ruling was not, under the circumstances, reversible error: Robinson v. Snyder, 25 Pa. 203; Lowrey v. Robinson, 141 Pa. 189. We are not to be understood as intimating that the objection would have been valid if it had been made in time. The general rule is that the claim, including the bill of particulars, may be read to and sent out with the jury in order that they may know what they are trying and there was nothing peculiar in this case to make it an exception. See Hall v. Masser, 24 Pa. 507; Harman v. Cummings, 43 Pa. 322; Lybrandt v. Eberly, 36 Pa. 347.

The remaining assignments may be considered together. As we understand the position taken by the defendant’s counsel it is this : The claim as originally filed was defective because of the lumping charge of $378, and was not amendable after the time for filing a lien had expired. In support of this position they cite McFarland v. Schultz, 168 Pa. 634, and Wharton v. Investment Company, 180 Pa. 168. In the first mentioned case Mr. Justice McCollum said: “ The claimant was a subcontractor and bound to strict compliance with the provisions of the statute on which he relied for his lien. The reasons for exacting such compliance were clearly stated by Strong, J., in Russell v. Bell, 44 Pa. 47, and need not be repeated here. It has been repeatedly held by this court that a sub-contractor must specify the items of his claim for work or materials and that a lumping charge for either does not satisfy the requirements of the statute and should be stricken out on motion.” In Wharton v. Investment Co., Mr. Justice Mitchell said: “It has been settled, certainly since Shields v. Garrett, 5 W. N. C. 120, if not before, that such a claim is incurably bad.” The reason given in the cases for requiring strict compliance with this rule when the claimant is a subcontractor, between whom and the owner no privity has existed, are that the agreement is not the measure of the owner’s responsibility; therefore it is important that he should be informed by the claim filed as to the particulars of the demand, that he may be enabled to make the necessary inquiries to satisfy himself of its justice as a lien upon his property. But in the present case the claimant was not, strictly speaking, a mere subcontractor. The work was done and the materials were furnished for a stipulated sum “ratified, approved and confirmed” by the owner, at whose special instance and request, and upon whose express promise to pay it was carried on to completion. He had all the information which he would have had if it had been made with him in the first instance, and, under the special circumstances of the case as alleged by the plaintiff, assuming them to be established to the satisfaction of the jury, he was not in a position to deny that the measure of the plaintiff’s right to recover was the stipulated sum, less the payments.

Work done and materials furnished under a special contract with the owner for a stipulated sum need not be itemized in the claim. Each party has knowledge of the claim under it and the reason for furnishing particulars does not exist: Young v. Lyman, 9 Pa. 449; Hahn’s Appeal, 39 Pa. 409, 413; Baptist Church v. Trout, 28 Pa. 153, 156. This distinction is clearly recognized in Russell v. Bell, supra, Lee v. Burke, 66 Pa. 336; Shields v. Garrett, supra; Gray v. Dick, 97 Pa. 142 (construing the local Act of March 24, 1849, P. L. 675), and Brown v. Myers, 145 Pa. 17. Upon the averments of the claim, the testimony and the inferences, that a jury might legitimately draw therefrom, this case was within this principle, and not within the reason of the rule enunciated in the cases relied on by the defendant’s counsel, or the rule itself. It follows, that the court committed no error in refusing to strike off the lien or in negativing the first, second and fourth points. The third point (seventh assignment) has been considered in another connection.

All the assignments of error are overruled, and the judgment is affirmed.