text:
    Knelly, Appellant, v. Horwath.

      Mechanics lien — Contract—Specification—Plan—Statutory character of lien.

    A mechanic’s lien is purely statutory and a compliance with the statutory requirements is necessary in order to give it validity. There is no intendment in its favor. It must be self-sustaining and must show on its face that it is such a lien as the statute authorized the claimant to file.

      Where specifications are expressly made a part of a building contract or are referred to as a part of it, they must be filed with it. If only a part of the specifications apply to a work for which a lien is filed, that part only need be filed. Plans, however, need not be filed.
    A mechanic’s lien claimant did not file specifications with the contract, but to support a claim for extra work filed a bill for materials sold and work done and annexed it to the lien. There was no statement of the terms and conditions under which they were furnished, and but few items of the bill were the subject of mechanic’s lien. Held, that the lien could not be sustained.
    Argued Feb. 15, 1904.
    Appeal, No. 62, Jan. T., 1903, by plaintiff, from order of C. P. Schuylkill Co., Sept. T., 1902, No. 6, sustaining motion to quash mechanic’s lien in case of C. H. Knelly v. John Horwath and Annie Horwath.
    Before Mitchell, C. J., Fell, Brown, Potter and Thompson, JJ.
    Affirmed.
    Motion to quash mechanic’s lien.
    Marr, J., filed an opinion which was in part as follows :
    [The contract, a copy of which is annexed and made part of the lien, in part, reads as follows : “ Witnesseth: The contractor covenants and ag’rees to erect for the said John and Anna Horwath on their lot of ground, situate in the borough of McAdoo, Penna., in a good and substantial and workmanlike manner, with good material and according to the plans and specifications, which shall be a part of this contract, a new two story hotel building with one story dance room attached. Hotel part to have a cellar, as per specifications. . . . Whole roof of hotel, ball room and water closet and dressing room to have tin roof, same to be as called for in specifications and shown on plans, both of which are a part of the agreement. Excavate cellar and build wall as shown on plans and specifications. All exterior and interior wood-work of building to have two coats of best white lead and pure linseed oil paint, as called for in specifications, which is con- • sidered as part of the agreement.”
    By the foregoing extracts from the referred to agreement, it is manifest that the parties to same considered the plans and specifications as a part of their agreement or contract, and yet the claimant has filed neither the specifications nor plan, or copies of same, with the lien as filed.] [1] An additional agreement was entered into October 23, 1901, by the parties for the erection of an additional length to the hall, contracted for in the first agreement, which provides that the additional length shall be built and finished with material and work of the kind as called for in the first contract. Nowhere does the kind of material or the character of the labor appear in the lien filed or in the copies of the contracts .or in the bill of particulars annexed. The fifth and sixth clauses say that the kind and character of labor and materials furnished, or both, are set forth and particularly described in a bill of particulars hereto annexed and made part hereof. A reference to the bill of particulars shows an itemized bill of materials furnished and labor performed, many of which articles, therein mentioned, are not the subject of a lien and then ends with the following items: “ March 29, new building, per contract $3,300 addition of 20 ft. per contract. $570.” From what appears, neither in the copies of the contracts filed nor in the bill of particulars annexed, can any information, as to the kind and character of the material furnished or to be furnished or the labor to be performed, be gained. [It is evident that information on the referred to subjects can only be gained from the specifications, which specifications are made a part of the contract by the contract itself and the failure to annex a copy of the specifications to the lien as filed seems fatal to its validity.] [2]
    ********
    In the present case the first agreement several times refers to the plans and specifications as a part of the contract. The second agreement refers to the first agreement, for the kind of labor and material furnished, and yet it, the first agreement, is entirely silent upon these subjects, except as furnished by the plans and specifications, which are made a part of the contract, but are not filed with it. The lien filed, in its fifth and sixth clauses, as before said, refers to a bill of particulars annexed for information as to the kind and character of labor done and materials furnished. A reference to the bill of particulars shows that it is perfectly silent upon these subjects but refers to the contracts for information. To annex a copy' of the plans and specifications to the contract when filed, may make the lien lengthy and burdensome to file, but we cannot hold this as a valid reason for failing to comply with the statutory requisites. [The contracts make the plans and specifications a part of them and therefore they should have been filed with the contracts as a part of them.] [8] Nor does a bill of extras aid the lien. They do not seem to be embraced in the contract or furnished in pursuance of same. Many of the items are not subjects of the lien. For instance benches, screen frames, pictures, moldings, repairing old bar and beer stands and similar items. These items are all separate and independent items, and are in no way connected with the original contracts and can not aid the lien.

      Errors assigned were (1-8) portions of the opinion of the court below, quoting them; (4) quashing the lien and directing it to be stricken from the records.

      H. O. Bechtel, with him Kline, Smith Bigelow, for appellant,
    cited : Young v. Lyman, 9 Pa. 449; Russell v. Bell, 44 Pa. 47; Bohem v. Seel, 185 Pa. 382; Chapman v. Faith, 18 Pa. Superior Ct. 578; Davis v. Farr, 13 Pa. 167; Brown v. Kolb, 8 Pa. Superior Ct. 413; Howard v. Olyphant Boro., 181 Pa. 191; Learmonth v. Veeder, 11 Wis. 138; Mercer Milling and Lumber Co. v. Kreaps, 18 Pa. Superior Ct. 1.

      A. W. Schalch, for appellees,
    cited: Barclay’s App., 13 Pa. 495; Bevan v. Thackara, 143 Pa. 182; Singerly v. Cawley, 26 Pa. 248; McCay’s App., 37 Pa. 125; Smaltz v. Knott, 3 Grant, 227; Lauman’s App., 8 Pa. 473; Lycoming Mut. Ins. Co. v. Sailer, 67 Pa. 108; American Underwriter’s Assn. v. George, 97 Pa. 238; Farmers & Mechanics’ Mut. Ins. Co. v. Meckes, 10 W. N. C. 306; City Ins. Co. v. Bricker, 91 Pa. 488.
    March 21, 1904:
   Opinion by

Mr. Justice Fell,

This appeal is from an order of the court making absolute a rule to show cause why a mechanic’s lien should not be struck from the record. The plaintiff was the contractor for the whole “building, and the defendants were the owners. The contract was.in writing and it provided for the erection of a two-story hotel building for an agreed sum, according to plans and specifications which were expressly made a part of the contract. A second contract was made for the enlargement of a part of the building. This also was in writing and it provided that the work and materials were to be of the kind called for in the first agreement. Copies of both contracts were filed with the lien, but no copies of the plans and specifications were filed. The question raised is whether the failure to file the plans and specifications made the lien invalid.

The eleventh section of the Act of June 4, 1901, P. L. 481, specifies what a lien shall contain, and one of the things to be set forth by the claimant is “ a copy of his contract or contracts, if in writing, or a statement of the terms and conditions thereof, if any of them are verbal.” As the specifications were made a part of the contracts by act of the parties and as they áre in fact an essential part of both contracts because they provide for all the details of construction and without them the contracts would be incomplete, the omission to file them cannot be disregarded. A mechanic’s lien is purely statutory and a compliance with the statutory requirements is necessary in order to give it validity. There is no intendment in its favor. It must be self-sustaining and must show on its face that it is such a lien as the statute authorized the claimant to file. This has been the uniform course of decision under former acts: Smaltz v. Knott, 3 Grant, 227; Wharton v. Real Estate Investment Co., 180 Pa. 168. We therefore hold that where the specifications are expressly made a part of the contract or are referred to as a part of it, they must be filed with it. If only a part of the specifications apply to a work for which a lien is filed, that part only need be filed.

Plans may be important or even necessary to indicate the methods to be followed and the results to be accomplished in carrying out a building contract. But there is a distinction between them and specifications that provide for the kinds, quality and quantity of materials to be used and the work to be done and the time and manner of doing it, without which the contract would be incomplete and ineffective. They are not in the same sense nor to the same extent an integral part of the contract. Their office is rather to illustrate and explain what is to be done. Often they consist of drawings, designs and plates that are not the property of the contractor nor-within his control but belong to the owner or the architect of the building, and their size and form are often such that the filing of copies of them, if not utterly impracticable, would cause great public and private inconvenience. The purpose of the eleventh section of the act is to require the claimant to state the nature and extent of the lien claimed and the grounds on which the demand is based. Full effect may be given to the part of this section that provides for the filing of a written contract without adopting a construction that would require the filing of building plans.

The lien cannot be saved on the ground that it contains some items that are good. The only support the claim for extra work has is a bill for materials sold and work done, annexed to the lien. Very few of the items of the bill could be made the subject of a mechanic’s lien. If these were provided for by the specifications they fall with the rest of the lien and if they were furnished under a verbal contract with the owners, there is no statement of the terms and conditions thereof ” as required by the act.

The order striking off the lien is affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Mitchell,

license: Public Domain

text:
    Emery v. Philadelphia, Appellant.

      Negligence — Municipalities—Highway—Electric wire — Death.
    A municipality may not with impunity leave a highly dangerous and insidious obstruction, such as a heavily charged and exposed electric wire, on any part of a public highway or so near it that a traveler, accidentally or intentionally deviating a few feet from the beaten track, may encounter it to the risk of his life.
    Where a person is killed by a heavily charged and exposed electric wire used by the police department of a city, the city is not relieved from liability by the fact that the accident occurred on the side of a road of which sixteen feet was macadamized in the middle, and that if deceased had kept to the macadamized portion of the road he would not have lost his life.

      Negligence — Damages—Death—Carlisle tables — Husband and wife.

    In an action by a wife to recover damages for the death of her husband, the Carlisle tables are admissible as evidence of the expectation of life of the husband, but cannot be used to show the plaintiff’s own expectation of life.

      Argued Jan. 8, 1904.
    Appeal, No. 158, Jan. T., 1903, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1902, No. 1470, on verdict for plaintiff incase of Mary Emery v. Philadelphia.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Trespass for the death of plaintiff’s husband. Before Wilt-bank, J.
    At the trial it appeared that on March 10, 1903, Harry Emery, husband of plaintiff-, was found dead on the east side of the Welsh road, a public highway in Philadelphia, between Bustleton and Holmesburg. Death was due to an electric shock from contact with a broken fire alarm wire lying at the side of the road. The road in question ivas forty-five feet wide, and sixteen feet of the road had been macadamized by the city.
    The defendant presented the following points :
    1. Under all the evidence in this case your verdict must be for the defendant. Answer: That point I refuse. [1]
    2. The city of Philadelphia is vested with discretion in the selection of the character and extent of the improvements to be made in the public highways within its boundaries. If the authorities so desire, public roads may be maintained without paving of any kind so long as they are reasonably safe for travel. And if the highway be opened to a width of forty-five feet, more or less, in a rural district, the authorities may designate what portion of it shall be used by travelers thereon; in other words, they have the power to limit the use of the highway in such districts to the wrought way of the road, and thus limit the responsibility of the municipality for injuries sustained thereon by a person intentionally departing therefrom without reasonable necessity. Answer: I decline so to charge. [2]
    3. Where a person voluntarily leaves the part of the road which the public authorities have clearly marked out for travel, and in consequence is injured, the municipality is not liable, although the accident be due to a defect or obstruction existing within the road as laid out, but not upon or within the wrought way. - If you should find, therefore, the plaintiff’s decedent alighted from his wagon and went upon the ground-not designed or intended for public travel, and while there said decedent was killed in consequence of coming in contact with a wire charged with electricity, the plaintiff is not entitled to recover damages in this case, and your verdict must be for the defendant. Answer : I decline that point. [3]
    4. If you find the plaintiff’s decedent voluntarily left the wrought way and went upon ground not intended for public travel and while there met his death in consequence of coming in contact with a wire charged with electricity, your verdict must be for the defendant, even though you find that the ground upon which he was killed was within the lines of the Welsh road. Answer: I decline that point. [4]
    5. It may be assumed that on the morning of March 10, 1902, the wrought way of the Welsh road was reasonably safe for public travel, and that if plaintiff’s decedent had kept upon it no injury could or would have been sustained by him in consequence of the fire alarm wire falling from its position on the pole. The accident was due to the fact that said decedent entered upon that part of the road which the city had no reason to anticipate he would use. And even though you should find that said decedent’s hat blew off and that the accident to him resulted from an attempt to secure it, the city was not bound to anticipate such an occurrence and to provide against it any more than it would be its duty to foresee that by some sudden emergency not due to a defect in the road, a pedestrian while traversing the same might be impelled in an attempt to avoid injury, to go upon the side of the road. The immediate and producing cause of the injury, therefore, was the action of plaintiff’s decedent in leaving the wrought way of the road, and not the fire alarm wire at side of road. The city not being responsible for the action of plaintiff’s decedent in leaving the road, your verdict must be for the defendant. Answer: I refuse that point. [5]
    6. The testimony in this case will not warrant the inference that plaintiff’s decedent left the wrought way of the road for the purpose of entering the field adjoining the road, or for the purpose of securing his hat, or for any other purpose, which would make the city liable for his death in consequence of coming in contact, with the fire alarm wire, and your verdict, therefore,-should be for the defendant.. AnswerThat I decline. [6]

      7. The wire which caused Emery’s death having been under the management, control and supervision of the electrical bureau, and used exclusively for fire alarm purposes, the city is not responsible for any accidents due exclusively to the careless supervision of said wire by the officials of said bureau. If you find, therefore, that Emery’s death was due to the negligence of the officials of said bureau, or to the combined negligence of said officials and the said Emery, the plaintiff is not entitled to recover, and your verdict must be for the defendant. Answer: That I decline. [7]
    8. In determining the question of the negligence of the city in caring for the highway, you are to talce into consideration that the accident occurred on a country road in a sparsely populated district; that the traveled portion of the road was macadamized for a width of 16 feet; that the ground on the east side of the road between the macadam and the fence was unfit for travel; that the wire was located a number of feet from the improved portion of the road; that the grass in proximity of the wire was charred and blackened; that it could be readily seen by day, and that a red light was placed near it by night. Answer: That I decline to charge because it assumes as facts conclusions which must be left to the jury to be drawn from the proofs, and because it is not in all of its averments of fact testified to. [8]
    Verdict and judgment for plaintiff for $5,000. Defendant appealed.

      Errors assigned were (1-8) above instructions quoting them; (9) in admitting the Carlisle tables in evidence to prove the expectancy of Emery’s life, over. defendant’s objection, there being no proof or offer to prove the age, condition of health, habits and expectation of the life of the widow plaintiff, - or that she would have outlived him.

      J. W. Catharine, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellant.
    Where the corporation maintains in good traversable . condition a part of the road of sufficient width .to reasonably accommodate the travel thereon, its full. duty .is discharged: Cartright v. Belmont, 58 Wis. 370 (17 N. W. Repr. 237); Tritz v. City of Kansas, 84 Mo. 632; Austin v. Ritz, 72 Tex. 391 (9 S. W. Repr. 884); Perkins v. Fayette, 68 Me. 152; Arey v. Newton, 148 Mass. 598 (20 N. E. Repr. 327).
    There being no duty to maintain a public road through an agricultural district in safe, traversable condition for its full width the municipality is not ordinarily liable for an accident happening to one intentionally and without necessity, leaving the wrought way: Scranton v. Hill, 102 Pa. 378; Monongahela v. Fisher, 111 Pa. 9; Worrilow v. Upper Chichester Township, 149 Pa. 40; Mattimore v. Erie, 144 Pa. 14.
    The rule of nonliability of municipal corporations for accidents outside of the wrought way was recognized and applied in other states in the following cases: Blake v. Newfield, 68 Me. 365; Perkins v. Fayette, 68 Me. 152; Keyes v. Marcellus, 50 Mich. 439 (15 N. W. Repr. 542); Fisher v. Cambridge, 57 Hun, 296 (10 N. Y. Supp. 623); Arey v. Newton, 148 Mass. 598 (20 N. E. Repr. 327); Harwood v. Oakham, 152 Mass. 421 (25 N. E. Repr. 625); Biggs v. Huntington, 32 W. Va. 55 (9 S. E. Repr. 51); Fitzgerald v. Berlin, 64 Wis. 203 (24 N. W. Repr. 879); Burr v. Plymouth, 48 Conn. 460; Carolus v. New York, 19 N. Y. Super. Ct. 15.
    It is not sufficient to prove the decedent’s expectancy of life without proving also the plaintiff’s expectancy of life: Baltimore, etc., Turnpike Road v. State, 71 Md. 573 (18 Atl. Repr. 884).
    Where a parent sues for the death of a child, the necessity of considering the expectancy of life of the parent is obvious, and has been asserted in a number of cases : Little Rock, etc., Ry. Co. v. Voss (Ark.), 18 S. W. Repr. 172; Fordyce v. McCants, 55 Ark. 384 (18 S. W. Repr. 371); Louisville, etc., Ry. Co. v. Wright, 134 Ind. 509 (34 N. E. Repr. 314); Balt., etc., R. R. Co. v. State, 41 Md. 268; Maryland v. Balt., etc., R. R. Co., 1 Hughes (U. S.), 337.

      Fred. Taylor Pusey, with him O. J. Hepburn, for appellee.—
    The duty required of the city was more than to merely keep the roadway clear of impediments to easy and convenient passing and travelling. It was required to exercise a careful police supeiwision of the electric wires suspended along its highways, to protect citizens from injury, and it was the duty of the municipality to recognize and perform this duty in more than a perfunctory manner.: Herron v. Pittsburg, 204 Pa. 509; Mooney v. Luzerne Borough, 186 Pa. 161; Heh v. Gas Co., 201 Pa. 443; Koelsch v. Philadelphia Co., 152 Pa. 355; Corbalis v. Newberry Twp., 132 Pa. 9; Dalton v. Tyrone Twp., 137 Pa. 21; Monongahela v. Fischer, 111 Pa. 9; Kennedy v. Williamsport, 11 Pa. Superior Ct. 91; Com. v. Shoemaker, 14 Pa. Superior Ct. 194.
    The city was liable as owner of the wire: Dillon v. Allegheny County Light Co., 179 Pa. 482; Western Union Tel. Co. v. Thorn, 5 Am. Elec. Cases, 283; Electric Co. v. Simpson, 5 Am. Elec. Cases, 278; Haynes v. Raleigh Gas Co., 114 N. C. 203 (19 S. E. Repr. 344); Newark Electric Light, etc., Co. v. Ruddy, 48 Cent. Law Journ. 49; Powers v. Phila., 18 Pa. Superior Ct. 621; Herron v. Pittsburg, 204 Pa. 509.
    March 28, 1904:
   Opinion by

Mr. Chief Justice Mitchell,

The stress of the appellant’s argument is in the contention that the city is not bound to keep its rural highways in safe travelable condition for their full legal width and as the body of the deceased was found outside of the “ wrought portion ” of the Welsh road, lie must be assumed to have gone there at his own risk. The first six and the eighth assignments of error are based on this argument. But the learned judge could not have charged the jury on this view as it assumed facts which were not conceded. By the “ wrought portion ” of the road, appellant means a space of sixteen feet in width in the middle of the road which was laid with what appears to have been an unusually good macadam pavement. • But it was in evidence that on each side of this paved strip was a smooth surface of sod or earth at the same level but inclining gradually to the sides and apparently intended for the same use, in fact what is commonly known in this part of the country as a “ summer road ” used by many travelers in good weather in preference to the macadamized stone. Moreover it is not conceded that the locality was clearly rural and the road at that point a mere improved country road. All of these matters were proper for the consideration of the jury in the whole case, and could not have been safely assumed by the court as admitted or proved beyond controversy. .

But even if the facts had been conceded to be as appellant claims, the exemption from liability outside of the wrought portion of the road could not be carried to the extent appellant contends for. It is true that in some of the very numerous cases on the subject it is said that as to country roads the township or other municipality does its duty if it keeps a reasonable portion of the road in safe and convenient condition for travel, and that this rule applies in certain circumstances to roads which have become city streets, and that, as a corollary, a traveler who voluntarily leaves the safe portion of the road assumes the risks of so doing. But all these expressions must be read in connection with the special facts under consideration at the time. In Monongahela City v. Fischer, 111 Pa. 9, the traveler crossed the highway diagonally at night for the purpose of taking a footpath over adjoining land, missed the path, and fell over the outer wall of a culvert. The principal question in the case was the instruction of the trial judge on the subject of contributory negligence. This case which is the strongest on that side of the question it is said in Corbalis v. Newberry Township, 132 Pa. 9, “ was a very close one .... and depended largely on its own facts, none of which were disputed.” See also Scranton v. Hill, 102 Pa. 378; Merriman v. Phillipsburg Borough, 158 Pa. 78; and Wall v. Pittsburg, 205 Pa. 48, all of them likewise cases of injury occurring at night, where the traveler to that extent voluntarily encountered unknown risks.

But none of these cases give any support to the contention that the city, or even a borough or township may with impunity leave a highly dangerous and insidious obstruction, such as a heavily charged and exposed electric wire, on any part of a public highway, or so near it that a traveler accidentally or intentionally deviating a few feet from the beaten track, may encounter it to the risk of life. On the contrary it has been uniformly held that those using this new and dangerous agent are bound to the very highest degree of care practicable to avoid injury to every one who may be lawfully in proximity to the wires, and liable to come, accidentally or otherwise, in contact with them: Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540.

The fact that the wires are owned or used by the city as part of its police instruments, does not alter the rule, or exempt the city from liability under it: Mooney v. Luzerne Borough, 186 Pa. 161; Herron v. Pittsburg, 204 Pa. 509.

The only remaining question relates to the admission of the Carlisle Mortality Tables, as evidence of the expectation of life of plaintiff’s husband. Those tables have been held admissible and that question is not now open: Steinbrunner v. Pittsburg, etc., Ry. Co., 146 Pa. 504; Campbell v. York, 172 Pa. 205; Kerrigan v. Penna. R. R. Co., 194 Pa. 98. They are not conclusive and are far from satisfactory evidence but are admitted from necessity because they are the best guide attainable to the establishment of a material but necessarily uncertain fact, the natural duration of the individual life which has been terminated by the injury in controversy. Uncertain and unsatisfactory as any test drawn from the general duration of life must be when applied to an individual case, it is better than the uninstructed guess of a jury. But the restrictions under which such testimony should be received and the cautions with which it should be submitted to the jury are clearly and authoritatively set forth by our Brother Dean in Kerrigan v. R. R. Co. supra, and see also McKenna v. Citizens’ Nat. Gas Co., 198 Pa. 31.

Appellant’s assignment of error however is not founded on the simple admission of the Carlisle tables, but on their admission as evidence of the expectation of life of plaintiff’s husband, without accompanying proof of plaintiff’s own age and expectation. It is argued that while the husband might have lived a certain number of years, yet the wife might not, and therefore her damages ought to be limited by the double contingency of their joint lives. The point is new, and the fact that it has not been raised before in any of the very numerous cases where it would have been appropriate if sound, would seem to indicate that it has not appeared tenable to the professional mind. We are of this opinion. The life of the husband having been terminated by the accident, its probable duration in the regular course of nature must, as already said, be approximated by the best evidence attainable, even though that leads only to conjecture. But the widow, plaintiff, is living and is entitled now to compensation for what she has lost by her husband’s death. To complicate the question by another conjecture as to her expectation of survivorship, would add further uncertainty in the result without being so clearly demanded by reason or justice as to be imperative or even advisable. , ,

Appellant cites Baltimore, etc,, Turnpike Road v. State, 71 Md. 573, which seems to give the approval of a court of very high authority to this contention. It appears however that under the Maryland code, action in such cases is brought by the state to the use of the widow and infant children, and the jury are to give “ such damages as they may think proportioned to the injury resulting from such death to the parties respectively.” It is not clear that this means more than that the jury instead of giving a lump sum to all, shall apportion their verdict among the various parties plaintiff. If such be the meaning, the inquiry as to the widow’s expectation of life would be relevant and material. But under our statute, the widow without regard to her age or expectation of life, takes such proportion of the damages as she would have taken in her husband’s personal estate in case of intestacy. Hers is a present right regardless of age. Whatever however may be the extent of the decision in the case cited, we do not think it should prevail against the general trend of the authorities, and especially the significant silence of our own cases in such a prolific field of litigation as deaths from negligence.

Judgment affirmed.


author: Per Curiam,

text:
    Adams’s Estate.

      Will—Vested and contingent remainders.

    Testator gave a portion of Ms estate to trustees in trust for a son G. for life "and after Ms death remainder to go and be equally divided among all the children of my said son G. then living, and the issue of any of them then dead, yet so however that the issue of any such deceased child shall take if but one solely, and if more than one then equally among them such part and share only as Ms or their deceased parent would have taken if living." But if my said son shall die leaving no child or children, nor issue of any such him surviving, then the part or share of my residuary estate that under the above devise would have gone to his descendants, shall go and be equally divided between my daughter M. and my son T.” Held, that the period of vesting was fixed as of the death of G., the life tenant, and that no estate vested in a granddaughter of G. who died before the grandfather.
    Argued Jan. 11, 1904.
    Appeal, No. 204, Jan. T., 1903, by Amanda McClintock, Administratrix of Sallie B. Adams, deceased, from decree of O. C. Phila. Co., Jan. T., 1901, No. 217, dismissing exceptions to adjudication, in the estate of Thomas Adams, deceased.
    Before Mitchell, O. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Exceptions to adjudication.
    Ashman, J., filed the following opinion :
    The testator, who died in 1867, created a testamentary trust in favor of his son, George B. Adams, to pay him the income for life, and on his death, “ remainder to go and be equally divided among all the children of my said son, George, then living, and the issue of any then dead, yet so, however, that the issue of any such deceased child shall take, if but one solely, and if more than one, then equally among them. But if my said son, George, shall die, leaving no child or children, nor the issue of any such surviving, then the part or share of my residuary estate that under the above devise would have gone to his descendants, shall go and be equally divided between my daughter, Mary, and son, Thomas.”
    George B. Adams, the life tenant, died February 15, 1903, leaving three sons surviving. Another son, Thomas B., died October 15, 1875, leaving two children, Sarah B. and Charles P., Jr. Sarah B. died February 18, 1901, without issue. Charles P., Jr., survives.
    Was the period of vesting fixed as of the’ death of the testator or that of the life tenant ? The answer depends upon whether the direction to divide among the children of the life tenant living at his death describes the class who shall-take, or simply fixes the time at which the gift shall be paid. If it is descriptive of the class, then the children or other issue who died before the life tenant must be excluded, because that is the date at which the estate so created by the testator first comes into being. Its badge of membership designed by the testator can be given only to the persons who are living at that time ; and where the persons to wear it are uncertain, as until then they must be, the gift is contingent: Smith on Exec. Int. 281. The intendment of the law in favor of vested over contingent interests will not prevail over a fairly-defined testamentary intention to the contrary. A strong hint of such a contrary intent is found in the limitation over in default of issue of the son. On the theory that the remainder vested at testator’s death, that limitation was already defeated, because at his death and even at the time of the writing of the will issue of the son was already in being. Another hint to the same effect, and which in many cases has been held, of itself, to import a contingency, is the absence of distinct words of gift to those who are to take the remainder — the bequest being implied only from the simple direction to divide. The distinction is subtle, but it has heen recognized in the numerous cases which hold that a gift is contingent' which rests in a mere direction to pay. These points were discussed and determined in Reiff’s Appeal, 124 Pa. 145. With the single exception that a trust was created, the provisions of the will in that case were in terms almost identical with those of the will before us; there were the same direction to pay at the death of the life tenant “ to her children who may then be living, or the issue of such as may be dead,” and the same limitation in default of leaving child or issue to testator’s surviving children.
    In Reichard’s Appeal, T16 Pa. 232, in a similar trust to pay the income to a daughter for life, and at her death to pay the income to her child or children who should be living at her death, and to the issue of any deceased child until their majority, and then to pay them the principal, it was held that the interest of the daughter’s children was contingent upon their survival of the mother. The case is even stronger, because there was no limitation over to other children of testator in default of issue of the daughter.
    • Carstensen’s Estate, 196 Pa. 325, which was strongly urged as an authority in favor of vesting, does not disturb the view which we have taken. Following the gift in trust for the husband for life, the will proceeded: “ I give, devise and bequeath the whole estate then remaining to my brothers and sisters; the child or children of any of my said brothers or sisters who may then be living to take and receive the share that his or their parent would have taken if living.” The gift to the brothers and sisters was in absolute terms, with no condition that they should be living at the death of the husband, the tenant for life; and there was simply an alternative limitation, that if a brother or sister should be then dead, but leaving issue, his issue should be substituted to his interest.
    The distinction between that case and the present is broad. It was an absolute gift in express terms to a class generally, with no restriction that its members should be living at a given time; whereas, in the present case, there are no words of gift except as implied in the direction to pay, and the designated class is “the children then living;” and there is the further limitation, which did not appear in Oarstensen’s Estate, supra, that if the life tenant should die without leaving issue, his share should go to certain of the testator’s children.
    We are of opinion that the share in question was properly awarded to Charles P. Adams, Jr., the surviving grandchild. The exceptions are, therefore, dismissed, and the adjudication is confirmed.

      Errors assigned were in dismissing exceptions to adjudication.

      Paul O. llamlin, with him Horace P. Green and V Gil-pin Robinson, for appellant,
    cited: Wildman’s Trusts, 1 Johnson & Hemming, 299; Jameson v. Jameson, 86 Va. 51 (9 S. E. Repr. 51); Martin v. Holgate, L. R. 1 Eng. & Irish App. 175; Austin v. Bristol, 40 Conn. 120; Orton’s Trust, L. R. 3 Eq. Cas. 375.

      W. B. Broomall, for appellee, was not heard.
    April 11, 1904 :
   Per Curiam,

The decree is affirmed on the opinion of the court below.


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    McQuale v. North American Smelting Company, Appellant.

      Landlord and tenant — Sale of property — Conversion—Replevin.
    Where a tenant of a building after the termination of his lease is permitted by subsequent tenants and the owner to continue to keep in the cellar of the building metal plates and to retain the key of the cellar, and the plates are sold by an employee of the owner, the purchaser is liable to the tenant although he had no knowledge of the wrongful conversion.
    Argued Jan. 11, 1904.
    Appeal, No. 278, Jan. T., 1908, by defendant, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1902, No. 2292, on verdict for plaintiff in case of Elizabeth McQuale v. North American Smelting Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Replevin for metal piales. Before Davis, J.
    . At the trial it appeared that plaintiffs had been tenants of the property 912 and 914 Race street, Philadelphia. They discontinued their tenancy in 1897, but continued to keep stored in the cellar certain metal plates. They retained the keys of the cellar, and no objection was made either by the owner or subsequent tenants. In 1903 one Schleich, a workman of the owner, in cleaning out the cellar removed the plates and sold them to one Loftus, who in turn sold them to defendant. Neither Loftus nor the defendant knew of the unlawful conversion by Schleich. The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff. '

      Howard A. Davis, for appellant.

      Ed,ward W. Kuhlemeier, for appellee.
    April 11, 1904:
   Per Curiam,

The property admittedly belonged to the plaintiffs when they placed it in the cellar, and they have done nothing since to divest the title. It is true they left it on the premises after their lease had expired and they had given up possession, but abandonment cannot be inferred because they retained the key of the cellar and the control of the property, with the knowledge, and it must be assumed with the consent, of the lessor. The question of good faith in the purchasers does not arise. They bought whát their vendor had no right to sell, and however innocent they got no title as against the real owners.

Judgment affirmed.


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    Powel’s Assigned Estate.

      Auditors — Auditor’s findings of fact — Assignment for creditors.

    An auditor’s findings of fact relating to compensation of an assignee for the benefit of creditors, based upon sufficient evidence, and confirmed by the court below, will not be disturbed by the appellate court, without convincing evidence of error.
    Argued, Jan. 11, 1904.
    Appeal, No. 152, Jan. T., 1903, by the Importers’ and Traders’ National Bank of New. York, from order of C. P. No. 3, Phila. Co., June T., 1887, No. 796, dismissing exceptions to auditor’s report in In re Assigned Estate of Robert Hare Powel & Company and Robert Hare Powel’s Sons & Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Exceptions to report of Hampton L. Carson, Esq., auditor.
    The opinion of the Supreme Court states the case.

      Error assigned was in dismissing exceptions to auditor’s report.

      James W. M. JJewlin, for appellants.

      Frank P. Prichard, with him John Gf. Johnson, for appellee.
    April 11, 1904 :
   Per Curiam,

The whole subject of the prolonged litigation, of which this is the latest outcrop, was carefully considered, discussed and disposed of by this court in Powel’s Assigned Estate, 163 Pa. 349. The only point left open by that adjudication was the disputed compensation of the assignee. This has since been taken up by the auditor and disposed of. It is admitted that vouchers were presented for the credits claimed, and no evidence has been shown to us from which any inference can be drawn that the vouchers did not set forth fully the services rendered, or that the auditor was in error in any of his findings. After they have been fully considered and sustained by the court below they would not be disturbed here without convincing evidence of error.

The prolonged and acrimonious litigation has led to antagonism between counsel, but we find nothing in the record which calls for our interposition. The appellant’s motion to suppress appellee’s paper-book is therefore dismissed, and the decree of the court below is affirmed at the costs of the appellant.


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    Erie & Pittsburg Railroad Company, Appellant, v. Pennsylvania Railroad Company.

      Railroads — Leases—Payment of taxes — Tax on capital stock — Corporations —Taxation.

    A covenant on the part of the lessee in a railroad lease “to pay all taxes now or hereafter imposed by law upon the property hereby demised and the earnings from or business thereof,” will not be construed to cover the shares of the capital stock of the lessor or the property or franchises upon which the valuation of such shares was made after the lease, for purposes of taxation; and this is particularly so where the parties, for thirty years, have ac^ed on a contrary construction.
    Argued Jan. 12, 1904.
    Appeal, No. 246, Jan. T., 1903, by plaintiff, from judgment of C. P. No, 2, Philadelphia County, June T., 1901, on verdict for defendant in case of Erie & Pittsburg Railroad Company v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Assumpsit to recover taxes paid. Before Sulzberger, P. J.

      The court, gave binding instructions for defendant.
    Verdict and judgment for defendant.
    On a rule for a new trial Wiltbank, J., filed tbe following opinion:
    We think the direction in the case was correct. The plaintiff sought to recover from the defendant moneys by way of reimbursement for an outlay from time to time made in payment of taxes to the commonwealth upon its capital stock. Its demand was founded upon the defendant’s covenant as follows: “ To pay all taxes now or hereafter imposed by law upon the property hereby demised and the earnings from or business thereof.” This covenant does not cover tbe shares of the capital stock of the plaintiff or tbe property and franchises upon which tbe valuation of such shares is now made for purposes of taxation. The property passing to the defendant under tbe lease is clearly identified thereby and it is not denied that upon this property, so far as it has been taxable, the defendant has met all obligations. It is true that the taxation of tbe capital stock of the corporation is the taxation of its property and assets : Fox’s Appeal, 112 Pa. 837; Fidelity Ins., etc., Co. v. Louglilin, 139 Pa. 612; Commonwealth v. Standard Oil Co., 101 Pa. 119; Commonwealth v. Pullman Co., 107 Pa. 156, but it is a confusion of terms to regard the property and assets of the plaintiff after the execution and delivery of the lease as the same as its property and assets theretofore existing. The operation of the lease was to substitute as property and assets of the Erie and Pittsburg Railroad Company a fixed return in rentals and a reversion for the real and personal property and the franchises described in the demise. The market values of the shares of stock must, therefore, depend upon an estimate of the commercial value of what remains in tire corporation. Tbe ascertainment of this market value may be thought to be more easy as a result of the conveyance to the defendant. The plaintiff is no longer conducting a business, and the element of liability is excluded from the calculation of the value of the shares. Nor is the plaintiff now at the risk of loss resulting from variations in trade, which risk is assumed by the defendant in consideration of an anticipated profit over the fixed rental which it covenants to pay. This fixed return per annum taken together with the reversion and such franchises as remain in the plaintiff, comprises the property and assets which under the decisions must be the basis of the taxation of the shares of capital stock. The rule for a new trial is discharged.

      Error assigned was in giving binding instructions for defendant.

      J. Percy Keating and Frank Gunnison, with them Richard C. Pale, for appellant.
    The capital stock tax is a direct tax “ imposfed by law” upon the invested capital or “property hereby demised,” consisting of the specific real and personal property and franchises of the corporation: Com. v. Penna. Ins. Co., 13 Pa. 165; Lehigh Crane Iron Co. v. Com., 55 Pa. 448; Phœnix Iron Co. v. Com., 59 Pa. 104; Com. v. Standard Oil Co., 101 Pa. 119; Com. v. Westinghouse Mfg. Co., 151 Pa. 265; Fox’s App., 112 Pa. 337; Fidelity Ins., etc., Co. v. Loughlin, 139 Pa. 612; Com. v. N. Y. Pa. & O. R. R. Co., 188 Pa. 169; Com. v. Lake Shore & Michigan Southern R. R. Co., 3 Dauph. County Rep. 172; Com. v. Central D. & P. Telegraph Co., 145 Pa. 121; Com. v. Manor Gas Coal Co., 2 Dauphin County Rep. 121; Com. v. Penna. Co., 145 Pa. 266.
    In the case of a transportation company, the capital stock tax is the only tax “ imposed by law ” on all the personal property composing the invested capital (including locomotives, cars, etc.), and on the franchises considered as property, and on all the real estate, including roadbeds, viaducts, machine shops, etc., excepting only such real estate as is not indispensable to the public work of the corporation, which latter is, in addition to the stock tax, subject to local taxes as well: Lehigh Coal & Navigation Co. v. Northampton Co., 8 W. & S. 334; R. R. Co. v. Berks Co., 6 Pa. 70; N. Y. & E. R. R. Co. v. Sabin, 26 Pa. 242; West Chester Gas Co. v. Chester Co., 30 Pa. 232; Coatesville Gas Co. v. Chester Co., 97 Pa. 476.
    The mere' leasing of the property and franchises of the corporation does not affect the relation of the state to this property, real and personal, and the franchises, so as to relieve them as the property of the lessor from the burden of the tax, and substitute the fixed rental any more than would the placing of an incumbrance thereon. And therefore the capital stock tax remains as before the lease a tax “ imposed by law ” upon the property and franchises specifically enumerated in the lease and referred to in the covenant as being “ hereby demised: ” Com. v. N. Y. Pa. & O. R. R. Co., 188 Pa. 169.
    Being thus the only tax on almost the entire property “hereby demised ” a covenant by the lessee to pay all taxes “ imposed by law on the property hereby demised,” must necessarily cover the stock tax; and no extraneous circumstances, whether they be lapse of time before demand, or even erroneous construction by the parties to the contract, are admissible in evidence to effect a contrary interpretation to that disclosed by an inspection of the instrument of lease itself: Eldrige v. Knott, 1 Cowper, 214; Earl of Pomfret v. Lord Windsor, 2 Ves. 472; Ahrens v. Gas Co., 188 Pa. 249; St. Mary’s Church v. Miles, 1 Wharton, 229; Stub v. Stub, 3 Pa. 251; Garard v. Monongahela College, 114 Pa. 337; Alexander’s App., 20 W. N. C. 283.

      John G-. Johnson, for appellee.
    The tax upon capital stock, paid by the appellant, was not a tax upon property demised to the appellee: Com. v. N. Y., etc., R. R. Co., 188 Pa. 169.
    The interpretation of their contract, made cotemporaneously by both the parties, and acquiesced in for thirty years, is binding and conclusive: Penna. Co. v. Erie & Pittsburg R. R. Co., 108 Pa. 621; New York Tartar Co. v. French, 154 Pa. 273; Colder v. Weaver, 7 Watts, 466; Pratt v. Campbell, 24 Pa. 184; People’s Nat. Gas Co. v. Braddock Wire Co., 155 Pa. 22; Gass’s App., 73 Pa. 39.
    April 11, 1904:
   Per Curiam,

The lease sued on did not stipulate for the payment by the lessee of all taxes imposed on the lessor company but of all taxes on the property demised, and was so understood and acted on by the parties for thirty years. The difference is well stated by the learned judge below in his opinion refusing a new trial, and the judgment is affirmed on that opinion.


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    Rockhill’s Estate.

      Wills — Issue devisavit vel non — Testamentary capacity — Undue influence— Probate — Evidence.
    On an application for an issue devisavit vel non, it appeared that twenty years before the making of the will in contest, testatrix made a will leaving her estate to her husband, and in case of his death, to his son by a former wife, with a devise over to a church. Subsequently the husband and son died. Testatrix had a long standing indifference, if not dislike to the contestants, who were not very close relatives. In making her second will she made the beneficiary the physician who attended her husband in his last illness, and to whom she expressed herself as indebted for personal kindness as well as professional skill. The testimony showed that the mind, memory and understanding of the testatrix at the time of the execution of her last will and down to the very day of her death, were absolutely unimpaired, and that she was a woman of strong will, and unusual intellect. There was no evidence of undue influence, or abuse of confidential relations. Held, that the court below properly refused an issue.
    Argued Jan. 13, 1904.
    Appeal, No. 113, Jan. T., 1904, by Charles H. Quigley, from decree of O. C. Phila. Co., Jan. T., 1898, No. 169, refusing an issue devisavit vel non in estate of Emma E. T. Rockhill, deceased.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Appeal from register of wills.
    The opinion of the Supreme Court states the case.

      Error assigned was in refusing an issue devisavit vel non.

      Henry B. Hodge and John Gf. Johnson, with them Greorge Q-. Mercer, for appellant.

      R. L. Ashhurst, for appellees.
    April 11, 1904 :
   Per Curiam,

As it is entirely clear that no verdict against the will could be sustained the court was right in refusing an issue. The facts as they appear convincingly on the whole evidence are that a woman of middle age, left suddenly a widow, without children, with no very close relatives and a long standing indifference if not dislike to those she had, looked about for a legatee not one whom the law would appoint. This purpose was not a new or sudden whim. Twenty years earlier she had made a will leaving her estate to her husband, and in case of his death to his son by a former wife, with a devise over in favor of St. Paul’s Church in Baltimore, thus entirely barring her relatives who are now contesting her subsequent will. Both her husband and herself were invalids, and for some years had lived abroad. She selected as the recipient of the bounty which she intended to keep from her relatives, the physician who attended her husband in his last illness and to whom she expressed herself as indebted for personal kindness as well as professional skill.

It was found by the court below that “ there was no evidence whatever in support of the averment of want of testamentary capacity ; on the contrary, the testimony of the witnesses for the appellant, as well as of the proponents, showed, beyond all question, that the mind, memory and understanding of the decedent, at the time of the execution of these papers and down to the very day of her death, were absolutely unimpaired ; and that she was a woman of strong will and unusual intellect.” It would therefore have required strong evidence to justify the submission of the case to the jury on the question of undue influence. or abuse of confidential relations. But there was no such evidence, and the circumstances of the making of the will rebut any such suggestion.

Decree affirmed at the costs of the appellants.


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    Bradley, Appellant, v. Gaghan.

      Mechanic’s lien — Sidewalks—Different blocks — Evidence—Arbitration— Referee’s findings of fact.

    On an amicable scire facias sur mechanic's lien a referee found that the several liens were upon three different blocks of houses separated by public streets; that the only item of the materials for which the liens were filed, furnished within the six months was furnished indiscriminately to the three blocks, or if to any one of them separately, it was not shown which; that the said item consisted of cement, which was used partly or wholly in the construction of sidewalks, and that the claims were not sufficiently proved. The referee’s report finding against the liens was confirmed by the court below. Held, that the judgment should be affirmed.
    Argued Jan. 14, 1904.
    Appeals, Nos. 165, 166 and 167, Jan. T., 1903, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1899, Nos. 99, 100 and 101, M. L. D., overruling exceptions to report of referee in case of W. T. Bradley Co. v. Wm. Gaghan, Owner, and Florey & Bevan, Contractors.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Amicable scire facias sur mechanics’ liens.
    Exceptions to report of William H. Staake, Esq., referee.
    The referee reported, inter alia, as follows : .
    1. There can be in the opinion of the referee no lien for materials furnished for sidewalks (Clymer Paving Co. v. Donegan, 36 W. N. C. 261), and if that be the true view of the law the claimant’s case fails entirely. The material furnished by the claimant was partly furnished for and partly used for sidewalks, and as claimant has failed to show what portion went for sidewalks and what portion for other purposes, it is impossible to determine what portion of its claim would, upon this ground, be bad and what would be good. It is clear that a claim which is good only in part must be held wholly bad, if the part which is valid cannot be or is not determined.
    2. No lien for materials furnished can endure longer than six months after the time at which the last materials were furnished to the property against which the lien is claimed, unless a claim be filed within the six months.
    Here the claimant puts forward three separate and distinct liens, each against a different block of houses. He can maintain his lien on any block to which he furnished materials within six months before December 22, 1899. But only one delivery, of twenty-six barrels of cement, was made within that time. That delivery would doubtless preserve the lien against the property to which it was made, or cement included in it may even have gone into all the houses, but the plaintiff has offered no evidence upon the matter. The lien would be preserved only as to the particular house or houses to which that material went, and not- as to the entire property- embraced in the contract: Wilson v. Forder, 30 Pa. 129 ; Shannon v. Broadbent, 162 Pa. 194.
    As there has been no proof that the material delivered on June 27, 1899, went to any particular house, there has been no proof that material was furnished to any particular houses within the legal period, and the claim of the plaintiff cannot be supported as to any portion of the property in dispute, any more than to the entire property.
    3. The referee is unable to concur in the argument of - counsel for the claimant, that the letter of September-14, 1899, operates to estop the defendants to deny that the claimant might file claims against the entire property at any time until-December 27, 1899. Granting, even, that all the elements ordinarily necessary to raise an estoppel were present, the referee is of opinion that there should be no estoppel here, for the reason that estoppel is distinctly personal, and can bind only those-persons who are privy to the - act relied upon to raise it. In this case, the attempt is not to charge any person or persons, but the land itself, and the referee holds it clear that no representations of the defendants, however binding upon themselves, should be allowed to have such an effect. Estoppel, by its very nature, is inapplicable in cases in which- property, no.t the person, is to be charged.
    4. Apart from the question of .time, the referee- considers that the claimant has failed to prove his case, in that he does not show that material to the amount claimed against any one block was in fact delivered to that, block. .
    The various blocks, separated by public streets, are quite distinct in law, and it is not permissible for the claimant to apportion among a number of blocks-the amount of his charge against a whole operation, for the charge against each block must be in exact accord with the material furnished to it. Among several lots, parts of one block, a claimant may apportion, without having made his deliveries separately to each lot. But the law has gone no further in allowing apportionment, and between separate blocks no apportionment can be good except that which is made in fact at the time of delivery.
    Gordon v. Norton, 186 Pa. 168, does not, in the judgment of the referee, warrant the claimant in making “each claim -in-elude all the materials furnished,” and in concluding that “therefore it is clear that each claim includes all the materials furnished for and used in the set of houses against which the specified claim is filed (and some other materials).”
    If, as in Gordon v. Norton, supra, “there are blocks of buildings so different in size, style, material, location or time of erection, that the material going into their construction can readily be distinguished and ascertained,” “ then the lien claimant may, if he chooses, file a separate claim against each block, apportioned among its constituent houses,” the claim against each block must be for “ its own sum total, distributed pro rata within the block.” That is, the claimant must “ distinguish and ascertain ” the material going into the construction of each block, by measurement or some other certain means, of the use of which there is no other evidence in the claims presented to the referee.
    “ The rule as to an intervening street is now firmly settled: ” Schultz v. Asay, 10 W. N. C. 33, 11 W. N. C. 194; Lucas v. Hunter, 153 Pa. 293, cited by Mr. Justice Mitchell in Gordon v. Norton, and the adjoining is severed by an intermediate street. If the claimant can readily know to which block “ the several items of his demand were furnished ” his claim should be based upon such ready knowledge and be filed accordingly. The referee repeats that the claimant has failed to prové his case, in that he does not show that material to the amount claimed against any one block was in fact delivered to that block. It will not answer the requirements of the law to charge the entire bill against each part of the whole operation, and thus conclude that “ the claimant has included, in each case, all the material that went into that part of the operation.”’ See also Lucas v. Hunter, 153 Pa. 293.
    5. The referee considers it clear that the burden of proof in the matters treated in the first, second and third conclusions is upon the claimant. The ordinary rule of procedure, that á plaintiff mu¡?t make good his own case, applies in actions- of this class, from a necessity growing out of the very nature of a mechanic’s lien.
    In a merely personal action, if the rule be relaxed on the ground that the evidence is in the possession df the defendants, or for any other reason, no harm can be done, for the defendant only is damnified.

      But here, where the land is sought to be charged, the defense is made in a sense in a representative capacity.
    To relieve a plaintiff of the burden of proof, therefore, and impose it upon a defendant might, through that defendant’s fault, injuriously affect the interests of other parties in a way impossible in the ordinary personal action.
    The burden in cases of this kind should, therefore, be upon the claimant to prove all the facts necessary to make good his lien against any or all of the properties against which he had sought to enforce it.
    The referee entered a verdict in favor of the defendants in each of the three cases, with costs to the defendants in each case.

      Errors assigned were in dismissing various exceptions to report of referee.

      J. II. G-endell, for appellant.
    The use of some cement in the sidewalks is no answer to our claim: Clymer Paving Co. v. Weir, 34 W. N. C. 19; Webster v. Wakeling, 2 W. N. C. 111; Yearsley v. Flanigen, 22 Pa. 489; Gaule v. Bilyeau, 25 Pa. 521; Short v. Miller, 120 Pa. 470; Presb. Church v. Allison, 10 Pa. 413; White v. Miller, 18 Pa. 52; Odd Fellows’ Hall v. Masser, 24 Pa. 507; Singerly v. Doerr, 62 Pa. 9; Linden Steel Co. v. Rough Run Mfg. Co., 158 Pa. 238.
    The division of the lot by public streets does not invalidate the claims, especially in the form here used : Davis v. Farr, 13 Pa. 167; Harper v. Keely, 17 Pa. 234; Millett v. Allen, 3 W. N. C. 374; Livezy v. Garvin, 16 W. N. C. 439; Pennock v. Hoover, 5 Rawle, 291.
    The claims were filed in time ; we are not required to trace the twenty-six barrels last delivered: Shannon v. Broadbent, 162 Pa. 194; Wilson v. Forder, 30 Pa. 129.

      Ira J. Williams, with him Simpson Brown, for appellee.—
    The liens were improperly and illegally filed : Gordon v. Norton, 186 Pa. 168; Schultz v. Asay, 10 W. N. C. 33; Lucas v. Hunter, 153 Pa. 293.
    The liens were not filed in time : Philadelphia v. Beatty, 9 Pa. Superior Ct. 255.

      No lien can be filed for material used in sidewalks : Clymer Paving Co. v. Donegan, 36 W. N. C. 261.
    April 11, 1904:
   Per Curiam,

The learned referee below found, as facts, first, that these' liens are upon different blocks of houses, separated by public streets; second, that the only item of the materials for which the liens are filed, furnished within six months, was furnished indiscriminately to the three blocks, or if to any one of them separately, it was not shown which; third, that the said item consisted of cement which was used partly or wholly in the construction of sidewalks ; and fourth that the claims were not sufficiently proved. On these facts the judgment was right, and it is affirmed on the referee’s conclusions of law.

Judgment affirmed.