text:
    Bessemer Coke Company, Appellant, v. Gleason.

      Principal and surety — Building contract — Overpayments.
    1. The surety upon a contractor’s bond is entitled to stand upon the terms of the contract, precisely as they were when he agreed to become responsible for its performance.
    2. An essential part of a building contract required that fifteen per cent of the amount due thereon should be retained until final settlement. Where the obligee, in disregard of this requirement, overpaid the principal, he cannot recover the amount of such overpayment from the surety upon the bond.
    Argued Oct. 20, 1908.
    Appeal, No. 57, Oct. T., 1908, by plaintiff, from order of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 90, refusing to take off nonsuit in case of Bessemer Coke Company v. Fred S. Gleason, Sr.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a bond of suretyship. Before Swearingen, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in refusing to take off compulsory non-suit.

      Wm. A. Griffith, with him David E. Mitchell, for appellant,
    cited: Roth v. Miller, 15 S. & R. 100.

      J. McF. Carpenter, with him Geo. N. Chalfant, for appellee,
    cited: Fitzpatrick v. McAndrews, 2 Pa. Dist. Rep. 713.
    January 4, 1909:
   Opinion by

Mr. Justice Potter,

This suit was brought to enforce the liability of the defendant as surety upon a bond given to secure the performance of a contract by the Bessemer Contracting and Ballast Company. It appears that the plaintiff on July 9,1906, entered into a written contract with the said ballast company for the erection of 100 coke ovens. On October 16 of the same year, another contract was made in respect to the same work in which it was stipulated that the first agreement should be canceled upon the understanding that under the new contract the Bessemer Contracting and Ballast Company should furnish bond in the sum of $2,500 to secure any back payments due for work done or supplies contracted for on the old contract, etc. And that all payments for work done on the old and new contracts were to be paid to the men in the employ of the ballast company, by the plaintiff, the coke company, on the order of the ballast company, and charged to its account. The contract also provided for monthly estimates in accordance with which the contractor was to be paid, less fifteen per cent, which was to be retained until final settlement. Pursuant to the agreement, the bond was given with the defendant as surety. It was conditioned upon the faithful performance of the contract by the ballast company, and for the payment of all bills for labor and materials, and for the protection of the coke company from all claims and liens on account thereof. The contract contained a forfeiture clause authorizing the engineer in charge of the work to terminate the contract on twenty-four hours’ notice, if in his judgment the work was not being satisfactorily pushed. Under this clause, the plaintiff canceled the contract on November 8. It alleged that it had at that time paid out for labor and supplies the sum of $2,655.32 in excess of the amount due to the contracting company for its work, and brought suit upon the bond to recover the amount so overpaid. But as the trial judge says, there is no provision in the bond which requires the surety to refund to the plaintiff any amounts which it may have overpaid on account of the contractor, up to the date of the cancellation of the contract. There is no evidence of anything being due on back payments to anyone, or that any liens have been filed, or that any other liability exists for which the surety is responsible. No provision appears in the contract permitting overpayments to be made, and on the contrary there is an express provision that fifteen per cent should be retained until final settlement. What the situation would have been, had the contract not been taken away from the ballast company, and had it been permitted to finish the operation, does not appear. But when the contract was terminated by the plaintiff it did appear that it had made payments faster than it should have done under the terms of the contract. The surety had the right to rely strictly upon those terms. Beyond them the plaintiff could not go, to the detriment of the surety. This action is not brought to recover the amount paid out for the completion of the contract by the plaintiff, for it does not appear that the contract was ever completed. The only claim made is to recover for overpayments made to or on account of the contracting company. As has been said, no provision in the bond requires the surety to make good any such advance. The surety was entitled to stand upon the terms of the contract precisely as they were when he agreed to become responsible for its performance. An essential fact of the agreement was that fifteen per cent of the estimates should be retained by plaintiff. If it had complied with the agreement in this respect, and made payments only as called for, and if its adherence to the agreement had resulted in the inability of the contractor to carry out the contract, then, as a matter of course, the surety would have been liable for any failure in performance. But it will not do for the plaintiff to say that it paid out money in a way or to an extent not authorized in the contract, but which nevertheless went in relief of the possible obligations of the surety, and for that reason claim the right to recover. It should have confined its actions strictly to the limitations fixed in the contract, if it expected to look to the surety, under the obligations of the bond.

We agree with the court below that no grounds upon which, the plaintiff could recover, were shown upon the trial. The compulsory nonsuit was properly entered, and we see no error in the refusal to take it off.

The judgment is affirmed.


source: Caselaw Access Project

author: Me. Justice Mestrezat,

license: Public Domain

text:
    Sulzner, Appellant, v. Cappeau, Lemley & Miller Company.

      Practice, C. P. — Rule for judgment — Affidavit of defense — Failure to file opinion.

    1. On a rule for judgment for want of a sufficient affidavit of defense, where the questions raised will require the construction of an act of assembly and of one of the court’s own rules, it is proper for the court in disposing of the case to file an opinion setting forth, at least briefly, the reason for its conclusion.

      Practice, C. P. — Affidavit of defense — Supplemental affidavit of defense— Rules of court.

      2. Where a rule of court prohibits the filing of a supplemental affidavit of defense after a rule for judgment is called for argument “ unless for special cause shown,” and the court permits a supplemental affidavit to be filed, the appellate court in the absence of anything disclosing the contrary, will assume that sufficient cause was shown the court below to warrant its action.

      Practice, C. P. — Replevin—Stock certificate.

    3. In an action of replevin against a corporation and two individuals, to recover a certificate of stock for 2,500 shares, an affidavit of defense is sufficient which avers that at a time after the corporation defendant had received the certificate in question from the plaintiff, the latter sold to the two individual defendants certain shares of stock of the same company, and that it was agreed by all parties that the defendant corporation should hold the certificate and have it divided into smaller certificates, so as to give the individual defendants 500 shares which were due them and which they had paid for, and that this division of the certificate had been prevented by the action of the plaintiff in notifying the company issuing the shares not to make the transfer.
    Argued Oct. 20, 1908.
    Appeal, No. 76, Oct. T., 1908, by plaintiff, from order of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 220, discharging rule for judgment for want'of a sufficient affidavit of defense in case of Joseph F. Sulzner v. Cappeau, Lemley & Miller Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Replevin. Before Swearingen, J.

      Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Supreme Court states the case.

      Error assigned was the order of the court.

      Harvey, A. Miller, for appellant.
    — Defendants, under the rules of court of Allegheny county, have no right to amend or supplement their affidavit after argument: Yaryan Co. v. Penna. Glue Co., Ltd., 180 Pa. 480.
    Where there is no rule of court on the right to file a supplemental affidavit of defense, it is in the discretion of the court: Lash v. Von Neida, 109 Pa. 207; Fleisher v. Blackburn, 15 Pa. Superior Ct. 289; Port Kennedy Slag Works v. Wm. Krause & Sons, 5 Pa. Superior Ct. 622; Callan v. Lukens, 89 Pa. 134.
    The affidavit of defense is insufficient: Erie City to use v. Butler, 120 Pa. 374; Swope v. Crawford, 16 Pa. Superior Ct. 474; Green & Sons v. Bauer, 15 Pa. Superior Ct. 372; Rockey v. Burkhalter, 68 Pa. 221; Schofield v. Ferrers, 46 Pa. 438; Catasauqua Bank v. North, 160 Pa. 303; Conlin v. Butler, 10 Kulp, 273; Shoemaker v, Shoemaker, 7 Kulp, 528; Fox v. Magaw, 12 Pa. Dist. Rep. 53.

      Oscar T. Taylor, for appellees.
    — The statute controlling procedure in an action of replevin specifically recognizes the power of the court to grant leave to defendants to amend an affidavit of defense: Lash v. Von Neida, 109 Pa. 207; Wall v. Royal Society of Good Fellows, 179 Pa. 355; Hellings v. Wright, 14 Pa. 373; Kellett v. Freeman, 19 Pa. Superior Ct. 155; Damm v. Ortlieb, 1 W. N. C. 576; Fleisher v. Blackburn, 15 Pa. Superior Ct. 289; Andrews v. Blue Ridge Packing Co., 206 Pa. 370; Callan v. Lukens, 89 Pa. 134.
    The construction of their rules by the lower courts is ordinarily conclusive; their discretion will be interfered with only where wrong is manifest: Gannon v. Fritz, 79 Pa. 303; Carpet Co. v. Latimer, 165 Pa. 617; Livingston v. Kerbaugh, 30 Pa. Superior Ct. 534; Yaryan Co. v. Penna. Glue Co., 180 Pa. 480.
    For the purposes of this appeal the court will assume the truth of the facts set forth in the affidavits of defense: Noble v. Kreuzkamp, 111 Pa. 68; Kaufman v. Cooper Iron Mining Co., 105 Pa. 537.
    The affidavit of defense was sufficient: Brown v. Gourley, 214 Pa. 154; Rose v. Ind’t Chevra Kadisho, 215 Pa. 69; Noble v. Kreuzkamp, 111 Pa. 68; Kaufman v. Cooper Iron Mining Co., 105 Pa. 537; Gandy v. Weckerly, 220 Pa. 285; Stern v. Dwyer, 35 Pa. Superior Ct. 132; Marquis v. McKay, 216 Pa. 307; Brewing Co. v. Rosenbluth, 33 Pa. Superior Ct. 303.
    Under the act of 1901, the party having right of possession of the chattel has been uniformly held to have rights superior to those of the owner who does not have the right of immediate possession: Mathias v. Sellers, 86 Pa. 486; Ry. Co. v. Elisey, 85 Pa. 283; Fox v. Magaw, 12 Pa. Dist. Rep. 53; Hartman v. Keown, 101 Pa. 338; Yearsley v. Gray, 140 Pa. 238; Strong, Deemer & Co. v. Dinniny, 175 Pa. 586; Reinheimer v. Hemingway, 35 Pa. 432; Lester v. McDowell, 18 Pa. 91; Fisher v. Whollery, 25 Pa. 197.
    January 4, 1909:
   Opinion by

Me. Justice Mestrezat,

This was a rule for judgment for want of a sufficient affidavit of defense. The court discharged the rule without filing an opinion and the dissatisfaction of the plaintiff in thus summarily disposing of the case is shown in his printed brief wherein it is said: “‘It is further argued that the court below did not sufficiently consider the case in its decision, for though briefs were prepared and submitted to the court covering the entire questions in this case on both the rules to the disposition of which errors had been assigned, yet the court below did not give the case sufficient consideration to write an opinion, but discharged the rule for judgment and made absolute the rule filing the additional defense.” We cannot say that this criticism is unwarranted. The questions raised in the case required a construction of an act of assembly and of one of the court’s own rules, and therefore there was an especial reason in the case why the court should have filed an opinion setting forth at least briefly the reasons for its conclusion. The parties are entitled under the constitution and laws of the commonwealth to have their case heard and properly determined in the common pleas as well as in this court.

This was an action of replevin brought to recover stock certificate No. 313 representing 2,500 shares of the stock of the Gold Bullion Mining & Development Company which the plaintiff alleges belongs to him and is in the possession of the defendant company. An affidavit of defense was filed and subsequently by permission of the court a supplemental affidavit was filed. The defendants took a rule to show cause why they should not be permitted to file a supplemental affidavit of defense, which rule was made absolute. This is the subject of the first assignment of error. The plaintiff took a rule for judgment for want of a sufficient affidavit of defense, which was discharged, and this is the subject of the second assignment of error.

We are not convinced that the court erred in permitting the defendant to file an additional or supplemental affidavit of defense. The sixth section of the Act of April 19, 1901, P. L. 88, permits a defendant to amend his original affidavit or file a supplemental affidavit of defense by leave of court. A like, authority is contained in the rules of the court below. Those rules prohibit the filing of a supplemental affidavit of defense after a rule for judgment is called for argument, “unless for special cause shown.” In the absence of anything disclosing the contrary, we must assume that sufficient cause was shown the court below to warrant it in permitting the defendants to file the supplemental affidavit of defense. The first assignment of error is dismissed.

We must accept the allegations in the affidavit of defense as true. The action, as we have said, is replevin for a stock certificate representing 2,500 shares of stock in the Gold Bullion Mining & Development Company. Fred Volquarts and M. H. Mc-Ilwaine were permitted to intervene and become defendants in the cause. They joined the defendant company in filing the supplemental affidavit of defense. It appears from the affidavit that the defendant company conducts a stock brokerage business, and that it received the certificate of stock in controversy on July 15, 1907, for which a receipt was given. Prior to this date the plaintiff had sold to Volquarts and Mcllwaine 2,000 shares of the stock of the mining and development company, and on July 16, 1907, delivered to the defendant company for the purchasers certificates for 1,500 shares of the stock. In order to make delivery of the remaining 500 shares, the plaintiff surrendered to the defendant company the receipt which it had given him; and it was mutually agreed by the purchasers of the stock and the plaintiff that in lieu of the certificate of stock thus surrendered three new certificates should be issued by the mining and development company, one in the name of the defendant, Volquarts, for 250 shares, one in the name of the defendant, Mcllwaine, for 250 shares, and the third in the name of the plaintiff for 2,000 shares. Volquarts and Mcllwaine then and there paid to the plaintiff the balance due for the 2,000 shares of stock which they had purchased from him.

The affidavit of defense further avers as follows: To insure the reissue of the remaining 500 shares of stock so purchased by the defendants, Volquarts and Mcllwaine, it was agreed by both the plaintiff and the purchasers that certificate No. 313 should be held by the defendant corporation for the protection of both the plaintiff and the two said purchasers, and that it should be taken by the defendant corporation, acting for both the plaintiff and the purchasers, to the office of the mining and development company, and there transferred and reissued in the manner agreed upon, as above recited. At the same time, the plaintiff, having surrendered to the defendant corporation the receipt recited at length in the second paragraph hereof, gave the defendant corporation an option to purchase, and assigned and delivered to the defendant corporation a written order to sell the 2,000 shares so remaining his property.”

The affidavit also avers that the defendant company presented the certificate of stock to the mining and development company and requested the transfer and reissue of the same in three certificates to the plaintiff, Volquarts and Mcllwaine, but alleges that the mining and development company refused to make the transfer because the plaintiff had notified it not to transfer or reissue the certificates. The affidavit avers readiness on the part of the defendant company to deliver to the plaintiff a certificate for 2,000 shares of the mining and development company stock as soon as the plaintiff will permit the transfer and reissue of three certificates in place of the certificate delivered by the plaintiff to the defendant company.

The affidavit of defense sets forth very fully what the defendants allege to be the facts of the case, and we think it is sufficient to prevent judgment and to send the case to a jury. If the averments of the affidavit be true, and we must so regard them, the plaintiff was paid in full by Volquarts and Mcllwaine for the 2,000 shares of stock which they purchased from him. Five hundred shares of that stock were to be delivered to the purchasers from the 2,500 shares represented by certificate No. 313 for which this replevin was issued. By an agreement between the plaintiff and the defendants, certificate No. 313 was to be held by the defendant company not only for the protection of the plaintiff but also for the protection of Volquarts and Mcllwaine who were the owners of 500 shares of the stock represented by that certificate. It was the duty of the defendant company under this agreement to have three certificates issued in place of the one held by it so that each of the three owners of the stock should have a certificate for the number of shares to which he was entitled. This was prevented, as averred in the affidavit, by the conduct of the plaintiff in refusing to permit the reissue of certificates to the parties entitled to the stock. It was a breach of the plaintiff’s agreement which be had entered into with the defendants by which certificate No. 313 was to be surrendered and the three new certificates were to be issued therefor. We will not discuss the case further in view of the fact that it is remanded for trial before a jury-

The assignments of error are overruled and the order of the court below is affirmed.


author: Mr. Justice Stewart,

text:
    Edmundson, Appellant, v. Monongahela Light & Power Company.

      Negligence — Electric light company — Contributory negligence — Nonsuit.
    Where a person desiring to communicate with the superintendent of a light and power company on business, goes, not to the office of the company, but to a transformer room where the superintendent is engaged, and where there is nothing in connection with the room to invite entrance by the public, and the superintendent when addressed tells his caller to wait a minute, and the latter, in order to avoid some workmen, backs without looking, against a piece of machinery and receives an electric shock, he has no standing to recover from the company damages for his injuries.
    Argued Oct. 20, 1908.
    Appeal, No. 81, Oct. T., 1908, by-plaintiff, from order of C. P. No. 1, Allegheny Co., Sept. T., 1902, No. 834, refusing to take off nonsuit in case of Levi H. Edmundson v. Monongahela Light & Power Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Brown, J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was in refusing to take off nonsuit.

      Geo. A. Johnson, with him John F. Edmundson, for appellant,
    cited: Hydraulic Works Co. v. Orr, 83 Pa. 332; Kay v. R. R. Co., 65 Pa. 269.

      David A. Reed, of Reed, Smith, Shaw & Beal, for appellee,
    cited: Gillis v. Penna. R. R. Co., 59 Pa. 129; Gramlich v. Wurst, 86 Pa. 74; Moore v. R. R. Co., 99 Pa. 301; Gillespie v. McGowan, 100 Pa. 144; R. R. Co. v. Schwindling, 101 Pa. 258; Thompson v. B. & O. R. R. Co., 218 Pa. 444; MacLean v. Burnham, 19 W. N. C. 53.

      January 4, 1909:
   Opinion by

Mr. Justice Stewart,

The plaintiff received his injuries by coming in contact with a heavily charged piece of .machinery in the transformer room of the defendant's power plant, where he had gone with a view to purchase some old sheet iron or junk which a day or two previous he had seen stacked somewhere in the yard. He had not learned through any public announcement made by the company, nor through anyone competent to speak for it, that this material was for sale. Inquiring of some workmen whom he saw employed about the place, he was told that if he wanted to do business, he would have to see the superintendent. On the day of the accident, meeting a workman some distance from the premises, he learned from him that the superintendent was then at the plant and he could see him if he went promptly. The company had been making changes in its building and machinery, and at this particular time the wall of the building next to the street and about what had been a door for general entrance, had been taken down for a distance of some twenty-five feet. A considerable part of the room in which plaintiff was injured was thus exposed to the street. Through this opening the plaintiff entered and advanced some five or six feet to where the superintendent was standing, engaged at the time in inspecting a transformer. Addressing the superintendent plaintiff said, “I would like to speak to you.” The superintendent replied, “Wait a minute.” While waiting, one of the men there employed was about to pass between the plaintiff and the superintendent, when the plaintiff, to increase the distance between them, retreated a step or two without looking where he was going, and encountered the machinery from which he received the current that injured him. With these facts shown at the trial and nothing beyond, a nonsuit was directed. The motion to take off the nonsuit was refused and this appeal results.

It is contended by counsel for appellant that the plaintiff in entering the transformer room of defendant, was not an intruder or a mere licensee, but that he entered on invitation of the defendant; and once having entered was invited to remain. Under such conditions as here stated, unquestionably a duty would have rested on the defendant, to exercise reasonable care to avoid injury to the plaintiff while he was on the premises. But does the evidence exhibit any such conditions? The plaintiff does not pretend that he entered the transformer room supposing it was the place where the defendant transacted its business with its patrons or customers. He entered it to see the superintendent who he was told by someone was then there. His case discloses nothing in the situation or surroundings which could have led anyone into the belief that it was the room into which the public were invited for purposes of business or otherwise. Every appearance indicated that it was a workroom and nothing else. If from the fact that the wall was down and the room thereby exposed, an implication of invitation to enter at that place arises, such implication certainly could not extend to others than those whose employment was there. The defendant having done nothing and suffered nothing to indicate to the public that they were free to enter the room, no duty rested on it to anticipate the entry of the plaintiff and make provision for his safety. In going into the room he took the risk of the place, and shared the common danger to which all were exposed by reason of the machinery being as it was. Nothing that was said to him after he entered imposed any higher duty on the defendant with respect to his safety. It does not appear that the superintendent knew who he was, how he came into the room, or for what purpose. The superintendent was at the time engaged in work about a transformer. When plaintiff told him that he wanted to speak to him, the reply he received “Wait a minute” was simply notice that the superintendent could not be interrupted at that moment in his work. Except as the superintendent had reason to believe that the party interrupting him was under some disability, ignorance, or helplessness of some kind, which exposed him to peculiar liability to injury in the place he was, no duty could have rested on him to caution the party with respect to the machinery about him. He had a right to assume, until otherwise informed, that the party was one who had a right to be there, or that being there he was able to take care of himself. To construe the remark of the superintendent into an invitation to remain would require us to hold, if plaintiff was in fact simply an intruder, that the defendant could only escape the duty of looking after his safety by promptly turning him out.

. Apart from this feature of the case the learned trial judge is of the opinion that recovery by the plaintiff was made impossible by reason of his contributory negligence. In a place which any person of ordinary intelligence would understand as dangerous, the plaintiff retreated backward from where he was standing clear of all contact with any of the machinery, without looking where he was going, until he encountered the machine from which he received the electric current. Even if negligence on the part of the defendant had been shown, plaintiff’s contributory negligence was too evident to permit a recovery. The nonsuit was properly ordered.

Judgment affirmed.


text:
    Bain v. Petroleum Iron Works Company, Appellant.

      Negligence — Independent contractor — Evidence—Case for fury.

    In an action against a corporation to recover damages for personal injuries, it appeared that the defendant had a contract to put up a plant for a laundry. The plaintiff, a workman, was injured while helping in this work. The defendant had a written agreement with a contractor by which the entire work was placed in the latter’s hands, on his undertaking, for a stipulated consideration, to furnish all labor and material. The defendant reserved nothing except only the right to alter the specification which was made part of the contract between the defendant company and the laundry company. There was evidence that the defendant paid the wages of the men employed by the contractor, but it was explained that this was done because the contractor was without funds and asked the company to make the payments and charge them to him as advancements. Held, that the question as to whether the work was in charge of an independent contractor was for the jury.
    Argued Oct. 20, 1908.
    Appeal, No. 84, Oct. T., 1908, by defendant, from judgment of C. P. Allegheny Co., Nov. T., 1905, No. 410, on verdict for plaintiff in case of Thomas Bain v. Petroleum Iron Works Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Kennedy, P. J.
    Verdict and judgment for plaintiff for $2,500. Defendant appealed.

      Error assigned was (3) portions of opinion, quoted in the opinion of the Supreme Court.

      John C. Bane, with him B. G. Hughes and H. B. Hughes, for appellant.
    — Robinson was an independent contractor: Painter v. The Mayor, etc., of Pittsburg, 46 Pa. 213; Hunt v. Penna. R. R. Co., 51 Pa. 475; Allen v. Willard, 57 Pa. 374; Chartiers Valley Gas Co. v. Lynch, 118 Pa. 362; Miller v. Merritt, 211 Pa. 127; Erie v. Caulkins, 85 Pa. 247; Eby v. Lebanon County, 166 Pa. 632; Thomas v. Altoona, etc., Electric Ry. Co., 191 Pa. 361; Harrison v. Collins, 86 Pa. 153; Wray v. Evans, 80 Pa. 102; Edmundson v. R. R. Co., 111 Pa. 316; Rourke v. White Moss Colliery Co., L. R. 1 C. P. Div. 556.

      H. Fred Mercer, for appellee.
    — It has been repeatedly held by this court that where the master, or the' principal, reserves the right to control the work in any manner, that the relation of master and servant exists between himself and agent: Rose v. Philadelphia, 31 Legal Int. 165; Trainor v. R. R. Co., 137 Pa. 148.
    January 4, 1909:
   Opinion by

Mr. Justice Stewart,

The plaintiff was injured while helping to put in place several iron water tanks constructed by the defendant company at its work in Washington county for Pfarr’s Select Hand Laundry,. Pittsburg. The evidence in the case, called for a submission to the jury of two questions of fact: first,, was the plaintiff injured in consequence of negligence on the part of his employer? and, second, was the defendant the employer? The first of these questions was submitted in a charge entirely satisfactory to both sides, and the determination of that particular issue does not concern us here. The second question was not submitted at all. The only reference to it in the charge is as follows: “There was some claim made by the defendant that Robinson (the man who, according to plaintiff's witnesses, was in charge of the work) did not represent the defendant in connection with that work. There was an offer made of an independent contract on the part of this man Robinson, but that has been ruled as not being an independent contract. The testimony of the plaintiff and his witnesses would tend to show that Robinson was acting for the plaintiff here; they say that he hired and discharged the men, and that Regan acted as assistant foreman under him, and Robinson was held out as foreman and Regan as assistant foreman. At aiiy rate Robinson seemed to be the only person who was on the premises who did seem to represent the defendant, and the further testimony of the plaintiff is that he was in the employ of the company, and that they paid him for his work. It is said that Mr. Robinson was held out as their foreman.” The defendant denies that Robinson represented them in the erection of the tanks, and insists that he was an independent contractor for that work, under a written article of agreement between the company and Robinson, wherein the latter undertook for a consideration of $350 “to furnish all labor, hauling, lumber, nails, erection equipment and supplies of whatsoever kind, and in a skillful and workmanlike manner erect, calk water tight under tests, paint and entirely complete, ready for use said water tanks and appurtenances in accordance with the specifications and drawings, and instructions or alterations that have been or may later be given by said manufacturer (defendant company) to said contractor (Robinson), subject to inspection, approval and acceptance or rejection by Pfarr’s Hand Laundry and said manufacturer.” By later clause in the contract, Robinson waived all. right to file lien or liens for work or material furnished; and in addition to a consideration of $350, defendant agreed to furnish the tools and rigging for the work, the same to be returned to them after the work had been completed. The price of the work was not to be paid until it had been completed and accepted by the laundry company, and then only upon delivery of proper receipts for all wages and expenses incurred in carryout the agreement. It would have been more satisfactory had the learned trial judge indicated his reasons for holding that this was not an independent contract. We confess to a total inability to discover a single reason for the ruling. Judged simply by its own terms — and these were all the court should consider in construing it — the contract can be nothing less than an independent contract. It commits the entire work of erection to Robinson, beyond the power of the defendant company to interfere in the slightest regard, whether with respect to men or methods, and reserves nothing to the defendant, except only the right to alter the specifications which were made part of the contract between the defendant company and the laundry company. Such reservation does not make it any less independent as a contract: Miller v. Merritt, 211 Pa. 127. The cases in Pennsylvania which hold that such contracts as this are independent in their character, and that he who engages thereunder to do an independent piece of work, whether as a whole, or engages as a subcontractor to do a part, is alone liable for wrong or negligence done in the performance of the contract, are very numerous. We need only refer here to Wray v. Evans, 80 Pa. 102; Harrison v. Collins, 86 Pa. 153; Edmundson v. R. R. Co., 111 Pa. 316; and Miller v. Merritt, 211 Pa. 127. Neither of the cases cited by counsel for appellee qualify in the remotest way the doctrine there asserted. In Trainor v. R. R. Co., 137 Pa. 148, it was freely admitted that the pole which fell and injured the plaintiff belonged to an independent contractor; but it was also admitted that plaintiff was an employee of the defendant, and that at the time he was engaged in the work of the defendant. It was in dealing-with such a state of facts that Me. Justice McCollum said: “The master owes to the servant a duty of providing a reasonably safe place to work and reasonably safe appliances with which to do the work; and the delegation of this duty to an agent or independent contractor will not relieve the master for responsibility for an injury to the servant resulting from its neglect.” The duty there rested upon the defendant to see that the pole was safe, because it was an appliance furnished by it, though belonging to another, to its own workmen, for the accomplishment of its own end. In Foster v. Steel Co., 216 Pa. 279, the plaintiff was injured by collapse of the trestle on which he was at work unloading coal. He was employed by and working under another who was paid by the defendant by the car load. Mr. Justice Potter in that case says: “The defendant company furnished the place in which the work was to be done, and accepted its responsibility to make it reasonably safe and of keeping it in repair. It reserved to itself the- care and maintenance of the trestle upon which the workmen were obliged to remain and to move about while unloading the supplies of fuel and ore for the defendant company. It could not, therefore, with full knowledge of the defects of the structure, permit the men to work upon it, and then shift the responsibility upon a so-called independent contractor.” We need not take the trouble to point out the features of this case which distinguish it from the one in hand; they are too obvious to escape the attention of anyone. The cases are wholly unlike. Clearly it was error for the court to hold in this case that the contract admitted in evidence did not constitute Robinson an independent contractor.

The evidence on part of the plaintiff would have wholly failed to associate the defendant with any responsibility in connection with the erection of the tanks, except for one fact which was undisputed. Though not a single one of the workmen who were engaged says that he was originally.employed by anyone known at the time to represent the defendant, yet all say that the wages they earned were paid them, in whole or part, by the defendant company, and not by Robinson. This circumstance unexplained would warrant the inference that the contract between defendant and Robinson had been ignored or superseded. The defendant advanced an explanation, wholly consistent with its position, that the work was being done by Robinson under the contract when the accident happened. It was this — that Robinson reported to the company that he was without funds to pay the men he had employed, and asked that the company do so and charge him with the advancement; that rather than have the work fail, or run the risk of liens, the company acceded to his request and paid the men directly. This raised a question of fact which necessarily drew the case to the jury. The explanation rested merely upon oral testimony, which, if believed by the jury, would leave the contract between the defendant and Robinson wholly unaffected by the circumstance that the defendant had paid the wages. If the explanation was a true statement of facts, it was more than sufficient to overcome the inference of an abandonment of the contract from the payment of the wages. Whether it was true was a question for the jury. The third assignment of error is sustained.

The judgment is reversed, and venire facias de novo awarded.


author: Mb,. Justice Elkin,

text:
    Conlon v. Pittsburg Railways Company, Appellant.

      Negligence — Street railways — Wagon and car — Rear end collision.

    In an action against a street railway company to recover damages for personal injuries sustained by a car running into the rear end of plaintiff's wagon, the case is for the jury where there is evidence that as the car rounded a curve, the motorman could not sand the track; that after the car passed around the curve, the trolley came off; that no explanation was made as to the cause of the trolley coming off; and that immediately after the accident the motorman said that the car was not fit to take out, and had so reported its condition at the car barn, but was ordered to take it out anyway.
    Argued Oct. 21, 1908.
    Appeal, No. 88, Oct. T., 1908, by defendant, from judgment of O. P. No. 4, Allegheny Co., Third Term, 1907, No. 96, on verdict for plaintiff in case of Thomas J. Conlon v. Pittsburg Railways Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Carnahan, J.

      The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $4,312. Defendant appealed.

      Error assigned was in refusing binding instructions for plaintiff.

      James C. Gray, with him Clarence Burleigh and William A. Challener, for appellant,
    cited: Small v. Pittsburg Railways Co., 216 Pa. 584.

      Rody P. Marshall, with him Thomas M. Marshall, for appellee,
    cited: Rauch v. Smedley, 208 Pa. 175.
    January 4, 1909:
   Opinion by

Mb,. Justice Elkin,

This is a very close case, but after full consideration we are all of opinion, that it was for the jury to determine whether under the facts appellant company was guilty of negligence. The assignments of error relate only to the insufficiency of the evidence to support the allegation of negligence. If no negligence be proven, or if sufficient facts be not established from which negligence may reasonably be inferred, no case is made out. The mere happening of the accident under the circumstances of this case would not be sufficient to charge appellant company with negligence. The negligence charged in the statement of claim is that “A car of the defendant company, going in the same direction, was allowed to collide with the rear end of said wagon on which plaintiff was riding, with such violence as to throw the wagon over and knock down the horses” and thus cause the injuries about which complaint is made. In such cases, the negligence relied on to sustain the action should be more specifically stated in order that the defendant company may know with what particular negligence it is charged in order to properly meet the same. However, the case was tried in the court below on its merits and we need not stop to consider the question of pleadings now. The testimony clearly showed that the car got beyond the control of the motorman and that a collision resulted. We fully agree with the contention of the learned counsel for appellant that if the loss of control of the car was not due to any negligence of the motorman, or to a defective car, appliances or materials necessary in properly running the same, there could be no recovery, because under such circumstances no negligence would have been established. There is evidence, however, in this case that as the car rounded the curve the motorman could not sand the track for the reasons stated in his testimony, all of which enjoined greater care, and after the car passed around the curve the trolley came off and no explanation is made of the cause. It may have been unavoidable or it may have been the result of carelessness. In addition, there is the evidence of two witnesses that immediately after the happening of the accident the motorman said the car was not fit to take out, and that he had reported its condition at the car barn before taking it out on the trip when the accident occurred, but was ordered to take it out anyway. All of which circumstances demanded some explanation by the company if it desired to relieve itself from the charge of negligence. Under these circumstances the trial judge commited no error in submitting the case to the jury.

Judgment affirmed.


author: Mr. Justice Brown,

text:
    Todd, Appellant, v. Gernert.

      Mechanics’ liens — Apportionment—Dwelling houses — Act of June 4, 1901, P. L. 431.
    1. There is nothing in the Act of June 4, 1901, P. L. 431, or its supplement of April 17, 1905, P. L. 172, which permits a single mechanic’s lien to be filed against several dwelling houses, and then apportioned.
    A separate lien must be filed against each building on the basis of an apportionment of what is due.
    2. The Act of June 4,1901, P. L. 431, repeals all prior acts relating to mechanics’ liens and furnishes “a complete and conclusive system in itself, so far as relates to liens for labor or materials,” furnished to buildings and other structures and improvements named in it. There is no provision in the act which any longer allows an apportionment of a claim.

      Mechanics’ liens — Words and phrases — Definition.
    3. The word “plant ” in the mechanic’s lien act is to be given its ordinary meaning of property owned or used in carrying on some trade or business. The term cannot be applied to a row of dwellings where the only business carried on is housekeeping.
    Argued Oct. 21, 1908.
    Appeal, No. 113, Oct. T., 1908, by plaintiff, from order of C. P. No. 1, Allegheny Co., Dec. T., 1907, No. 24, striking off mechanic’s lien in case of John S. Todd v. Charles H. W. Gernert, Owner, and John E. McClellan, Contractor.
    Before Mitchell, C. J., Fell, Brown, Mestrbzat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule to strike off mechanic’s lien. Before Ford, J.
    The only question involved was the right to file a single mechanic’s lien against three dwelling houses in a row.
    The court made absolute the rule to strike off the lien,

      Error assigned was the order of the court.

      William A. Golden, for appellant.

      Albert H. Moeser, for appellee.
    January 4, 1909:
   Opinion by

Mr. Justice Brown,

The right of the appellant to file a mechanic’s lien was under the Act of June 4, 1901, P. L. 431. All prior acts relating to this subject-mattter are repealed, and it furnishes “a complete and conclusive system in itself, so far as relates to liens for labor or materials” furnished to buildings and other structures and improvements named in it. No one of the numerous cases cited by counsel for appellant has any relevancy to the question before us on this appeal, for they were all decided prior to 1901 and related to questions arising under the statutes then in force.

The lien which the court below struck off was a single claim for labor and materials furnished in the erection of three separate buildings. They are described in the lien as “three brick dwelling houses,” two of them being similar in design. It is admitted that they are separate and distinct structures, with a space of several feet between each, and the claimant undertook to apportion his claim.

The claim as filed is not contemplated by the eleventh section of the act of 1901, and is clearly not permitted by the twelfth. By the eleventh a claim may be filed for labor or materials furnished to a “structure,” but no permission is given to file a single one against several structures. By the succeeding section such a claim may be filed against more than one structure, but only when they “ are all intended to form a part of one plant.” The right to file a lien at all is purely statutory, and may be exercised only as the statute directs. This is not'questioned by counsel for appellant, but, that his client’s claim may be brought within the statute, he asks us to say that the three dwelling houses are all intended to form one plant. In the claim filed they are not described as forming part of one plant, and if these words had been inserted in it, their use, in the face of the description of the properties as three separate brick dwelling houses, would have to be regarded as surplusage and as evidence of an utter misconception of the meaning of a “ plant.” That word is to be given its ordinary sense of property owned or used in carrying on some trade or business. Men speak daily of the plant of a foundry, factory, mill or railroad, but the term has not yet been applied to a row of dwellings where the only business carried on is housekeeping.

An apportionment of a claim is no longer allowed, but the appellant might have filed a separate one against each building on the basis of an apportionment of what was due him on his contract. This is the permission given him by the act of 1901. What he was permitted to do under that act he has not done, but did that which he was not permitted to do either under it or the supplement of April 17, 1905, P. L. 172, when he filed a single claim against three separate dwelling houses. The order of the court below, striking off the lien, is affirmed.


author: Mr. Justice Elkin,

text:
    Bigham v. Wabash-Pittsburg Terminal Railway Company, Appellant.

      Contract — Illegal contract — Change of grade or road. — Municipal and property owners’ consent.

    1. The fact that a contract involves the change of grade of a public road, and that the consent of the municipality and of the property owners is necessary to the accomplishment of the work under the contract, does not make the contract void and illegal ab initio. The presumption is that such consent had been obtained or could be secured, and in either event the contract would be perfectly valid.

      Contract — Breach of contract — Measure of damages.

    2. In an action to recover damages for the breach of a contract it appeared that the defendant, a railroad company, needed a place to dump earth. The plaintiffs having such a place, the parties entered into an agreement by which the defendant secured a license or privilege to deposit on plaintiffs’ land so much earth, estimated at 150,000 cubic yards, as would be necessary to make a certain grade agreed upon. When the defendant had deposited about half the amount of earth estimated it stopped work. Held, that the measure of damages for the breach of the contract was the difference in value of the plaintiffs’ lands with the fill completed, and as it was at the time of the breach, with the fill only partially made.
    3. In such a case it is error to permit the plaintiffs to recover an amount determined by multiplying the difference between the number of cubic yards actually filled and 150,000 cubic yards, by the estimated cost per cubic yard.
    4. In such a case where the defendant denies any obligation to fill plaintiffs’ property with 150,000 cubic yards, it is not necessary for it to specifically deny its obligation to furnish the difference between the number of cubic yards actually filled and 150,000 cubic yards, as alleged in the statement of claim. The denial of the defendant’s liability to furnish the greater amount necessarily includes the lesser, and is sufficient to put upon plaintiffs the burden of establishing not only the contract, and the liability of the defendant under it, but the damages suffered by reason of the alleged breach.
    5. Plaintiffs must prove the amount of damages claimed by them for breach of contract, or they will only be entitled to nominal damages. Failure to deny the amount of damages alleged to have been sustained, does not admit them.
    6. If there be different modes of measuring damages, depending on the circumstances, the court should first hear the evidence and instruct the jury afterwards as to the proper measure to be applied. The underlying principle in such cases is that the damages must be such as might naturally be expected to follow a breach of the contract, keeping in mind the benefit which the contracting parties had in contemplation when the agreement was entered into.
    Argued Oct. 21, 1908.
    Appeal, No. 96, Oct. T., 1908, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1905, No. 174, in case of Kirk Q. Bigham and Thomas B. Hutchinson v. Wabash-Pittsburg Terminal Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit for breach of contract. Before Kennedy, P. J.
    At the trial it appeared that the agreement, for the breach of which the suit was brought, was as follows:
    “Made November —, 1901, between Kirk Q. Bigham and the Pittsburg, Carnegie & Western Railroad Company, Witnesseth:
    “That said Bigham doth hereby consent and agree that said. company shall build a tramway along the easterly hillside of the Little Saw Mill Run valley from the end of the big cut on line of the Pittsburg, Carnegie & Western Railroad to Banksville avenue, and along Banksville avenue from the Mission School lot to the City line, and with the waste material from the grading of said road amounting to about one hundred and fifty thousand (150,000) cubit yards fill out level from the said hillside to and across Banksville avenue at a grade beginning at Woodville Avenue and rising four (4) feet per hundred feet until a sufficient height be reached to provide for said material by a uniform grade from said point to the City line, making said fill in successive strips running the whole distance.
    “In consideration whereof, said company agrees to cross South Hill avenue with its tramway at a grade in such a manner as not to interfere with the use of said avenue; that no earth or other material shall be deposited on land of said Big-ham et al. above the grade of Banksville avenue, to be established as aforesaid; that all said material shall be so placed as to make a uniform level surface, the whole width of said Banks-ville avenue extending at grade to said hillside from the Mission School lot to the city line and carrying Banksville avenue through to Woodville avenue, and shall be left smooth and in good surface, and further that said work shall be done under the supervision of said Bigham and in accordance with the directions by him from time to time given so far as his interests are affected.”
    Defendant presented these points:
    1. The undisputed proof being that the property of the plaintiffs abutted on Banksville avenue, and said avenue having been used as a highway for the public for thirty years past, and being a' highway in the city of Pittsburg, it would have been unlawful for the defendant to fill over and across such highway, as provided, as plaintiffs contend, in the contract, and the plaintiffs can recover no damages because of defendant’s refusal to fill over and across such avenue. Answer: Refused. [22]
    2. It being the undisputed evidence in the case that to make the fill the plaintiffs demand and which the plaintiffs contend is as specified in the contract sued on, exhibit “A,” attached to the statement of claim, over and across Banksville avenue, would have required the defendant to fill into and at places clear across Saw Mill Run, a well-defined and continuous stream of water, thus preventing the flow of water in said stream, or forcing said waters against and over properties of others than the plaintiffs, and to make such fill extending over and across Banksville avenue, would require defendant to commit an unlawful act and a private and public nuisance. Therefore plaintiffs cannot recover damages for nonperformance by defendant of an act which it would have been unlawful for it to perform. Answer: Refused. [23]
    3. That the measure of damage is the difference in value of the plaintiffs’ land with the work as now done upon it by defendant and the value it would have had had defendant made the fill as contended for by plaintiffs. Answer: Refused. [24]
    4. If the additional filling the plaintiffs demand would not increase the value of their land, they cannot recover. Answer: Refused. [25]

      5. Under all the evidence in the case the plaintiffs can recover at best only nominal damages. Answer: Refused. [26]
    6. Under all the pleadings and evidence, the verdict must be for the defendant. Answer: Refused. [27]
    The court charged the jury as follows:
    [You have heard the testimony on behalf of the plaintiffs tending to establish the correctness of their claim, and that evidence is uncontradicted; therefore I instruct you that under the pleadings and evidence in this case your verdict must be for the plaintiffs for the amount claimed in the statement of claim, with interest from the date of the suit. Counsel for plaintiffs has asked me to charge you as follows: That under all the pleadings, evidence and admissions in this case, the verdict of the jury should be for the plaintiffs for the amount claimed in plaintiffs’ statement of claim, with interest thereon from the date of bringing suit. This point is affirmed.] [28]
    Verdict and judgment for plaintiffs for $41,526. Defendant appealed.

      Errors assigned among others were (22-28) above instructions, quoting them.

      Wm. Watson Smith, with him George B. Gordon, Willis F. McCook and B. J. Jarrett, for appellant.
    — The contract was illegal: O’Brien v. Philadelphia, 150 Pa. 589; Hancock v. Wyoming Borough, 148 Pa. 635; Jones v. R. R. Co., 151 Pa. 30; City of New Haven v. R. R. Co., 62 Conn. 252 (25 Atl. Repr. 316); Shortall v. Fitzsimons & Connell Co., 93 Ill. App. 232; Trustees v. Oyler, L. R. 31 Chancery Div. 412; Eastern Expanded Metal Co. v. Webb Granite, etc., Co., 81 N. E. Repr. 251; American Mercantile Exchange v. Blunt, 102 Maine, 128 (66 Atl. Repr. 212); Smith v. Luning Co., 111 Cal. 308 (43 Pac. Repr. 967); Wilcox Mfg. Co. v. Brazos, 74 Conn. 208 (50 Atl. Repr. 722); Sussman v. Porter, 137 Fed. Repr. 161; Spalding v. Ewing, 149 Pa. 375; Marshall v. R. R. Co., 57 U. S. 314; Doane v. Ry. Co., 160 Ill. 22 (45 N. E. Repr. 507); Tool Co. v. Norris, 69 U. S. 45; Oscanyan v. Arms Co., 103 U. S. 261; Woodstock Iron Co. v. Richmond, etc., Extension Co., 129 U. S. 643 (9 Sup. Ct. Repr. 402).
    In case of nonperformance of contract, the damages are to be estimated as of the date of the breach and not as of any subsequent time: Morse, Williams & Co. v. Arnfield, 15 Pa. Superior Ct. 140.
    The court below accepted the view that the defendant not having denied the damages, as alleged in the statement of claim, it was precluded thereby, there being no such issue raised in the pleadings. It was impossible for the defendant to raise such an issue until the plaintiffs had laid the ground for the same by an averment of the proper damages in their statement of claim. The defendant cannot certainly be called upon to deny something that is not averred in the statement of claim: Emig v. Spat, 155 Pa. 642; Howell v. Bennett, 81 N. Y. Sup. Ct. 555; Lucot v. Rodgers, 159 Pa. 58; Electric Co. v. Thackara Mfg. Co., 167 Pa. 530.
    It is difficult to point out in advance what the true rule for damages should be, but when the rule applied leads to erroneous result we know it is not the proper rule: McKnight v. Ratcliff, 44 Pa. 156; Seely v. Alden, 61 Pa. 302; Theiss v. Weiss, 166 Pa. 9; Keck v. Bieber, 148 Pa. 645; Kunkel v. Wherry, 189 Pa. 198; Penna. R. R. Co. v. Plank Road Co., 71 Pa. 350; White v. McLaren, 151 Mass. 553 (24 N. E. Repr. 911); West Chester & Phila. R. R. Co. v. Broomall, 18 W. N. C. 44; Watterson v. Allegheny Valley R. R. Co., 74 Pa. 208; Hays v. Street Ry. Co., 204 Pa. 488; Rabe v. Coal Co., 213 Pa. 252.

      Thomas Patterson, of Patterson, Sterrett & Acheson, with him R. B. Petty and R. P. Marshall, for appellees.
    — We contend that the contract was lawful, and that it must be presumed in this case that the municipal authorities consented to its performance: McNeill v. Reid, 9 Bing. 68; Hobbs v. McLean, 117 U. S. 567 (6 Sup. Ct. Repr. 870); McCandless v. Steel Co., 152 Pa. 139; Favor v. Philbrick, 7 N. H. 326; Marcy v. Crawford, 16 Conn. 549; Avery v. Halsey, 31 Mass. 174; Coventry v. Barton, 17 Johns. 142; Ives v. Jones, 25 N. C. 538.
    The statement of claim made out the plaintiffs’ right to recover damages for nonperformance. It therefore was the duty of defendant to set out in his affidavit of defense directly and specifically the matters relied on as a defense to the action: Moore v. Ins. Co., 196 Pa. 30; O’Hare v. Second National Bank, 77 Pa. 96; Braunn v. Keally, 146 Pa. 519; Sigua Iron Co. v. Vandervort, 164 Pa. 572; Bair v. Hubartt, 139 Pa. 96; Carpet Co. v. Latimer, 165 Pa. 617; Organ Company v. Ecker, 184 Pa. 350; Brennan’s Estate, 65 Pa. 16; Gannon v. Fritz, 79 Pa. 303; Bank v. Henning, 171 Pa. 399; Todd v. Insurance Co., 9 Pa. Superior Ct. 379.
    The primary rule in case of the partial failure to perform a contract to do a certain work, is that the party injured is entitled to recover the costs and expenses reasonably necessary to make the work conform to the requirements of the contract, on the principle that the plaintiff is entitled to work such as he contracted for: Stillwell, etc., Mfg. Company v. Phelps, 130 U. S. 520 (9 Sup. Ct. Repr. 601); Smethurst v. Woolston, 5 W. & S. 106; Morris v. Parham, 4 Phila. 62; Erie & Pittsburg R. R. Co. v. Johnson, 101 Pa. 555; Carli v. Seymour, 26 Minn. 276; St. L., etc., R. R. Co. v. Lurton, 72 Ill. 118; Lawton v. Fitchburg R. R. Co., 62 Mass. 230; Broumel v. Rayner, 68 Md. 47 (11 Atl. Repr. 833).
    January 4, 1909:
   Opinion by

Mr. Justice Elkin,

This is an action of assumpsit to recover damages for the breach of a contract. A number of the assignments of error relate to the legality of the contract and are predicated upon the theory that appellant company undertook to do what it could not do without the consent of the municipality and adjoining property owner, and if such consent could not be obtained, the undertaking was illegal and the contract void. On this question we agree with the conclusion reached by the learned trial judge and with the views expressed by counsel for appellees. There is nothing on the face of the contract to indicate an illegal purpose. The mere fact that it involved a change of grade in an old road over which the public had an easement did not make the purpose unlawful and the contract void ab initio. It only required the consent of the city and the adjoining property owner to do everything the contracting party agreed to dp. The presumption is that such consent had been obtained or could be secured, and in either event the contract would be perfectly valid. If appellant did not or could not secure such consent, the facts relied on should have been set out in the affidavit of defense. The general averment that the contract had been performed so far as it was lawful is not sufficient under the pleadings and rules of court, and the testimony offered relating to this question was properly excluded.

As to the measure of damages, our view is different. The learned court below directed a verdict for plaintiffs for the full amount claimed in the declaration, together with accrued interest thereon. The amount was determined by multiplying the number of cubic yards necessary to complete the fill as set out in the statement of claim, by the estimated cost per cubic yard averred in the declaration. In other words, the measure of damages was held to be the cost of completion. It was further held that if appellant desired to controvert the fact as to the number of cubic yards alleged to be necessary to complete the fill or the cost thereof, these matters should have been set up in the affidavit of defense. With this position we do not agree. The affidavit of defense denies that appellant ever covenanted to fill plaintiff’s property with 150,000 cubic yards of earth or to place any specific amount of waste material upon the same. Since the alleged amount of earth required to complete the fill is arrived at in the statement of claim by deducting from the estimated number of cubic yards required to make it, the number of cubic yards already deposited, it would seem like sticking in the bark to say that appellant should be denied the right to raise the question of its liability to furnish the whole number of cubic yards or some fractional part thereof because it had failed to specifically deny its obligation to furnish 71,628 cubic yards which it was alleged were necessary to complete the contract. The denial of appellant’s liability to furnish the greater amount necessarily includes the Jesser and certainly is sufficient to put upon plaintiffs the burden of establishing not only the contract and the liability of appellant under it, but the damages suffered by reason of the alleged breach. Again, in the affidavit of defense it is denied that the appellant is indebted to the plaintiffs in the sum of $35,814, being the amount claimed in the statement of claim, or any other sum whatever. Certainly, these denials are sufficient to put plaintiffs upon notice that the liability of appellant under the contract would be contested and if its liability be established, the measure of damages which is a conclusion of law, could not properly be determined until the evidence was in and the facts understood. This is the doctrine of Seely v. Alden, 61 Pa. 302, and numerous other cases. Independently, however, of the question whether it was necessary to include in the affidavit of defense a denial of the measure of damages inferentially set up in the statement of claim, the general rule is that the plaintiffs must prove the amount of damages sustained by them or they will only be entitled to nominal damages and that failure to deny the amount of damages alleged to have been sustained does not admit them: Lucot v. Rodgers, 159 Pa. 58; Howell v. Bennett, 81 N. Y. Sup. Ct. 555. It has been well said that it is difficult to point out in advance what the true measure of damages should be under a given state of facts. If there be different modes of measuring damages, depending on the circumstances, the court should first hear the evidence and instruct the jury afterward as to the proper measure to be applied. The underlying principle in such cases is that the damages must be such as might naturally be expected to follow a breach of the contract, keeping in mind the benefit which the contracting parties had in contemplation when the agreement was entered into. As we read the contract in the present case there was no binding covenant requiring appellant to furnish 150,000 cubic yards of earth to plaintiffs. There was a license or privilege granted to deposit on the lands of plaintiffs so much earth, estimated at 150,000 cubic yards, as would be necessary to make the grade of the road as agreed upon. The railroad company was desirous of securing a place to dump its waste material, and the appellees had such a property. These were the conditions when the contract was made. The appellees have a right to the benefit of their bargain, but nothing more. Under the facts of this case the true measure of damages would seem to be the' difference in the value of the plaintiffs’ lands with the fill completed and as it was at the time of the breach with the fill only partially made. In this respect what was said in Seely v. Alden, 61 Pa. 302, applies: “It may turn out that the cost of removing the deposit in a certain case would be less than the difference in the value of the land, and then the cost of removal would be the proper measure of damages; or it may be that the cost of removal would be much greater than the injury by the deposit when the true measure would be the difference in value merely.” The question of the proper measure of damages must always be taken .into consideration by the court in the proper disposition of any case wherein damages are claimed: Wilkinson v. North East Borough, 215 Pa. 486. For the reason, therefore, that the proper measure of damages was not adopted in the present case the judgment is reversed and a venire facias de novo awarded.


author: Mr. Justice Fell,

text:
    Wunderlich, Appellant, v. Pennsylvania Railroad Company.

      Railroads — Injuries to property — Indirect damages — Access.
    1. A railroad company is not responsible for indirect injuries resulting from the operation of a road upon its own land in a lawful manner without negligence, unskillfulness or malice.
    2. A railroad company engaged in operating a railroad is not answerable for deprivation of, or interference with, means of access to property, where it appears that the railroad was constructed by another company, and that any recovery in relation to such deprivation or interference is barred by the statute of limitations.
    Argued Oct. 21, 1908.
    Appeal, No. 99, Oct. T., 1908, by plaintiffs, from order of C. P. No. 2, Allegheny Co., Oct. T., 1905, No. 100, refusing to take off nonsuit in case of Christian Wunderlich and Wilhelmina Wunderlich, his wife, in right of said wife, v. The Pennsylvania Railroad Company and the Pennsylvania Railroad Company, operating the Allegheny Valley Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for injuries to land. Before Shafer, J.
    The opinion of the Supreme Court states the case.

      Error assigned was refusal to take off nonsuit.

      H. T. Watson, with him D. C. Reardon, for appellants.

      James S. Crawford, with him Patterson, Sterrett & Acheson, for appellee.
    January 4, 1909:
   Opinion by

Mr. Justice Fell,

The plaintiffs are lessees of a house that adjoins the land of the Allegheny Valley Railroad Company, upon which its tracks were laid at least thirteen years before this action was brought. The action is against the Pennsylvania Railroad Company, which had no part in the construction of the road but has operated it since 1900. The grounds of action set out in the statement are that the noise, vibration and dirt caused by the operation of the road injuriously affect the plaintiffs' property, and that safety gates erected on the avenue on which both properties abut interfere with access to the plaintiffs ’ house.

The railroad was constructed wholly on the land of the Allegheny Valley Railroad Company, no part of the plaintiffs' land being taken, and it was not contended that the mode of operation was negligent or in any way unlawful. This branch of the case was ruled by Penna. Railroad Co. v. Lippincott, 116 Pa. 472, and Penna. Railroad Co. v. Marchant, 119 Pa. 541, in which it was held that a railroad cpmpany is not responsible for indirect injuries resulting from the operation of a road upon its own land in a lawful manner without negligence, unskillfulness or malice. For deprivation of or interference with the means of access to the plaintiffs’ property the defendant was not answerable, since the road was not built by it, and any recovery in relation thereto was barred by the statute of limitations.

The judgment is affirmed.


author: Me. Justice Mesteezat,

text:
    Manola, Appellant, v. Enterprise Stamping Company.

      Negligence — Master and servant — Infant—Dangerous machine — Question for jury.

    In an action by a boy fifteen years of age to recover damages for personal injuries, it appeared that plaintiff was employed in a can making establishment where old cans were cut open and the tin was straightened out under rollers, and the edges trimmed by shearing machines. After the boy had been working at a shearing machine for a couple of days, the superintendent said to him: “When you have a stock, you take some other work to do. Go over to some machine and work.” The boy thereupon left the shearing machine, went to a roller, and began feeding the rolls with tin. His hand was caught between the rolls and severely injured. He had been given no instruction how to use the rollers. Held (1), that the single question was whether the boy was justified in doing the work at the rolls under the instructions he had received from the superintendent; and (2) that this question was for the jury.
    Argued Oct. 21, 1908.
    Appeal, No. 105, Oct. T., 1908, by plaintiff, from order of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 138, refusing to take off nonsuit in case of Joseph Manola, a minor, by his father and next friend, Louis Manola, and Louis Manola v. Enterprise Stamping Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass by a boy fifteen years of age against his employer to recover damages for personal injuries. Before Swearingen, P. J.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      Meredith B. Marshall, with him Thos. M. & Body P. Marshall, for appellants.
    — The case was for the jury: Tagg v. McGeorge, 155 Pa. 368; Smith v. Coal & Iron Co., 186 Pa. 28; Lewis v. Seifert, 116 Pa. 628; Fisher v. Ry. Co., 131 Pa. 292; Bucklin v. Davidson, 155 Pa. 362; Kehler v. Schwenk, 151 Pa. 505; Minnequa Springs Imp. Co. v. Coon, 10 W. N. C. 502; Ardesco Oil Co. v. Gilson, 63 Pa. 146; Bollinger v. Gallagher, 170 Pa. 84; Walbert v. Trexler, 156 Pa. 112.

      Wm. S. Dalzell, of Dalzell, Fisher & Hawkins, filed no printed brief.
    January 4, 1909:
   Opinion by

Me. Justice Mesteezat,

We are of opinion that the learned court below was in error in withdrawing this case from the jury. The minor plaintiff was employed to operate one of the defendant’s shearing machines, and was instructed by the company how to perform his duties. In the same room, and about twenty or twenty-five feet from where the boy was working at the shearing machine, there was a set of rolls for straightening out the tin. After the boy had worked at the shearing machine for a couple of days, the superintendent said to him: “When you have a stock, you take some other work to do. Go over to some machine and work.” On the day of the accident the boy had been working at the shears and had prepared a stock of tin. He left his machine ,and went to the rolls and began feeding the rolls with the tin. His hand was caught between the rolls and severely injured.

The learned court construed the instructions given the boy by the superintendent to mean that when he had prepared a stock of tin sheets he should go over to another shearing machine and go to work there. Unfortunately for this position, the instructions of the superintendent do not specify the machine at which the boy is to work. They do not say that he shall go to another shearing machine, but: “Take some other work to do; go over to some machine and work.” This instruction standing alone would authorize the boy to do other work than shearing, and go to any machine in the room in which he was employed. The language is not sufficiently explicit to warrant the court in holding as matter of law that the boy was instructed to leave the machine at which he was at work and go to another shearing machine and perform the same kind of labor. It was broad enough to warrant him in going to work at the rolls after he had prepared a stock of tin sheets at his shearing machine.

It is conceded that the boy was not instructed how to operate the rolls, and that was a duty imposed upon the defendant company if the boy was employed to work there. The single question was, therefore, whether the boy was justified in going to work at the rolls under the instructions he had received from the superintendent. Under the evidence in the case, the question was for the jury.

The second assignment does not comply with the rules of court and need not be considered.

The first assignment of error is sustained, and the judgment is reversed with a venire facias de novo.


text:
    Smith v. Baltimore & Ohio Railroad Company, Appellant.

      Carriers — Common carriers — Negligence—Diversion from proper course of transit — Flood.
    1. In an action against a railroad company to recover for the loss of several carloads of grain by a flood, an averment in the statement of claim that the cars were diverted from the usual and proper course of transit by placing them in a yard particularly named, is not borne out by the proofs where the undisputed evidence is that for seven years prior to the flood all consignments of grain for delivery at the city in question, unless specially consigned to consignees who had private sidings, had been placed in the yard particularly designated for inspection and.re-consignment, that this usage was well understood and acquiesced in, and that the plaintiff knew of it and expected the cars to be placed there.
    2. In an action against a railroad company to recover for carloads of grain lost in a flood, the case is for the jury where the evidence shows that the cars were stored in a yard near a river, that as the flood came on the yard master relied on predictions of the weather bureau and the manager of a river coal company that the flood would not be beyond a certain height, while he knew that floods of a much greater height had taken place four times in five preceding years.
    Argued Oct. 21, 1908.
    Appeal, No. 115, Oct. T., 1908, by defendant, from judgment of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 56, on verdict for plaintiffs in case of J. W. Smith et. al., trading as J. W. Smith & Company, v. Baltimore & Ohio Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for the loss of four carloads of oats. Before Cohen, J.
    The facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows:
    [Now, anything that I may say to you, gentlemen of the jury, concerning what the witnesses have said, you are not to take as positive. I may make a mistake in telling you that such-and-such a witness said such-and-such a thing. The testimony is entirely for you, and while I am reviewing it, should I be wrong, it is for you to ultimately decide what that testimony is.
    Out of the mouth of the plaintiffs’ own witness, Mr. Guyton, you have heard a reason why the goods were not shipped to Pittsburg. He tells you that for years his firm had been in the habit of receiving goods shipped over this road from Chicago, at the South avenue yards in Allegheny City. Now, if goods are shipped to me from New York to Pittsburg, via the Pennsylvania Railroad Company, and I agree with the Pennsylvania Railroad Company to receive those goods at Altoona, that is a good delivery. It does not matter whether there was a custom in this case, or whether there was not a custom; although I may say to you that it is my opinion (and you are not bound to take my opinion of the testimony, but only on law), from the testimony, that there was a custom between the grain men of the city of Pittsburg, one of whom was this plaintiff, and the Baltimore & Ohio Railroad Company to receive freight at the South avenue yards.
    But suppose there was no custom; is there anything in this case to show consent, on the part of the plaintiffs, to take their freight from the Baltimore & Ohio road, shipped to Pittsburg, at Allegheny City? I think the testimony shows there was. Out of the mouths of the plaintiffs’ own witnesses, it has been established to my satisfaction that they had a long-existing, continued, reasonable habit or custom of receiving their goods from the Baltimore & Ohio Railroad Company at Allegheny City. So that, gentlemen of the jury, there are only two questions in this case, to my mind, for you to determine when you retire to the jury room. One is: Were the goods properly and legally delivered in Allegheny City?] [1]
    Plaintiffs presented this point:
    2. If the jury find from the evidence that the defendant company contracted to deliver four cars of oats in question to the plaintiffs at Pittsburg, Pa., and failed to so deliver the same, the burden is upon the defendant company to relieve itself from liability. Answer: Affirmed as to why goods were not delivered at Pittsburg and why possession was not delivered at Allegheny. [2]
    Defendant presented this point:
    3. The uneontradicted evidence in this case shows that for the last six or seven years all consignments of grain delivered to the Baltimore & Ohio Railroad Company for carriage and delivery to persons at Pittsburg (except when specifically consigned to consignees having private sidings), were placed in the South avenue yards of the Baltimore & Ohio Railroad Company, in Allegheny, where the same could be inspected, and were there delivered direct to, or reconsigned by, the consignees, and that said usage of the defendant was acquiesced in and at least impliedly assented to by the plaintiffs in this case, and there is no evidence in this case that would warrant the jury in finding that defendant is liable for the damage caused by the flood to the grain in question here, merely because the defendant placed the cars in question in the said South avenue yards. Answer: That point is affirmed. The mere fact that they put the cars in South avenue yards, that by itself is no reason why the plaintiffs should recover in this case, if you believe the testimony as to the usage existing between the plaintiffs and defendant as to the place of delivery of the freight shipped from Chicago. [3]
    Plaintiffs also presented this point:
    7. It appearing from the testimony of Mr. Edward Donnelly, a conductor on duty in the Allegheny yards of the defendant company, and a witness for the defendant, that orders had been issued on the evening of March 13, 1907, to remove all perishable stuff from the South avenue yards to high ground, and from the evidence of C. A. Smith, a conductor on duty in the defendant company’s yards, and a witness for the defendant, that about 6:30 in the evening of March 13, 1907, orders had been issued to remove cars from the South avenue yards to higher ground; taking this evidence in connection with the testimony of Samuel McElroy and others, to the effect that it would have been possible to have removed perishable freight from the South avenue yards to a place of safety had the effort been made before midnight on March 13, 1907, and the defendant company having failed to remove cars to a place of safety, the defendant is liable, and the verdict must be for the plaintiffs. Answer: Affirmed, with the qualification that defendant had a right to reasonably marshal its forces in behalf of saving their entire freight along the entire line affected in the immediate vicinity; especially had they a right to protect the freight at points where greater danger existed by reason of lower trackage along the line. [7]
    Verdict and judgment for plaintiffs for $2,712.96. Defendant appealed.

      Errors assigned were (1, 2, 3, 7) above instructions, quoting them.

      John S. Wendt, with him Johns McCleave, for appellant.—
    The court erred in submitting to the jury the question whether the cars in question were properly or legally placed in-the South avenue yard in Allegheny City, and in not unequivocally instructing the jury that the defendant was not negligent or guilty of any breach of duty to the plaintiffs in placing the cars in said yard: Packard v. Earle, 113 Mass. 280; Reiss v. Ry. Co., 98 Fed. Repr. 533; Marande v. Ry. Co., 184 U. S. 173 (22 Sup. Ct. Repr. 340); McMasters v. R. R. Co., 69 Pa. 374; Hostetter v. Park, 137 U. S. 30 (11 Sup. Ct. Repr. 1); Pierce v. Southern Pac. Co., 120 Cal. 156; s. c., 40 L. R. A. 350 (47 Pac. Repr. 874).
    It being admitted in this case that the damage complained of was caused by a flood, the burden rested upon the plaintiffs to show that the proximate inducing cause of the injury was the negligence of the defendant; the plaintiffs failed to sustain this burden: Cau v. Texas & Pacific Ry. Co., 194 U. S. 427 (24 Sup. Ct. Repr. 663); Arthur v. Ry. Co., 204 U. S. 505; Morse v. Ry. Co., 53 Atl. Repr. 874; Long v. R. R. Co., 147 Pa. 343; Farnham v. Camden & Amboy R. R. Co., 55 Pa. 53; Patterson v. Clyde, 67 Pa. 500; Buck v. Penna. R. R. Co., 150 Pa. 170; Frank Bros. & Co. v. Railroad Co., 9 Pa. Superior Ct. 129.

      Robert M. Ewing, with him Arthur C. Smith and D. A. Rowland, for appellees.
    January 4, 1909:
   Opinion by

Mr. Justice Fell,

This was an action to recover damages for the loss of four carloads of grain delivered to the defendant at Chicago for carriage to Pittsburg. The cars were not taken into Pittsburg but were placed in the defendant’s hay and grain yard on the opposite side of the Allegheny river, at South avenue, Allegheny City. While the cars were in this yard awaiting delivery to the plaintiff, there was a flood in the river, the yard was overflowed and the grain was injured. It was averred in the statement of claim that the cars were diverted from the usual and proper course of transit by placing them in the South avenue yard instead of carrying them to the defendant’s yard in Pittsburg, and that the defendant was afterwards negligent in not removing the cars to a place of safety.

In support of the assignments of error it has been earnestly argued (1) that there was no breach of duty in placing the cars in the South avenue yard and that the jury should have been so instructed; (2) that there was no evidence to warrant a finding of negligence on the part of the defendant in not removing the cars, that caused or contributed to the injury complained of.

It was specified in the bill of lading that the grain should be carried to “the usual place of delivery at said destination.” Pittsburg and Allegheny, although distinct municipalities separated by a river, were commercially one community. The undisputed evidence was that for seven years prior to the flood all consignments of grain for delivery at Pittsburg, unless specially consigned to consignees who had private sidings, had been placed in the South avenue yard for inspection and reconsignment; that this usage was well understood and acquiesced in; that the plaintiff knew of it and expected the cars to be placed there.

Since there was practically no dispute as to this matter, at the close of the testimony there might have been a distinct instruction withdrawing the question of diversion from the jury. This would have cleared the atmosphere at the trial, and confined and directed the attention of the jury to the only quesr tion remaining, that of negligence. It is argued that it was neither distinctly withdrawn nor distinctly submitted, and that the verdict may have been based upon a finding as to it, unsupported by competent evidence. It was in effect withdrawn by the charge, in which the learned trial judge stated that the custom of delivering at the South avenue yard had been established to his satisfaction by the plaintiffs’ witnesses, that this was a delivery within the meaning of the law because agreed to by the parties, and that the only question remaining was as to negligence. The jury must have understood from this instruction that the question of diversion was eliminated.

The main contention of the defendant was that the flood was extraordinary and unprecedented, and that adequate measures had been taken to guard against any danger that could reasonably have been anticipated. The cars were placed in the yard at different times on March 13, 1907. There was then a flood in the river, and at places the defendant’s tracks were covered with water. A rise of thirty feet would put water in the bottom of the freight cars in the yard. The water rose constantly all day, and at 5 v. m. the yard master had information that the water would rise twenty-six or twenty-eight feet and possibly higher, and he provided for a rise of thirty feet. At 2 a. m. on the fourteenth the water had risen a height of twenty-eight feet and was still rising. An attempt was then made to move the cars, but it was unsuccessful because logs and rafts had been washed on the tracks and the cars were derailed by them. The yard master relied for information on the local forecaster of the weather bureau and the manager of a river coal company, whose experience and knowledge gave weight to his opinion. These were probably the best authorities available. The yard master relied upon them implicitly and went to his home at five o’clock on the thirteenth and his assistant left at nine o’clock.

The assistant yard master testified: “The water was rising rapidly; we expected it at any moment to shut us out. The warning we got was that we would get from twenty-six to twenty-eight feet. That was all the warning we got except they said of course i.t may go higher. This is the information they gave; and we didn’t go on what 'may be.’” A witness called by the defendant, who for twenty-seven years had been the manager of steel works a quarter of a mile below the defendant’s yard, testified that he had received information from the weather buréau and the river coal company at five o’clock on the thirteenth that the rise of water would not exceed twenty-seven feet; but that the forecast was so at variance with' the actual conditions, there having been a heavy snowfall and continuous rain and a rapid rise of the river, that he did not believe it correct and protected his property against a rise of thirty-two feet during the night and thirty-four feet the next morning.

The defendant’s employees were not required to guard against a rise of water not reasonably to be expected. But they knew that floods in which the river rose over twenty-eight feet were not unusual. It had been above that height four times in the five preceding years, and within that period had reached a height of 32.4 feet. They knew that during the day there had been a continuous and rapid rise of the river. Whether with this knowledge they were negligent in placing implicit reliance on the reports received from the weather bureau and the river coal company and in not removing the cars to higher ground, was a question not to be withdrawn from the jury.

The judgment is affirmed.


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    McVey v. Kaufmann, Appellants.

      Mechanics’ liens — Subcontractors—Notice of intention to file — Contract — Act of June 4,1901, P. L. 431.
    1. Those who would enjoy the benefits of the mechanic’s lien act can do so only by complying with its requirements.
    2. A condition precedent to the right of a subcontractor to file a lien is that he has given to the owners of the building written notice of his intention to file it, together with a sworn statement setting forth the contract under which he claims, the amount alleged to be still due and how made up, the kind of labor or materials furnished and the date when the last work was done or materials were furnished.
    3. If a notice by a subcontractor of an intention to file a lien is defective, the owner does not by pleading to the scire facias on it, waive his right to make defense on the trial that a condition of the right to file the lien had not been complied with.
    4. Although notice of an intention to file a lien must be given by a subcontractor to the owner of the building before a valid lien can be filed, the notice forms no part of it. All that need appear on the face of the lien is “when and how notice was given.”
    5. Where a subcontractor notifies the owner of his intention to file a lien, he must set forth in his notice the contract between himself and the contractor.
    6. A mere statement in the notice that a contract existed without stating the date, or any of its terms, or whether it was written or oral, is insufficient.
    Argued Oct. 22, 1908.
    Appeal, No. 70, Oct. T., 1908, by defendants, from judgment of C. P. No. 2, Allegheny Co., July T., 1905, No. 831, on verdict for plaintiffs in case of James S. Mc-Vey and John McMurray, partners as the Iron City Heating Company, v. Isaac Kaufmann et al., trading as Kaufmann Brothers.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Scire facias sur mechanic’s lien. Before Frazer, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiffs for $3,886.55. Defendants appealed.

      Error assigned was in refusing binding instructions for defendants.

      J. Rodgers McCreery, with him Bobbin B. Wolf, for appellants.
    — The statutory provision, requiring the contract to be set forth, is mandatory, and compliance with its provisions is required: Westmoreland Guarantee B. & L. Assn. v. Connor, 216 Pa. 543; Tenth Nat. Bank v. Smith Const. Co., 218 Pa. 581; Collins v. R. R. Co., 29 Pa. Superior Ct. 547; Wharton v. Investment Co., 180 Pa. 168; Knelly v. Horwath, 208 Pa. 487; Thirsk v. Evans, 211 Pa. 239; American Car, etc., Co. v. Alexandria Water Co., 215 Pa. 520.

      Ambrose B. Reid, with him A. V. D. Watterson and H. F. McGrady, for appellees.
    — All technical defenses to the lien in this case have been waived by the defendants going to trial upon the plea filed: Lee v. Burke & Glass, 66 Pa. 336; St. Clair Coal Co. v. Martz, 75 Pa. 384; McKelvey v. Jarvis, 87 Pa. 414; Scholl v. Gerhab, 93 Pa. 346; Klinefelter v. Baum, 172 Pa. 652; Boro, of Norristown v. Fornance, 1 Pa. Superior Ct. 129; Bernheisel v. Smothers, 5 Pa. Superior Ct. 113; Fahnestock v. Speer, 92 Pa. 146; Howell v. Philadelphia, 38 Pa. 471.
    The notice of intention to file the lien given by the plaintiffs to defendants was sufficient compliance with the provisions of the mechanic’s lien law of June 4, 1901: American Car, etc., Co. v. Alexandria Water Co., 215 Pa. 520; Este v. Penna. R. R. Co., 27 Pa. Superior Ct. 521; Thirsk v. Evans, 211 Pa. 239.
    January 4, 1909:
   Opinion by

Mr. Justice Brown,

The claim filed in this case is that of subcontractors. A condition precedent to their right to file it was that they had given Kaufmann Brothers, the owners of the building, written notice of their intention to file it, together with a sworn statement setting forth the contract under which they claimed, the amount alleged to be still due and how made up, the kind of labor or materials furnished and the date when the last work was done or materials were furnished. This is the requirement of sec. 8 of the Act of June 4,1901, P. L. 431. The sixth point presented by the defendants on the trial asked that a verdict be directed for them because the notice of the intention to file the lien was not in compliance with the statutory requirement. This was refused, and from the judgment on the verdict for the plaintiffs the defendants have appealed, alleging error in the court’s refusal of their sixth point, because the sworn statement attached to the notice served upon them of the intention to file a lien did not set forth the contract under which the subcontractors claimed.

If the notice of the intention to file the lien was defective, the appellants did not, by pleading to the scire facias on it, waive their right to make defense on the trial that a condition of the right to file it had not been complied with. Though notice of an intention to file a lien must be given by a subcontractor to the owner of the building before a valid lien can be filed, the notice forms no part of it. All that need appear on the face of the lien is “when and how notice was given.” These are the words of clause 11, sec. 11 of the act of 1901; and in interpreting them we have said: “A copy of the notice need not be set out in the lien. Whether the form and substance of the notice are in compliance with the provision of sec. 8 are matters to be determined at the trial:” Thirsk v. Evans, 211 Pa. 239. The notice being no part of the lien, the only remedy for a defect in it is not, as counsel for the appellees contend, to move to strike it off, but defense may be made on the trial that there was no right to file it, though regular on its face, just as such defense may be made, if, as a matter of fact, the lien was filed too late or the labor or materials were not furnished. It is a substantive defense on a matter dehors the lien.

The sworn statement attached to the notice of the appellees of their intention to file their claim was in the following form: “Before me personally came James S. McVey, of the Iron City Heating Company, who signed the foregoing notice and being by me duly sworn according to law did depose and say that the contract under which he claims is as follows: for work and labor done and material furnished in and about the construction of the Kaufmann Building, corner of Diamond street and Cherry Alley, Pittsburg, Pa.; that the amount still due and owing to him under said contract is the sum of Thirty-three hundred fourteen 40/100 dollars with interest from November 10, 1904, which is made up as follows, to wit: (here insert debts and items with credits if any): Attached hereto find Exhibits ‘A,’ ‘B,’ ‘C,’ ‘D,’ 'E,’ and ‘F’ and made part hereof. That the kind of labor furnished was the pipes, fittings and labor for connecting boilers for C. H. Bradley, Jr., & Co., the contractors for the furnishing and erecting of boilers in said Kaufmann Building (the materials furnished),.pipes and fittings and valves and the date when the last labor (or materials) was furnished was on the tenth day of November, 1904. James S. McVey. Sworn to and subscribed before me this 7th day of February, a. d. 1905. Geo. Johnston, Notary Public.”' Neither in the notice nor in the attached affidavit is the contract set forth under which the appellees claimed. Nothing can be gathered from them as to a contract between the subcontractors and the contractor except that there was one. The date of it is not given, not one of its terms is stated, and whether it was written or verbal no one can tell. The six exhibits are mere itemized bills made out to the contractor for the labor and materials furnished. Under the notice the appellees might have proved any kind of a contract with the contractor, and the notice of their contract, instead of being a substantial compliance with the statute, as the learned trial judge held in overruling the motion for judgment for the defendants, n. o. v., was no compliance at all. Not even the contract price for what had been furnished was given. From all that the owners could have learned from the notice as to the contract between their contractor and the subcontractors the reference to it might as well have been omitted altogether. The evident purpose of the requirement that a subcontractor must set forth in his notice to the owner of the building the contract under which he claims, is to enable the owner to know just what the rights of the claimant are and to protect himself accordingly. If this contract had been to furnish labor and materials in consideration and payment of existing indebtedness of the subcontractors to the contractor, the owners could safely have disregarded the notice and settled with their contractor; or, if the amount claimed had been in excess of the price stipulated in the contract, the owners could, have settled with their contractor, knowing that their building would not be liable for more than the contract price for the labor and materials furnished by the subcontractors. Other illustrations might be given of the wisdom of the legislature in requiring that the contract of a subcontractor be set forth in his notice of an intention to file a lien, but they are not needed, for those who would enjoy the benefits of the mechanics' lien act can do so only by complying with its requirements: Westmoreland Guarantee Building & Loan Association v. Connor, 216 Pa. 543; Tenth National Bank of Philadelphia v. Smith Construction Co., 218 Pa. 581.

The assignments of error are sustained, the judgment below is reversed and is entered here for the defendants.