Snyder, Sener and Reese v. Emil F. Bordt.

Section 8 of the same Act, as amended by the Act of March 24, 1909, P. L. 65, declares that any sub-contractor, intending to file a claim, must give to the owner written notice to that effect, verified by affidavit, setting forth the name of the party with whom he contracted, the amount alleged to be still due, the nature of the labor or materials furnished, and the date when the last work was done or last materials furnished. Such notice must be served at least one month before the claim is filed, and within three months after the last of his work was done or materials furnished, if he has six months within which to file his claim, and within forty-five days thereafter, if he has but three months within which to file it, but no such notice need be served if the sub-contractor be ruled to file his claim before the expiration of said periods. Service may be made personally on the owner anywhere; or such notice may be served on an adult member of his family, or of the family with which he resides, if such owner resides within the county where the structure or other improvement is situate. If he resides without the county where such structure or improvement is situate, then such notice may either be served on his architect or on the party in possession of the structure or improvement; or it may be posted on some public part of the structure or other improvement. After such notice, and until the claim is finally defeated, the owner may, unless approved security be given to indemnify him from loss, retain out of any payment due or to become due the contractor a sum sufficient to protect him from loss."

Section 10 of the Act of 1901 declares that, "in the case of tenancies or leasehold estates, of alterations and repairs, . . . the claim must be filed in the Court of Common Pleas of the county or counties in which the structure or other improvement is situate, within three months after the claimant's contract or agreement is completed, and in all other cases, within six months thereafter." According to the testimony of the plaintiffs, no notice was served before the lien was filed. The work was completed on March 30, 1918, and the lien was filed on August 23, 1918. Therefore, it also follows that, if plaintiffs were sub-contractors or if the claim belonged to that class called alterations and repairs, it was not filed in proper time.

Under the Act of June 16, 1836, P. L. 695, no lien for repairs, alterations or additions to an old building could be supported. This situation, however, covering the state, was changed by the Act of May 18, 1887, P. L. 118. Thereby, a lien was authorized for work done or materials furnished for or about the repair, alteration of or additions to any house or other building, provided, however, that notice should be given to the owner or reputed owner of the property at the time of furnishing the materials or performing work in and about the repairs, alterations or additions to any such house or other building, of his intention to file a lien under the provisions of this Act. The Act of 1901, quoted above, contains the same provisions as to notice in case of a sub-contractor, or where alterations or repairs are made, except that the notice must be given on or before the claimant completes his work or furnishes the last of his materials. The third section of the Act of

Snyder, Sener and Reese v. Emil F. Bordt.

1901 provides that " a substantial addition to a structure or other improvement shall be treated as a new erection or construction thereof, and the addition and the structure or other improvement of which it becomes a part, and the curtilage appurtenant to both, shall be subject to the lien. Every adaptation of an old structure or other improvement to a new or distinct use, which effects a material change in the interior or exterior thereof, shall also be deemed an erection or construction thereof." It seems to us, therefore, that under the Act of 1901 the plaintiffs have added a substantial addition to the garage already on the ground. The size of the garage was considerably increased; new foundations were constructed, and new windows placed in the same. If, then, the plaintiffs could be considered as general contractors, and not as sub-contractors, this lien could possibly be maintained; but there appears the trouble in the case. We think that, under all the facts, they were sub-contractors under Hook, and, as they did not give proper notice and did not file their lien in proper time, they cannot now maintain it.

We are, therefore, obliged to make this rule for judgment for defendant non obstante veredicto absolute.

Rule made absolute.

Court of Common Pleas of Lancaster County

Book v. Froelich.

Sale-Agency-Evidence.

In an action to recover the loss on a re-sale of tobacco after it was sold to and refused by a purchaser alleged in the plaintiff's statement to be an agent of the defendant, a verdict was properly directed for the defendant where there was no evidence to show that the first purchaser was acting as agent for the defendant, but both claimed to be agents for another party whose name, and not that of the defendant, appeared in the contract and the affidavit of defense denied all liability of the defendant under the contract.

Rule for a new trial. August Term, 1918, No. 20.

O. F. Bricker and B. F. Davis, for plaintiff and rule.

M. E. Musser and John E. Malone, contra.

April 2, 1921. Opinion by LANDIS, P. J.

The plaintiff in this case claimed damages from the defendant for an alleged breach of an agreement for the sale of certain leaf tobacco. The statement averred that the tobacco was sold under a written contract, of which the following is a copy:

No. 1155.

Nov. 12, 1917.

This is to certify that I have bought of Mr. E. M. Book 1917 crop of tobacco amounting to 15 acres

20,000 lbs.

Book v. Froelich.

The same to be well assorted and free from water casing, pole burn, stem rot or rust. White veins to be put into seconds. The tobacco to be delivered in good merchantable order at our warehouse in Mountville, Pa.

MILTON BICKHART.

The testimony of the plaintiff showed that, on the day in question, Milton Bickhart came to the farm of the plaintiff and purchased his crop of tobacco. A contract was prepared and signed in duplicate. The defendant's name did not appear in the transaction. Book stripped the tobacco, and he afterwards received from Bickhart the following notice:

"MILLERSVILLE, PA., FEB. 19, 1918.

Dear Sir: We will receive tobacco at Holtwood Mon. Feb. 25th, and at Quarryville the following Monday, providing we can get the cars."

On February 25, 1918, Book took part of his tobacco to McCall's Ferry. He met the defendant there, and he testified that Froelich told him it was a fine crop of tobacco, but that he had stripped it too soon. The tobacco was placed in a railroad car, but by whose direction the evidence does not show. Some dispute apparently arose concerning its payment; but at all events, he left the tobacco there, and went home without being paid for it. On the following Friday the ticket agent at McCall's Ferry 'phoned Book that he had taken it off the car and piled it in the warehouse; that "it was red hot." Book testified that he then called up Froelich and asked him what he was going to do about the balance of the tobacco, and Froelich told him to bring no more until they came to examine it; that he would send his man, Bickhart, down. Bickhart did not come to make such examination. The following Sunday evening Book saw Froelich in Quarryville and asked him whether he was going to receive the tobacco, and he says that Froelich told him he would if it was sound. That was the last Book heard of him and is all the evidence presented by the plaintiff upon this part of the controversy. The tobacco was then sold by Book to S. Saks for $3,316.15, and Book in this suit claimed from Froelich, individually, the difference between that figure and the price set forth in the above contract, plus some expenses of carriage, &c. There was no evidence to show that either Fendrich or Bickhart represented Froelich in the transaction, or that Froelich, either personally or by his agent, bought the tobacco. Because of this, the Court felt that the connection between these parties should be shown by some one, and the defendant, therefore, opened his case and proved that Mr. Fendrich was a dealer, doing business in Evansville, in the State of Indiana, and that Froelich was merely an agent of Fendrich in the purchase of tobacco in this vicinity and had no personal interest in the same. Bickhart also testified that he made the purchase for Fendrich, and not for Froelich. But, while the Court directed a verdict, it did not do so on account of this evidence, which the plaintiff had carefully abstained from introducing, but because the plaintiff's testimony contained no evidence of any contract between the plaintiff and Froelich. On this account, we are of the opinion that there can be no recovery against Froelich for a

Book v. Froelich.

breach of the contract, when the statement specifically shows that the agreement of sale was between the plaintiff and Fendrich. The agreement is plain and unambiguous on its face, and it has not been shown that the defendant ever assumed its obligation.

There was evidence that Froelich took out a United States license, and also that, in one instance, some tobacco was delivered to him by Harry F. Herr; but Mr. Herr could not tell who bought his tobacco, nor whose check paid for it. It was customary for Froelich, as Fendrich's agent, to give, in the purchase of tobacco, checks or drafts signed by Fendrich.

If the plaintiff is correct as to the quality of tthe tobacco which he sold and offered to deliver, then it would seem that he has an action for breach of the contract against some one. But it appears to us that he should recover from the party who made the contract, and not from one who has not been shown to have had any interest in it.

The plaintiff also claims that, as the affidavit of defense does not show any agency or allegation of agency, therefore the defendant could not offer such facts in evidence. As a matter of fact, the fifth paragraph of the affidavit of defense says: "Defendant admits the execution of the contract set forth in the fourth paragraph of plaintiff's statement, but denies that he is a party to the same, or has incurred any obligation under the same, and further denies any ratification of the same." He is not defending on the ground that he was an agent, but because he never made the contract, and that it was made with another party. Surely, the law relative to foreign corporations, which has been cited by the plaintiff's counsel, has no application here.

I do not think that the plaintiff has a right to recover in this case, and therefore the rule for a new trial is discharged.

Rule discharged.

Court of Quarter Sessions of Lancaster County

Commonwealth v. Kinzer.
Larceny Rent.

A verdict of guilty on an indictment for larceny will not be allowed to stand where the defendant obtained possession of the cash register alleged to have been stolen, to secure the rent due him from a tenant who owned it and through whom the prosecutor claimed title.

Indictment for larceny.

November Sessions, 1920, No. 9.

John M. Groff, for rule.

Verdict guilty. Rule for a new trial.

John E. Malone and W. C. Rehm, Dist. Atty., contra.

January 15, 1921. Opinion by HASSLER' J.

It appeared at the trial of this case that Jacob Z. Frey was the owner of a cash register. He was a tenant of George W. Kinzer of a house in the Borough of Ephrata. There was some trouble about the

Commonwealth v. Kinzer.

On February 1, 1917, Kinzer obtained possession of a cash register belonging to the said Frey, not as his property, but to secure the rent, and so far as Frey, or any one claiming under him, is concerned, he has had possession of it since. Kinzer loaned it to F. E. Weinhold, who afterwards returned it to him.

Dr. J. G. Leber purchased the property of Jacob Z. Frey at a bankruptcy sale of his property, and the cash register, being on the list as part of said property, was claimed by him. It was not delivered to said Leber at the sale, nor was it at the place of sale. Under these circumstances we do not think that there was any felonious taking and the defendant should not have been convicted. The differences between these parties is, we think, a matter for the civil courts. The rule for a new trial is, therefore, made absolute, and we think the verdict is against the law and the evidence.

C. P. AND Q. S. OPINIONS.

By JUDGE HASSLER:

Saturday, April 16, 1921.

Harry Dabler v. Eli Mann. Question of law raised in the affidavit of defense. Rule for judgment for defendant discharged and defendant directed to file an affidavit of defense.

Serenado Mfg. Co. v. A. L. Echternacht. Rule for judgment for want of a sufficient affidavit of defense. Judgment for plaintiff for $95.16.

Doll Clark v. Martin Reardon. Rule for a new trial and rule for judgment for defendant n. o. v. discharged.

Bernard Ehrhart v. Minnie Kaufman. Rule for a new trial and rule for judgment for defendant n. o. v. discharged.

E. W. McElroy v. Laura Filby. Rule to set aside taxation of costs made absolute.

Isaac Welsh v. The Marietta Hollow Ware and Enameling Company. Rule to amend statement made absolute.

William E. Piehler v. Albert Zaepfel. Affidavit of defense raising a question of law. Rule discharged and defendant directed to file an affidavit of defense.

In re East Cocalico Township School District. Rule to remove school board discharged and petition dismissed at costs of petitioners.

New Holland National Bank, to use of Martin C. Weaver et al., v. D. M. Gehman. Rule for judgment for defendant n. o. v. discharged. Commonwealth of Pennsylvania v. Chas. F. Altland et al. Demurrer to indictment. Demurrer overruled.

Commonwealth of Pennsylvania v. Chas. F. Altland. quash dismissed.

Commonwealth of Pennsylvania v. J. H. Altland. quash refused.

Motion to

Motion to

Commonwealth of Pennsylvania v. Edward J. Conroy, Jr. Rule to modify order of court made absolute. Order reduced to six dollars a week.