OJnrn^U ICaui ^rljool Slibraty UAR '29 1910 LAW LIBEART. Cornell University Library KFP 459.A1S55 Law of builders in Pennsylvania : 3 1924 024 704 631 THE LAW OF BUILDEES iisr PENNSYLVANIA A TREATISE On the Relation of the Building Contractor to his Employers, Material Men, and. Employees, and the Relation of the Contracting Parties to the Public, INCLUDING THE MECHANICS' LIEK LAW and A FULL COLLECTIOI*^ OF FOEMS By WILLIAM K. SHISSLER, LL.B. Of the Schuylkill County Bar PHILADELPHIA T. & J. W. JOHNSON & CO. 1903 Copyright, 1903, by T. & J. W. Johnson & Co. To lUs^ afatbet anD /IRotber, To whom I am incalculably indebted for their practical precepts and unselfish sacrifices, this volume is reverently dedicated. Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024704631 PREFACE The building contractor is probably more frequently obliged to consider points of law relating to his affairs than are the members of any other class of business men. Innumerable questions arise, almost daily, with reference to his relation to his employer, to the material man from whom he purchases, to his employees, and to the public in general. The very nature of the contracts entered into, and of the work done by a building contractor, entails upon him the necessity of solving many puzzling legal propositions. This fact, and the lack of any work of like scope and purpose, make any apology for the appearance of this publi- cation unnecessary. Its object is not to make every man his own lawyer. The old saw to the effect that he who is his own lawyer generally has a fool for a client, has lost none of its force, and is particularly true when one has had no iespecial training in the knowledge of the law. It is intended, however, by this work, to give a plain statement of the law coming under the several heads herein indicated, as determined by the courts of the State of Pennsylvania. It is the author's hope and belief that a reasonably intel- Hgent use of the volume here offered will save the user from stumbling into the many pitfalls which beset the path of the building contractor, and which when fallen into, neces- sitate the employment of counsel, thus incurring needless expense, and the trouble and annoyance incident to litiga- tion. While the work is primarily intended for the building contractor and his employer, the owner, it has been also the V VI PREFACE. writer's aim to make it especially useful and valuable to the material man and the contractor's employees, as well as to all persons who are engaged in or contemplate build- ing. The author has endeavored to present the subject-matter to the reader as free from puzzling technicalities as its nature will admit of, yet he has, nevertheless, carefully avoided sacrificing thoroughness and reliability. The state- ments made throughout the work are substantiated by ref- erences to adjudicated cases, most of which apply to build- ing contracts, while others refer to suits where similar prin- ciples were involved. These cases have been examined with all the care essential to the making of a working text-book for the members of the legal profession. While the work, as stated, is not intended for the exclusive use of the counselor at law — the scope of its treatment, the nature of its arrangement and the completeness of its index, will, it is hoped, make it a useful hand-book and work of reference for the busy prac- titioner, along the line of decisions indicated. The author desires to express his hearty appreciation of the many courtesies extended to him in the preparation hereof, by Arthur J. Pilgram, Esq., of Pottsville, Schuylkill County, an eminent and honored member of the Schuylkill County bar. He is also indebted to William Trickett, LL.D., dean of the Dickinson School of Law, who has kindly proof- read certain portions hereof, and under whose tutorship, while a student at that institution, he received at least a degree of that enthusiasm for work which characterizes that gentleman, and which, together with his especial qualifica- tions of mind, has contributed to make Doctor Trickett one of the foremost instructors and law writers of the country. The suggestions made by Mr. Thomas H. Marshall, the well-known contractor, of 413 Locust Street, Philadelphia, Pa., coming as they did from one of such long and varied PREFACE. VU experience, have been of great help to the author, and he gratefully makes acknowledgment of the same. The author further desires to make acknowledgment of the many valuable practical suggestions, as to certain of the forms appended hereto, made by Architect Frank X. Reilly, of Pottsville, a gentleman who has been markedly success- ful in his calling. He also cheerfully gives credit to Walter G. Treibly, Esq., of Ashland, H. B. Bartholomew, Esq., G. A. Berner, Esq., Eli L. Heisler, master mechanic, and G. Van Dusen Rickert, superintendent of the Edison Electric Illu- minating Company, all of Pottsville, for their advice and sug- gestions as to the subject-matters deserving treatment herein, as well as to the construction and perspicuity of the language used in the presentation thereof. No one can be more conscious of the shortcomings of, the work than the author; but he offers it to the building trade, the legal profession, and the public in general, with the sincere hope that it will not be without value to them in the solving of their respective perplexities. WM. K. SHISSLER. Minersville, Pa., August, 1903. TABLE OF CONTENTS INTRODUCTION. Page I. SECTION. I Acts repealed by act of June 4, 1901. 2. Object of act of June 4, 1901. 3. Significance of multiplicity of acts. SECTION. 4. Eflfect of act of June 4, 1901. 5. "Owner'' defined. 6. "Contractor" defined. 7. "Sub-contractor" defined. PART I. RELATION OF CONTRACTOR TO OWNER. CHAPTER I. ESSENTIALS OF CONTRACT. Page 4. I. Agreement. SECTION. 8. Introduction. 9. Agreement and specifica- tions distinguished. 10. Definition of express and implied agreements. 11. Oral and written agree- ments compared. 12. Presumption when oral agreements are to be re- duced to writing. 13. Effect of partly written and partly printed agreement. 14 Interpretation of several written instruments. 15. Interpretation of technical words. 16. Ambiguous clauses and how intent may be shown. 17. Variation of written agree- ment by contemporane- ous oral agreement. 18. Variation of written agree- ment by subsequent oral agreement. 19. Abandonment of written ix TABLE OF CONTENTS. SECTION. agreement where ma- terial details are omitted. 20. Great deviation from orig- inal agreement to be con- strued as abandonment. 21. 22. Parties. Care necessary in naming. The power of corporations and authority of agent thereof, should be ascer- tained. Property. 23. Sufficiency of description. Consideration. 24. When, in what amounts, and to whom payments are to be made. Time. 25. Delay. Extension of time. Penalty. Disputes. SECTION. 26. Provision for settling. Extras. 2^. Defined. 28. Agreement as to extras should be in writing. 29. Waiver, by conduct, of pro- vision requiring orders for extras to be in writ- ing. 30. Agreement as to extras must be in writing where original contract must. 31. Agreement as to price before proceeding. Waiver of. Proposals. 32. Effect of bid. Owner may use his discretion in awarding. II. Specifications. 33. Defined. Conflict with agree- ment. CHAPTER II AUTHORITY OF OWNER S AGENT Page 16. 34. Introduction. Custom, Neces- sity. 35. Importance of being written. 36. Binding force of agent's acts. 37. Decision of owner's agent binding upon both parties. 38. Delay. Caused by agent's acts. 39. Authority extends to sub- contractor. 40. Contractor bound by agree- ment requiring notice of SECTION. defects to be given to archi- tect. 41. Agreement between contract- or and sub-contractor. 42. "Progress certificates." Own- er may waive. 43. Agent last employed proper party to give certificate of approval. 44. Agent cannot waive provi- sions of contract. 45- Notice to agent binds owner. TABLE OF CONTENTS. XI CHAPTER III OBLIGATION OF CONTRACTOR TO OWNER Page 21. I. To Complete as Agreed. (A) Time. SECTION. 46. Introduction. 47. Meaning of "by" and "with- in'' certain time. 48. Where no time is men- tioned. Reasonable time. 49. Time may be extended. so. Extension of time. Extra worlc. 51. Extension of time. Agree- ment as to defective work. 52. Extension of time. Inclem- ent weather. 53. Delay, caused by owner's act. 54. Delay resulting from con- demnation of material. 55. Delay resulting from change in proposed work. 56. Penalty, or liquidated dam- ages, for delay. 57. When delay will work re- scission of contract. 58. Contractor may not com- plete where contract has been rescinded by delay. (B) Manner. 59. Introduction. 60. Difficulty in determining what is a sufficient com- pliance. 61. Must be workmanlike. 62. Specific performance. 63. "To the satisfaction of owner." 64. "To the satisfaction of owner." Mere caprice. 65. Plans and specifications. Compliance with. 66. Plans and specifications. Valueless work. 67. Plans and specifications. Absence of covenants. 68. Plans and specifications. Contractor may not im- prove upon. 69. Plans and specifications. Sub-contractor. 70. Must be suitable for pur- poses contemplated. 71. Substantial performance suf- ficient. 72. Substantial performance. "As good as the first one." 73. Substantial performance. Immaterial defects. Al- lowance for. 74. Effect of interference by owner. 75. Notice necessary where owner furnishes materials. 76. Acceptance of work. Effect of occupying. 77. Acceptance of keys. II. Non-Performance. Excused. When 78. Interference by owner. 79. Where owner looks on. 80. Plans and specifications. Defects in. 81. Plans and specifications. Alterations in. 82. Omission of duty by owner. 83. "Act of God." Perform- ance. Xll TABLE OF CONTEKTS. SECTION. 84. "Act of God." Delay. 85. Inclement weather. 86. Delay by fire. III. Liability for Injury to or Destruction of Prop- erty. 87. Owner's duty to provide safe place. Latent de- fects. 88. Owner's duty to provide safe place. Patent de- fects. 89. Destruction of work. "Act of God." 90. Destruction of work. Con- tractor's negligence. CHAPTER IV RECOVERY FOR WORK DONE Page 37. 91. Introduction. 92. Severable contract. Defined. 93. Entire contract. Defined. 94. Part performance. No recov- ery. Abandonment of con- tract. 95. Interference of owner. 96. When owner dispenses with entire performance. 97. Substantial performance. Minor defects. 98. Certificate of approval of owner or his agent. When necessary. 99. Certificate of approval. When withheld from mere caprice. SECTION. 100. Certificate of approval. When withheld by owner's instruction, loi. Certificate of approval. Amount due not stated. 102. Agent's decision binding upon owner. 103. No recovery without submis- sion of work to party desig- nated in agreement. Ex- ceptions. 104. Part payments. Merely ad- vances. 105. Meaning of "within" certain figures. CHAPTER V MECHANICS LIENS Page 43 In General. J SECTION. SECTION. 106. Introduction. 107. Defined. 108. Legislation with reference to. Act of June 4, 1901. 109. Waiver of right to file. no. V\ III. G Steps necessary to bind others, no. Waiver. Subsequent with- drawal of agreement not to enter lien. Giving of credit does not TABLE OF CONTENTS. Xlll SECTION. operate as waiver of right to file lien. 112. Release of lien. Efifect of. Who May Acquire. 113. Who may acquire lien. 114. Who may not acquire lien. 115. Sub-contractors. 116. Partial contractors. For material part of work. Lessee. 117. Power of lessee to im- pose. Assignment of Claim. 118. Power of claimant to as- sign. Labor and Materials for WHICH Lien May be Had. iig. For what labor. Altera- tions amounting to less than $100. 120. New structure and altera- tion, distinguished. 121. For removal or demolition of structure. 122. Unfinished building. De- struction of work. 123. For materials not used in the building. 124. Labor or materials must be furnished on the credit of the building. Property Subject to Lien. 125. Defined. Under act of June 4, 1 901. 126. Removal of property. Ef- fect of. SECTION. 127. Public property and that of lunatics, etc., excepted. 128. Curtilage defined. Steps Necessary to Secure. 129. Alterations. As to sub- contractor. 130. Necessity of consent of owner to tenant, to bind property. 131. Notice of intention to file. Sub-contractor. 132. Mode of making service of notice. Sub-contractor. 133. When owner may retain part of contract price. 134. Time within which all claims must be filed. 135. Several sepa rate con- tracts. 136. Contents of claim. 137. Affidavit to claim. 138. Notice to owner of having filed claim. 139. Notice necessary when contract impairs rights of claimants. 140. Sub-contractors bound by terms of contract filed. 141. Giving of credit merely postpones proceedings. 142. Claimant's right to insur- ance in case of fire. Effect of Lien. Judgment and Execution Thereon. 143. Date of lien. 144. Priority and force of lien. 145. Judgment and execution. 146. Stay of execution. 147. Conclusion. XIV TABLE OF CONTENTS. CHAPTER VI INSURANCE Page 66. SECTION. 148. Who may insure. 149. Insurance does not cover woodwork deposited apart from the building being erected. 150. Application of insurance money in case of loss. SECTION. 151. Increase of hazard. Fifteen- day clause. Acquiescence of company. 152. Insurance is discontinued when building falls. 153. Storm insurance. CHAPTER Vn BONDSMEN Page 69. 154. Generally. 155. Surety and guarantor. Dis- tinguished. 156. Guarantor. Statute of frauds. 157. Bondsmen will be released when alterations are made in work proposed. 158. Bondsmen will not be re- SECTION. leased where alterations in proposed work are made in a subsequent supplemental agreement. 159. Breach of contract or aban- donment by contractor. As affecting rights and duties of bondsmen. PART n. RELATION OF CONTRACTOR TO MATERIAL MEN. CHAPTER Vni RELATION OF CONTRACTOR TO MATERIAL MEN Page 74. SECTION. In General. 160. Introduction. 161. Sale defined. SECTION. 162. Who may make contract of sale. 163. Power of infants to make contract of sale. TABLE OP CONTENTS. XV SECTION. 164. Power of lunatics to make contract of sale. 165. Efifect of drunkenness upon contract of sale. 166. Effect of Sunday transac- tions. Offer and Acceptance. 16^. Must be clearly defined and unconditional. 168. Acceptance. Must be com- municated within a rea- sonable time. 169. Necessity for communica- tion of acceptance. 170. Sending goods evidence of acceptance. Where smaller quantity is sent than ordered. 171. Authority of agent to re- ceive acceptance. 172. When mail, telegraph or telephone may be used to forward acceptance. 173. When contract becomes binding. 174. When offer may be with- drawn. Consideration. 175. When no consideration is mentioned. 176. When fixed by third parties. When Title Passes. 177. Intention. 178. Transfer of title and of possession, not synony- mous. 179. Cash transaction. 180. Delivery to common car- rier. 181. Bill of lading. 182. Bill of lading. Bill of ex- change. 183. Inspection, weighing, etc. 184. Authority of inspector. 185. When no place is desig- nated for delivery. 186. Receipt and acceptance, distinguished. Samples. Right of Stoppage in Tran- situ. 187. Defined. 188. Conditions necessary. 189. Who may exercise. 190. What constitutes termina- tion of transit. 191. Vendee may intercept goods. 192. What constitutes insol- vency. 193. Effect of giving credit. 194. Exercise of right does not work rescission of con- tract. Payment. 195. Requisites of tender. 196. When made to an agent. 197. Promissory note, check, etc. 198. Promissory note, etc. Re- ceipt. 199. Use of the mail. Deceit. 200. Deceit must be of material fact. 201. Rule of caveat emptor. 202. There must have been an intention to deceive. 203. Vendee must have been deceived. 204. Remedy. XVI TABLE OF CONTENTS. PART in. RELATION OF CONTRACTOR TO EMPLOYEES. CHAPTER IX HOW CREATED AND TERMINATED Page 90. SECTION. ' L Creation. 205. Introduction. 206. The relation of master and servant, defined. Ap- prentice. 207. General principles. 208. Who may employ. Time of Hiring. 209. Where no time is specified. 210. How hiring may be made permanent. 211. Where servant continues after expiration of time specified. SECTION. 212. Effect of specific time for payment. 213. Acceptance of wages. II. Termination. 214. When no time is stipu- lated. 215. Effect of death upon con- tract of hiring. 216. When time is stipulated. 217. Habitual neglect. Willful disobedience. Intoxica- tion. 218. Larceny. Embezzlement, etc. CHAPTER X RECOVERY FOR WORK DONE Page 96. 219. 221. 222. 223. 224. 225. Duty to pay what services are reasonably worth. Duty to pay what services are reasonably worth. Exceptions. Abandonment by servant. Abandonment. Notice of intention to quit. Duty of master. Discharge for cause. Discharge without cause. "Quantum meruit." Discharge without cause. Employee must other employment. seek Wages. 226. When demandable. To whom payable. Reduc- tion of. Attachment. 227. Lien for. 228. Assignment of property of contractor for benefit of his creditors. Efiect of. 229. No exemption in suits for. 230. No stay of execution. TABLE OF CONTENTS. XVll CHAPTER XI DUTY AND LIABILITY OF MASTER Page 105. SECTION. I. Duty of Master. 231. To hire competent serv- ants. 232. To provide safe place. 233. To provide safe machinery, appliances, etc. 234. Master need not provide latest or best machinery, etc. 235. Notice to servant of de- fects in machinery, etc. 236. To notify servant of latent dangers incident to work. 237. Master's duty to infants. 238. Where servant assumes risk. II. Liability of Master. (A) Fellow-Servant and Vice-Principal, Distin- guished. 239. In general. SECTIOir. 240. Vice-principal. Right to hire. . 241. Vice-principal. Personal duties. 242. Vice-principal. Inspector of machinery, etc. 243. Fellow-servant. Same scope of employment. 244. Fellow-servant. Voluntary- tender of services. (B) When Recovery May be Had. 245. Proof of relation neces- sary. 246. Negligence must be shown. 247. As to vice-principal and fellow-servant. 248. Contributory negligence. CHAPTER XH INTERFERENCE WITH EMPLOYEES Page 117. ■" SECTION. SECTION. 249. In general. 251. Object of acts as to strikes, 250. Legislation inPennsyl- as determined by the courts. vania. Boycotting, Blacklisting, etc. XVIU TABLE OF CONTENTS. PART IV RELATION OF THE CONTRACTING PARTIES TO THE PUBLIC CHAPTER XIII RELATION OF THE CONTRACTING PARTIES TO THE PUBLIC Page 125. I. Independent Contractor. 252. Defined. II. Duty and Liability of Owner. 253. In general. 254. To employ competent con- tractor. 255. Unlawful or especially hazardous work. 256. Encroachment upon build- ing lines of public streets. Cornices, etc. 257. Encroachment upon ad- joining property. Ad- verse possession. 258. Encroachment upon ad- joining property. Cor- nices. Eaves drip. 259. Party walls. Defined. In general. 260. Regulation of party walls. 261. Party walls. In Philadel- phia. "Cities of the first class." 262. Party walls. In Pittsbufg. "Cities of the second class." 263. Party or partition fences. In general. 264. Partition fences. In Phila- delphia. 265. Special acts. Borough ordinances, etc. 266. Fire escapes. 267. Light and air. No ease- ment by prescription in adjoining property. III. Duty and Liability of In- dependent Contractor. 268. Act of servant. 269. Willful trespass of servant. 270. Defective scaffolding. 271. Acts of sub-contractor. Architect. 272. For injury resulting to third person after ac- ceptance of work by owner. IV. Duty and Liability of the Contracting Parties, IN General. 273. Right of support. Sub- jacent and lateral. 274. Use of the public streets. TABLE OF CONTENTS. XIX APPENDIX FORMS Page 151. SECTION. 27s. Agreement to build. 276. Specifications. 277. Notice of waiver of right to file lien. 278. Bond. Contractor to owner. 279. Bond. Owner to contractor. 280. Assignment of right to file claim. 281. Notice by owner, repudiating contract made by one falsely acting as if he were the owner of premises upon which work was to be done. 282. Notice of repudiation by owner of work done on his premises and which work was not authorized by him. 283. Notice to owner by sub-con- tractor of intention to file lien for alteration, repairs, etc. 284. Notice to owner by sub-con- tractor of intention to file lien. 284a. Sworn statement by sub- contractor. 285. Lien by sub-contractor for SECTION. labor or materials furnished for a new structure. 286. Notice to owner or reputed owner by contractor or sub- contractor, of having filed lien. 287. Affidavit by contractor or sub-contractor of having notified owner of having filed claim. 288. Notice by owner to con- tractor that the owner has been notified of amount due the sub-contractor by the contractor. 289. Certificate of authority to tenant to improve premises occupied by him. 290. Certificate that improve- ments made by tenant to premises occupied by him were authorized by owner of the premises. 291. Assignment of lien subse- quent to filing. 292. Petition by laborer to be substituted as use-claimant. XX TABLE OF CONTENTS. MECHANICS' LIEN LAW OF JUNE 4. iQoi- Page 179. SECTION. 293. Definitions. "Structure or other improvements." "Owner." "Contractor." "Sub-contractor." "Claim- ant." "Property." 294. Subject to a lien. When not subject to a lien. Written notice. 295. The curtilage appurtenant. Substantial addition. Adaptation of old structure. Labor and materials. 296. When ratification may be presumed. 297. Invalid contract. 298. In lieu of lien. Balance may be paid into court. Ap- proved security to be en- tered. 299. Rule to file claim. To be entered and indexed. Re- tained payments. 300. Sub-contractor to give writ- ten notice. Sworn state- ment. Service of notice and statement. 301. Owner may serve notice on party liable. Owners may pay. Defence by con- tractor. 302. Time for filing claim. Scire facias. Verdict. Final judgment. 303. Contents of claim. Sub- stance of affidavit. 304. Single claim. Apportioned claim not allowed. 305. Alterations and repairs, etc. Date of lien. Estate, charge or lien. 306. Value of property to be de- termined. Division of tract. SECTION. 307. Waiver of right to file claim. Legal effect of contract. Admissible evidence. Re- lease. 308. Contract for payment in other than legal tenders. Decree. Claims other than by respondents. 309. Contract for payments at given times. Stay of ex- ecution. 310. Contract filed. To be en- tered. 311. Contract so drawn as to im- pair rights, etc. Rescission of contract. 312. Bankruptcy or insolvency proceedings. 313. Notice of filing of claim. 314. Substitution as use-claimant. Decree. Trial of -issue. 315. Petition averring incorrect date, etc. Stay. Decree. Trial by jury. 316. Any one having interest in the property may intervene. Substitution of defendant. 317. Any defendant may petition. Rule. Decree. Trial by jury. 318. Assignment or transfer to a third party. 319. Removal or detachment. 320. Suit for labor and materials. Service of writ upon third party. Defendant's affi- davit. Quashing of sum- mons. 321. Form of writ of summons. 322. Alias and pluries writs. Pro- cedure. TABLE OF CONTENTS. XXI SECTION. 323. Notice to issue scire facias. Compulsory non-suit. 324. Form of scire facias. Ami- cable scire facias. 325. Service. Advertisement. Notice. 326. When no affidavit of de- fence is filed. 327. Judgment against contractor. To be marked for use of owner. Court may open the judgment. 328. Defences. Minor defects. Court may order a more specific statement, etc. 329. Compulsory non-suit. Re- covery of costs. 330. Petition to have structure or other improvements alone sold. Rule. Decree. Ap- praisers. 331. Appointment of sequestrator. Delivery of possession. 332. Writ of scire facias to revive. Amicable scire facias to re- vive or amicable judgment. Terre-tenant. 333. Service. Notice. 334. Practice and procedure. 335. Claim, scire facias, etc., to be entered. Reversal or satis- faction. 336. Form of levari facias. 337. The title acquired. Where structure or improvement is situate in more than one county. 338. Judgment against corpora- tion. Distribution. 339. Sale of leasehold estate or other tenancy. 340. Entry of improved security for stay. Admissions. Ex- piration of the stay. 341. In case of removal by fire, etc. Subrogation. 342. Security. 343. Amendment of record papers. Enlargement of time by court. 344. Rule returnable. Petitions. Answers. Replications. Facts. 345. Service. 346. In case claim is paid, etc. In case of refusal to satisfy. 347. Distribution. 348. Legal distribution. Priority. 349. Condition precedent to pay- ment. Receipt. 350. Purpose of this act. 351. Appeals. 352. Application of this act. 353. Repeals. THE LAW OF BUILDERS IN PENNSYLVANIA INTRODUCTION SECTION. SECTION. I Acts repealed by act of June 4, 4. Effect of act of June 4, 1901. 1901. S- "Owner" defined. 2. Object of act of June 4, 1901. 6. "Contractor" defined. 3. Significance of multiplicity of 7. "Sub-contractor" defined. acts. Acts Itepealed by Act of June 4, 1901. 1. The Act of Assembly of the State of Pennsylvania, approved the fourth day of June, 1901, repealed by desig- nation, either the whole of, part of, or supplements to, one hundred and nine acts, and also "all other acts and parts of acts, general, special or local, appertaining to the subject- matter covered by this act ... it being intended that this act shall furnish a complete and exclusive system in itself, so far as relates to liens for labor or materials commenced to be furnished after its approval."^ Object of Act of June 4, 1901. 2. The object of said act was to define the rights and liabilities of the parties to, and regulating the effects of, I Act June 4, 1901, P. L. 431, § 61. 2 LAW OF BUILDERS. § 3 contracts for work and labor to be done and labor or materials to be furnished to any building, etc., and to provide remedies for the recovery of debts due by reason of such contracts, and also to repeal, consolidate and extend existing laws in relation to such contracts. Significance of Multiplicity of Acts. 3. The multiplicity of acts bearing upon such matters is the best evidence of the variety and importance of the ques- tions arising with reference thereto. Furthermore, the fact that so many acts were repealed at one stroke demonstrates that the legislators appreciated the difificulty of arriving at a correct conclusion as to just what the respective rights and duties of the parties to such contracts were under the statutes of the State, then in force. Effect of Act of June 4, 1901. 4. Notwithstanding, however, the comprehensiveness of the act in question, it can, at best, like most other legislation, but establish landmarks, as it were, along the pathway of legal duty. We must examine the decisions of the courts as given from time to time, and consider certain of the general principles of the law, to determine what the legal rights and duties of the respective parties to such contracts are, in the ever-varying occurrences of daily work. "Owner" Defined. 5. While, as already noted, the act of June 4, 1901, is intended principally to provide means for the recovery of the contract consideration, there are a number of terms defined therein which have a general significance and appli- cation and which it may be profitable to consider at this time. "The word 'owner' means an owner in fee, a tenant for life or years; or one having any estate or interest in the property described in the claim, who, by contract or agree- § 6 INTRODUCTION. 3 ment, express or implied, in person or by another, contracts for the erection, construction or removal of the structure or other improvement, or any part thereof; for the addition thereto, for the alteration or repair thereof, or for the fitting up or equipping the same, from time to time, for the purpose for which it is intended."^ "Contractor" Defined. 6. The word "contractor" is defined in said act to mean "one who, by contract or agreement, express or implied, with the owner or one who acts for the owner, plans or superintends the structure or other improvement, or any part thereof; or furnishes labor, skill or superintendence thereto; or supplies or hauls material, reasonably necessary for and actually used therein; or any or all of them, whether as an architect, superintendent, builder or material man."* "Sub-contractor" Defined. 7. The word "sub-contractor" is defined to mean "one who, by contract or agreement, express or implied, with the contractor or with one who acts for him, superintends the structure or other improvement, or any part thereof; or furnishes labor, skill or superintendence thereto; or supphes or hauls materials, reasonably necessary for and actually used therein; or any or all of them, whether as superintend- ent, builder or material man; excluding, however, archi- tects, and those contracting with material men."* 2 Act June 4, igoi, §1. 3 Ibid. 4 Ibid. PART I. RELATION OF CONTRACTOR TO OWNER. CHAPTER I. ESSENTIALS OF CONTRACT. I. Agreement. 8. Introduction. 9. Agreement and specifica- tions distinguished. 10. Definition of express and implied agreements. 11. Oral and written agree- ments compared. 12. Presumption when oral agreements are to be re- duced to writing. 13. Effect of partly written and partly printed agreement. 14. Interpretation of several written instruments; 15. Interpretation of technical words. 16. Ambiguous clauses and how intent may be shown. 17. Variation of written agree- ment by contemporane- ous oral agreement. 18. Variation of written agree- ment by subsequent oral agreement. 19. Abandonment of written agreement where ma- terial details are omitted. 4 SECTION. 20. Great deviation from orig- inal agreement to be con- strued as abandonment. Parties. 21. Care necessary in naming. 22. The power of corporations and authority of agent thereof, should be ascer- tained. Property. 23. Sufficiency of description. Consideration. 24. When, in what amounts, and to whom payments are to be made. Time. 25. Delay. Extension of time. Penalty. Disputes. 26. Provision for settling. Extras. 27. Defined. 28. Agreement as to extras should be in writing. 29. Waiver, by conduct, of pro- 1 8 ESSENTIALS OP CONTRACT. 5 SECTION. SECTION. vision requiring orders Proposals. for extras to be in writ- 32. Effect of bid. Owner may ing- use his discretion in 30. Agreement as to extras awarding. must be in writing where original contract must. H- Specifications. 31. Agreement as to price before 33. Defined. Conflict with agree- proceeding. Waiver of. ment. I. AGBEEMEig'T. Introduction. 8. When we, as a race, first reached that stage in the steps of human progress when the cleft rock, the skin-covered tent or twig-thatched shelter no longer satisfied us as a means of protection from the elements; when the love of home life, the companionship of mate and offspring, and the less laudable, but probably none the less forcible, desire to outstrip our neighbor first prompted us to forsake these, our early habi- tations, and to build in their stead structures better adapted to our needs and more inviting to our natures, it was to our own hands and skill that the work generally fell, and the mat- ter of building contracts happily concerned us not. It would be interesting to know the experience of that individual who first called upon his fellows to help him, for hire, to build his home. It is unfortunate that we have no record of the case in which their names appear. Let it suf- fice us to say that it is quite likely that our fore-runners early learned, whether as employers or employees, that some defi- nite arrangement in transactions of this kind was absolutely essential, if the peace and good order of the community was to be maintained. It was a long step from the first agreement to build to the first building contract in writing, but as long as it was, and as long as has been the step from the first written contract to the present time, he is, indeed, a hardy man and full of much assurance who will undertake to write a contract of this kind tinder which disputes and differences cannot arise. 6 LAW OF BUILDERS. § 9 There are, however, certain well defined essentials which, when considered and applied, go a long way toward the approximation of that happy result. It is now our purpose to enter upon a consideration of some of the more important of these essentials. Agreement and Specifications Distinguished. 9. Building contracts, when in writing, are, as a rule, made up of two instruments, known respectively as the agreement and the specifications. The former usually contains stipula- tions as to the nature of the work in general, the place such work is to be done, the time for completion, the considera- tion, the time for making payments, the ordering of extra work, known as "extras," and for computing the value of same, the settling of disputes, etc., as we shall show later. The specifications embody instructions as to material and the specific manner in which the work shall be executed, in detail. The drawings or plans are generally made a part of the specifications. Definition of Express and Implied Agreements. ID. An agreement has been technically defined to be "the expression by two or more persons, either by words or con- duct, of a common intention to afifect the legal relations of those persons."^ The rule is that unless both parties are bound neither will be bound.^ All true contracts grow out of the intentions of the parties to the transaction and are dictated only by their mutual and accordant wills. When this intention is expressed we call the contract an express one. When it is not expressed it may be inferred, implied or presumed from the circumstances 1 Hertzog v. Hertzog, 29 Pa. 467 (1857) ; Walker Overseers v. Marion Overseers, 148 Pa. i (1892) ; Clark on Contracts, 4. 2 Offerman v. Packer, 26 Leg. Int. 205. § 11 ESSENTIALS OF CONTRACT. 7 as really existing, and the contract thus ascertained is called an implied one.^ Oral and Written Agreements Compared. 11. It is not necessary that a contract be reduced to writ- ing to make it binding, and if it is in writing it matters not whether the writing be done with ink or lead pencil.* Not only the spoken or written words of the parties, but also their conduct with relation to the matter in question may go to show the intentions of the parties. It is manifest, however, that the best way of securing and preserving evidence of an agreement is by putting it in writing and having it signed and sealed by the contracting parties. Presumption when Oral Agreements are to be Reduced to Writing. 12. It frequently happens that the contractor and owner come together a number of times for the purpose of discuss- ing and determining certain phases 9f the contract. As a result of these preliminary arrangements, disputes often arise as to the several provisions of the contract. When the parties thus meet and agree, and then separate with the understanding that the agreement be reduced to writing, all negotiations and conclusions are presumed to be merged in the written agreement.^ Although certain of the provi- sions be reduced to writing from time to time, yet when the parties show by word or action that they consider such arrangements as preliminary and intend to have the same put into final shape afterwards, the presumption is, that the latter instrument is the contract.^ We show under another head how oral evidence may serve to modify a written contract.'^ 3 Hertzog v. Hertzog, 29 Pa. 467 (1857). 4 Hill V. Scott, 12 Pa. 168 (1849). 5 Russell V. Glass Works, 6 Dist. R. 4S8 (1896). 6 Keystone Surg. Sup. Co. v. Bate, 196 Pa. 566 (1900). 7 See §§ 17 and 18, infra. 8 LAW OF BUILDERS. § 13 EflEect of Partly Written and Partly Printed Agreement. 13. Where the contract is partly written and partly printed, and any ambiguity or conflict arises with reference thereto, the written words are entitled to have more effect given to them in the interpretation of the contract than those which are printed.* Interpretation of Several Written Instruments. 14. Where there are two or more instruments purport- ing to contain the provisions of the contract, or, where, by the terms of a contract, another writing is made a part of it, the two writings will be construed together.® Interpretation of Technical Words. 15. There are many terms used by builders that are totally unintelligible to the average man, and even among different builders there is sometimes an entirely different use of the same term. When such technical or trade terms creep into a contract and give rise to doubt and controversy, oral evi- dence may be introduced to show how such terms are used customarily.^" Ambiguous Clauses and How Intent May be Shown. 16. We shall see later that a written contract cannot as a rule be set aside by an oral agreement, but where certain clauses of a written contract are so vague and ambiguous as to require further explanation, recourse may be had to parol evidence for the purpose of arriving at the true inten- tion of the parties. Thus in a contract to build dams in a creek, parol evidence was held admissible to show the under- standing of the parties, at the time the contract was made, 8 DufReld v. Hue, 129 Pa. 94 (1889) ; Fisher v. Hoffman, 2 W. N C 18 (1874). 9 North & West Br. Ry. Co. v. Swank, 105 Pa. 555 (1884). 10 Brown v. Brooks, 25 Pa. 210 (1855). •'§ 17 ESSENTIALS OP CONTRACT. 9 -of the words, "in a good and substantial manner, as flood ■dams should be built in such streams."^^ ■Variation of Written Agreement 'by Contemporaneous Oral Agree- ment. 17. While the rule is that a written contract cannot be ■set aside by the terms of an oral agreement,^ ^ and especially where the contract is under seal, there are circumstances under which a written contract may be varied, reformed or 5et aside by clear, precise and indubitable evidence of a contemporaneous oral agreement, as to a material subject- matter, by which one of the parties was induced to sign the -writing.^^ Mr. Justice Clark of the Supreme Court of the :State of Pennsylvania in one case coming before him said, ■^'As a general rule, where parties have deliberately put ^;heir engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or ■extent of such engagement it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing; and all oral testimony of a previous colloquium between the -parties, or of conversations or declarations at the time when it was completed, or afterwards — as it would tend, in many -instances, to substitute a new and diflferent contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties — is rejected. But a written agree- 'inent may be modified, explained, reformed or altogether rset aside by parol evidence of an oral promise or under- taking material to the subject-matter of the contract, made Ijy one of the parties at the time of the execution of the ■writing, and which induced the other party to put his name 11 Quigley v. De Haas, 98 Pa. 292 (1881). 12 Bolinger's Ap., i Cent. R. 923 (1885). 13 Sidney School Fur. Co. v. Warsaw School Dist., 130 Pa. 76 (1889) ; 'Walker v. France, 112 Pa. 203 (1886) ; CuUmans v. Lindsey, 114 Pa. 170 »(i886); Greenawault «/. Kohne, 85 Pa. 369 (1877). 10 LAW OP BUILDERS. § 18 to it. . . ."1* It will be noticed that in order that such oral understanding may be admitted to vary a written agreement, the written agreement must have been executed on the faith of the oral agreement.^® Variation of Written Agreement by Subsequent Oral Agreement. i8. While the law is thus loth to allow the admission of parol evidence to vary a written agreement, nevertheless, the parties to such written agreement may subsequently agree to deviate from the same by a subsequent oral agree- ment.^® Abandonment of Written Agreement Where Material Details are Omitted. 19. Where the provisions of a written contract are so vague that nearly all of the details are unprovided for, it was held that the jury trying the case, on suit being brought, might consider such agreement as being altered or an- nulled." Great Deviation from Original Agreement to be Construed as Abandonment. 20. Where parties had entered into a written agreement and had subsequently greatly deviated from the original contract by an oral agreement, it was held that such oral alteration of a written contract draws to its nature the retained stipulations of the old contract and reduces the whole to an oral contract, the written contract to be used no further than to mark the terms and extent of the new stipulations.^^ Such an effect is not produced by a slight or immaterial variation of the written contract. 14 Sid. School Fur. Co. v. Warsaw Sch. Dist., supra. 15 Chartiers Ry. Co. v. Hodgens, 85 Pa. 501 (1877). 16 Woods V. Russell, i Cent. R. 336 (1885); Green v. Paul, 155 Pa. 126 (1893). 17 Green v. Paul, supra. 18 Malone v. Phila., etc., 157 Pa. 430 (1893). § 21 ESSENTIALS OF CONTRACT. 11 PARTIES. Care Necessary in. Naming. 21. In drawing the agreement great care should be exer- cised so as to properly name and designate the contracting parties. If one of the parties is acting as agent, the author- ity under which he acts should be clearly stated. As an illustration of the importance of this matter, we will refer to the fact that it was held under the older laws that a wife would not be liable where the husband contracted in his own name for the building of a house on his wife's land, she never being asked to assume any liability.-'^ Where the wife agreed to the contract made by her husband, know- ingly receiving the goods and assenting to the application of the same to her property, it was held she would be liable.^* While it is true that under § 4 of the act of June 4, 1901, the owner of premises who allows work to be done on his premises without repudiating the same within a given time, will be liable, yet the former position of the courts serves to indicate the importance of having the proper parties named in the contract. The Power of Corporations and Authority of Agent Thereof, Should be Ascertained. 22. In dealing with a corporation, the contractor should inquire whether the organization has been duly incorporated, and whether the work to be performed is such that the cor- poration may legally undertake. He should also be careful to ascertain whether the work was authorized, and whether the agent of the corporation is acting within the scope of his authority and instructions in entering into the contract in question.^^ 19 Wagner et al. v. Henderson et ux., 3 Pa. 248 (1883). 2oBodey v. Thackara, 143 Pa. 171 (1891); Einstein v. Jamison, 95 Pa. 403 (1880). 21 Zearfoss v. F. & M. Institute, 154 Pa. 449 (1893). 12 LAW OF BUILDERS. § 23 PROPERTY. Sufficiency of Description. 23. The exact location and a general description of the property to be erected should be clearly stated in the agree- ment. CONSIDERATION. When, in what Amounts, and to Whom Payments are to be SEade. 24. The agreement should distinctly provide when and in what amounts payments are to be made, as, for instance, whether when the work is completed, or whether an esti- mate is to be made every month, or at certain stages of the work, as when the roof is on, etc. The name of the party to whom payment is to be made should be plainly stated. TIME. Delay. Extension of Time. Penalty. 25. The time by, or within which, the work contemplated is to be completed should be stipulated in the agreement. If it is intended that any particular facts or circumstances shall excuse the performance of the contract within the time mentioned, such conditions should be explicitly named. Under what circumstances an extension of time will be al- lowed and for how long, should also be provided for. The amount of liquidated damages, or penalty, as it is called, which will be incurred for failure to complete within the specified time should be carefully stated. DISPUTES. Provision for Settling. 26. The agreement should contain provisions for the settling of such disputes as may arise, since disputes are apt to arise even with the most carefully prepared contracts. If an arbiter is named, his authority should be clearly defined. If it is intended that disputes shall be referred to arbitrators, the method of selecting them should be indicated. § 27 ESSENTIALS OF CONTRACT. 13 EXTBAS. Defined. 27. All variations from the original contract, involving additional or different work, are known among builders by the short appellation of "extras." We shall under other heads refer to the matter of extras, but desire in this con- nection to refer to such phases of the subject as should be particularly borne in mind in preparing the agreement. Agreement as to Extras Should be in Writing. 28. The manner in which extras are to be ordered and the value of such work determined, is a matter which should be clearly defined in the agreement. Every contractor knows, and many from sad experience, that this is almost invariably the greatest bone of contention in building con- tracts. If it is intended that no extras shall be charged for unless the order for same has been given to the contractor in writing, such provision should be incorporated in the agreement. Waiver, by Conduct, of Provision Bequiring Orders for Extras to be in Writing. 29. The provision that no extras shall be paid for unless ordered in writing by the owner or his agent, may be waived by the conduct of the parties.^^ Agreement as to Extras Ilust be in Writing Where Original Con- tract Must. 30. It has been held that where, under a statute or a municipal ordinance, all municipal contracts are required to be in writing, all variations of such contracts must also be in writing.^^ 22 Moore "v. Carter, 146 Pa. 492 (1892). 2.3 Malone v. Phila., 147 Pa. 416 (1892). 14 LAW OF BUILDERS. §31 Agreement as to Price Before Proceeding. Waiver of. 31. If there is a stipulation in the contract requiring the compensation for extras contemplated to be fixed before proceeding with the work, such agreement must be complied with or the contractor cannot recover. Such agreement may be waived, however, by oral agreement, but in order that there may be a waiver something more is necessary than mere knowledge on the part of the owner of the fact of the extra work being done.^* It must appear that there was at least an agreement to pay what the work is reason- ably worth. PROPOSALS. Effect of Bid. Owner May Use His Discretion in Awarding. 32. Where the owner advertises for proposals to do the work contemplated, a mere bid in answer to such advertise- ment does not constitute a contract. Such advertisement is merely an invitation to those to whom it is addressed, whether the same be individuals or contractors, in general, to deal with the party advertising, and does not correspond to an offer, an acceptance of which will constitute a con- tract.^® It follows, therefore, that an owner asking for bids is not legally bound to award the contract to the lowest bidder as is frequently asserted. He has an undoubted right to in- quire into the fitness and skill of the respective bidders to fulfill the contract, and to award the contract in accordance with his judgment. The owner is at perfect Hberty to determine which of the bidders would be most likely to do faithful, conscientious work and fulfill the terms of the con- tract.^^ This is true whether or not a clause reserving the right to reject any or all bids be incorporated in the adver- 24 Miller v. McCaffrey, 9 Pa. 245 (1848). 25 Clark on Contracts, pp. 60-61. 26 Com. V. Mitchell, 82 Pa. 343-350 (1876). §33 ESSENTIALS OF CONTRACT. 15 tisement, although it is customary and may save much mis- understanding to insert such clause. The party making the bid will not be allowed to show any custom requiring the con- tract to be awarded to the lowest bidder.^'^ The mere statement of the owner or his agent, on the opening of the bids, to the bidder, "You are the lucky man" is merely a recognition that he is the lowest bidder, and is not equivalent to awarding him the contract.^* II. SPECinCATIONS. I}efiiied. Conflict with Agreement. 33. The specifications is a written statement containing a detailed description of the materials to be used and minute directions as to the manner in which the work is to be executed. It is, in fact, a supplemental instrument to the agreement proper, and if there is any conflict between the agreement and the specifications, the former will, as a rule, govern. 27 Leskie v. Hazletine, 155 Pa. 98 (1893). 28 Ibid. CHAPTER II AUTHORITY OF OWNER'S AGENT SECTION. 34. Introduction. Custom, Neces- sity. 35. Importance of being written. 36. Binding force of agent's acts. 37. Decision of owner's agent binding upon both parties. 38. Delay. Caused by agent's acts. 39. Authority extends to sub- contractor. 40. Contractor bound by agree- ment requiring notice of SECTION. defects to be given to archi- tect. 41. Agreement between contract- or and sub-contractor. 42. "Progress certificates.'' Own- er may waive. 43. Agent last employed proper party to give certificate of approval. 44. Agent cannot waive provi- sions of contract. 45. Notice to agent binds owner- Introduction. Custom. Necessity. 34. Where the building operations contemplated are rather extensive, it has become customary for the owner to- designate someone to watch the work as it progresses, inspect the materials used, etc. The necessity for this may be found in the fact that the persons entering into a con- tract with a building contractor cannot be expected, as a rule, to have a practical knowledge of the details of the- work contemplated. There can be no question of the advisability of such an- arrangement. In this way complaints can be made and* disputes settled before the work has progressed to that stage- where the damage done by unsuitable material or defective work has become, perhaps, in a large measure, irreparable. The difificulty is, however, that unless the authority of the one known as agent, superintendent or architect, thus ap- pointed, is clearly defined and limited, his appointment will 16 §35 AUTHORITY OF OWNEE'S AGENT. 17 but add confusion to controversy, and little if any benefit will result from such appointment. It will, therefore, be seen how essential it is that the scope of the agent's author- ity be clearly defined, either in the contract or in a supple- mental instrument. Importance of Being Written. 35. As we have already said, the best means of securing evidence of a contract is not to depend upon the memories of the contracting parties or upon those called to witness the transaction, but rather to reduce such agreement to writing in clear, unambiguous terms and have the same signed and sealed by the parties thereto. Even though the agent's authority be not in writing, however, it may be proven by the words and conduct of the owner and the one alleged to be acting for him. Binding Force of Agent's Acts. 36. The owner may, of course, invest his agent with spe- cial or general authority, be the same of great or small extent; but whatever his defined authority is, the owner will be bound accordingly,^ and he cannot ignore or refuse to ratify the agent's acts, unless, indeed, he can show fraud or collusion between the agent and contractor or sub-con- tractor.^ Decision of Owner's Agent Binding Upon Both Parties. 37. Where there is a contract between the parties in which the authority of the agent is defined, his decision as to whether the various provisions of the contract have been complied with, within the scope of his authority, will be binding upon both the owner and contractor, and his deci- 1 O'Reilly v. Kerns, 52 Pa. 214 (1866) ; Memphis R. R. Co. v. Wilcox, 48 Pa. 161 (1864). 2 Kennedy v. Poor, 151 Pa. 472 (1892). 2 18 LAW OF BUILDERS. §38 sion, if so agreed, will be a bar to an action at law on the contract.* Delay. Caused by Agent's Acts. 38. The agent may so completely represent his principal, the owner, that when a contract provides a time limit for the completion of the work, and the agent's act is respon- sible for the contractor's inability to complete within the time fixed, the contractor will not be Hable for damages for failure to complete at the time specified.* Authority Extends to Sub-Contractor. 39. The authority of the agent may extend to the sub- contractor so as to bind the owner as effectively as if he himself had given the orders. For example, in one case where a building contract pro- vided that a certain part of the work should be done with a particular kind of plaster, and a sub-contractor, with the consent of the architect, who was the owner's agent, substi- tuted an inferior plaster, it was held that the owner could not claim as a set-off to the contract price damages sus- tained by the use of the inferior plaster, since he, through his agent, had agreed with the sub-contractor for its use.^ Contractor Bound by Agreement Requiring Notice of Defects to Be Given to Architect. 40. It has been held that the contractor is bound by an agreement to the effect that "whenever the contractor knows or thinks that the drawings or specifications, or both, or any part of the work will not produce secure construction, it is his duty then to stop the work and to instantly notify the architect of this fact in writing," and the work shall not be resumed "until the contractor receives an order in writing from the achitect, over his own signature as to what is to be done and when he is to proceed." 3 Mitchell V. Dougherty, 7 Dist. R. 348 (1897). 4 White V. Braddock Bor. School Dist., 159 Pa. 201 (1893). 5 Robinson v. Baird, 165 Pa. 505 (1895). §41 AUTHORITY OP OWNER's AGENT. 19 In the case to which we refer it appeared that certain arches fell down after they had been built, due to the owner's plans. The contractor notified the architect in writing of the defect in the plans and received a reply in writing from the architect that the work would be done by others. The contractor never received word to proceed with the work, which was in fact done by other parties. Owing to this defect in the plans and to this controversy, the work was not completed at the time agreed, and the owner claimed the penalty stipulated in the contract for such delay. The court held that if the arches fell and the work was delayed on account of the defective plans of the architect, the penalty provided by the contract for the delay of the work beyond the stipulated time could not be deducted from the amount due on the contract.® Agreement Between Contractor and Sub-Oontraotor. 41. The contractor and sub-contractor may agree to be bound by the decision of the owner's agent with reference to the work done by the latter for the former, and there- fore an award by such agent, declaring the sub-contractor's work forfeited owing to defects, was held to be conclusive. The fact that the contractor had paid some of the employees of the sub-contractor before learning of the decision of the agent does not constitute a waiver of such forfeiture.'' "Progress Certificates." Owner May Waive. 42. It is sometimes provided in the contract that esti- mates of work done at certain stated periods, shall be made by the agent. Such reports are known as "progress certifi- cates." These certificates, however, are not binding upon the owner, so as to constitute a waiver by him of defects in quahty, which were not apparent upon mere inspection, and 6 Murphy v. Nat. Bank, 184 Pa. 208 (ig 7 Faunce v. Burke & Gonder, 16 Pa. 469 (1851); Lauman v. Young, 31 Pa. 306 (1858); North Lebanon R. R. Co. v. McGrann, 33 Pa. 530 (1859); Reynolds v. Caldwell, 51 Pa. 298 (1865). 20 LAW OF BUILDEES. §43 he may waive such certificates and accept other evidence of work done.^ Agent Last Employed Proper Party to Give Certificate of Approval. 43. If the building contract provides that a certificate of approval shall be required to be given by the agent before the payment of the consideration, the agent serving at the time the certificate is called for is the proper party to give the same, and not an agent employed at a prior date.^ If the contract require that the agent give a certificate of approval, the obtaining of such certificate by the contractor will be a pre-requisite to his recovery for work done. If, however, the architect has expressed satisfaction with the work done but subsequently refuses to give such certificate, recovery may be had without the same.^" Agent Cannot Waive Provisions of Contract. 44. If the contract provides that no alterations shall be made except by written order of the architect, the latter cannot orally waive such provision. Furthermore the archi- tect cannot bind the owner for extras by giving oral instruc- tions and afterwards a certificate of approval, if the contract expressly provides that plans for extras must first be sub- mitted to owner.^^ Notice to Agent Binds Owner. 45. Where the contractor believes that certain alterations in the plans will be an improvement and calls the attention of the owner's agent to such changes, which are approved of by the agent, such notice to the agent will be deemed notice to the owner,^2 unless, as we have just seen, the contract expressly provides that orders for extras shall be in writing. 8 Hartupee v. Pittsburg, 97 Pa. 107 (1881). 9 North Leb. R. R. v. McGrann, 33 Pa. 530 (1859). 10 Terra Cotta Co. v. Sharp, 7 Dist. R. 544 (1893). 11 Gillison v. Wanamaker, 140 Pa. 358 (1891). 12 Danville Bridge Co. v. Pomroy & Colony, 15 Pa. 150 (1850) ; Phila. V. Lockhardt, y^ Pa. 211 (1873). CHAPTER III OBLIGATION OF CONTRACTOR TO OWNER I. To Complete as Agreed. (A) Time. SECTION. 46. Introduction. 47. Meaning of "by" and "with- in'' certain time. 48. Where no time is men- tioned. Reasonable time. 49. Time may be extended. so. Extension of time. Extra work. 51. Extension of time. Agree- ment as to defective work. 52. Extension of time. Inclem- ent weather. 53. Delay, caused by owner's act. 54. Delay resulting from con- demnation of material. 55. Delay resulting from change in proposed work. 56. Penalty, or liquidated dam- ages, for delay. 57. When delay will work re- scission of contract. 58. Contractor may not com- plete where contract has been rescinded by delay. (B) Manner. 59. Introduction. 60. Difficulty in determining what is a sufficient com- pliance. 61. Must be workmanlike. 62. Specific performance. 63. "To the satisfaction of owner," 64. "To the satisfaction of owner." Mere caprice. 65. Plans and specifications. Compliance with. 66. Plans and specifications. Valueless work. 67. Plans and specifications. Absence of covenants. 68. Plans and specifications. Contractor may not im- prove upon. 69. Plans and specifications. Sub-contractor. 70. Must be suitable for pur- poses contemplated. 71. Substantial performance suf- ficient. 72. Substantial performance. "As good as the first one.'' 73. Substantial performance. Immaterial defects. Al- lowance for. 74. Effect of interference by owner. 75. Notice necessary where owner furnishes materials. 76. Acceptance of work. Effect of occupying. 77- Acceptance of keys. 21 22 LAW OF BUILDERS. §46 II. Non-Performance. When Excused. SECTION. 78. Interference by owner. 79. Where owner looks on. 80. Plans and specifications. Defects in. 81. Plans and specifications. Alterations in. 82. Omission of duty by owner. 83. "Act of God." Perform- ance. 84. "Act of God." Delay. 85. Inclement weather. 86. Delay by fire. III. Liability for Injury to ok Destruction of Prop- erty. SECTION. 87. Owner's duty to provide safe place. Latent de- fects. 88. Owner's duty to provide safe place. Patent de- fects. 89. Destruction of work. "Act of God." 90. Destruction of work. Con- tractor's negligence. I. TO COMPLETE AS AGREED. (A) TIME. Introduction. 46. There can, of course, be no question that the contrac- tor is plainly under obligation to complete his contract within the time, and in the manner contracted for. We will first consider his obligation to complete within the time specified. Meaning of "By" and "Within" Certain Time. 47. Where a contract provides that the work shall be done "within" a specified time, it would doubtless be held to include the last day mentioned. But where a contract stipulates that the work is to be finished "by" a certain time it has been held to mean before the time mentioned.^ Where No Time is Mentioned. Beasonable Time. 48. When no time is mentioned, the work must be com- pleted within a reasonable time.^ 1 Rankin v. Woodworth, 3 P. & W. 48 (1831) ; Miller v. Phillips, 31 Pa. 218 (1858); The Express Pub. Co. v. The Aldine Press, 126 Pa. 347 (1889). 2 Nunan v. Bourquin, 7 Phila. 239 (1869). §49 OBLIGATION OF CONTRACTOR TO OWNER. 23 Time May be Extended. 49. The parties to the contract may agree to extend the time for the completion of the work. This may either be done by express agreement or be impHed from the conduct of the owner. Extension of Time. Extra Work. 50. When extra work is ordered, the time limit will be deemed to have been extended a reasonable time.* Extension of Time. Agreement as to Defective Work. 51. Where the contract provides that the contractor is to make defective work satisfactory he is entitled to a reason- able time in which to do so.* Extension of Time. Inclement Weather. 52. When the contract does not provide for delay caused by bad weather, this excuse for failure to complete within the time agreed upon must be received very cautiously, and it must clearly appear that the contractor has been in no manner of fault.^ Delay, Caused by Owner's Act. 53. Where failure to complete within the required time has been caused by the act of the owner or his agent, the contractor will not be held liable for such delay.® Delay Besulting from Condemnation of Material. 54. Where the contractor attempts to use unsuitable or improper material and the same is condemned, he will be held liable for delay resulting from his action.'^ 3 Focht V. Rosenbaum, 176 Pa. 14 (1896). 4 Schleicher v. Ins. & Trust Co., 191 Pa. 477 (1899). 5 Miller v. Phillips, 31 Pa. 218 (1858). 6 White V. Braddock Bor. Sch. Dist., 159 Pa. 201 (1893). 7 Ibid. 24 LAW OF BUILDERS. §55 Delay Kesulting from Change in Proposed Work. 55. Where a penalty is fixed by the contract for failure to complete within a certain time and the contractor claims that the delay resulted from a change being made in the proposed work, the owner cannot refuse to allow for such delay on the ground that the changes were not ordered in writing as agreed in the contract.* Penalty, or Liquidated Damages, for Delay. 56. If the contract provide for what is known as a penalty for non-performance within the time agreed upon, the amount specified may be recovered as liquidated damages. By this is meant, the amount named in the contract will be deemed to be the amount which the contracting parties have agreed upon to be the actual amount of damages likely to ■ be sustained by reason of such delay. When, however, it is evident that the amount named is intended by the parties as a penalty for failure to complete as agreed without regard to the loss likely to be suffered, the amount fixed cannot be recovered. The mere fact that the amount is called a pen- alty, however, will not preclude its recovery as liquidated damages,® nor on the other hand will the designating of the amount liquidated damages assure its recovery in case of delay if it was plainly intended as a penalty. When Delay Will Work Bescission of Contract, 57. If a contractor agrees to build a house by a certain time, and at the expiration of such time has not commenced the work, the owner may rescind the contract.^** A defect- ive, negligent and worthless performance is the same as no performance at all.^^ 8 Focht V. Rosenbaum, 176 Pa. 14 (1896). 9 Clements v. Schuylkill, etc., R. R. Co., 132 Pa. 445 (1890); Curry V. Larer, 7 Pa. 470 (1848); Shreve v. Brereton, 51 Pa. 175 (1865); Penny- packer V. Jones, 106 Pa. 237 (1884); Wilkinson v. CoUey, 164 Pa. 35 (1894). ID Miller v. Phillips, 31 Pa. 218. it Ibid. § 58 OBLIGATION OF CONTRACTOR TO OWNER. 25 Contractor May not Complete Where Contract has Been Rescinded by Delay. 58. Where the work is negligently done, so as to be con- sidered no performance at all, and notice is given of rescis- sion, the contractor cannot afterwards by a subsequent attempt to complete, make the owner liable for work done.^* (B) MANNER. Introduction. 59. The question as to what constitutes a sufficient com- pliance with the terms of the contract, especially as to the nature of the work, has given rise to much litigation, and is one which every contractor and owner should give careful consideration in order that they may avoid needless con- troversy and expense. We will give the matter some atten- tion in this connection and will consider it further under a subsequent head. Difficulty in Determining What is a Sufficient Compliance. 60. It is sometimes quite difficult to determine what is a sufficient compliance with the contract. In order that the contractor may be held to have done his part, must he have strictly followed the' contract, or will a reasonable per- formance be deemed sufficient, allowance to be made, of course, for immaterial defects in the work? These ques- tions have been repeatedly considered by the courts of the state, and we herewith submit some of the adjudicated cases, and especially those which have been considered by the Supreme Court. Must be Workmanlike. 61. There is one general rule which must always be kept in mind, and that is that there is an implied condition in every working contract that the work shall be performed in a workmanHke manner.^^ 12 Miller v. Phillips, 31 Pa. 218. 13 Wade V. Haycock, 25 Pa. 382 (1855). 26 LAW OF BUILDERS. §62 Specific Performance. 62. It seems that in this state there is no such thing as a right to the specific performance of an ordinary building contract, or, in other words, that the courts will not order and decree that a contractor for the building of a house do the specific thing he contracted to do.^* The reason for this position of the courts is found in the fact that the party injured has an adequate remedy at law in the nature of an action for damages for breach of the contract. It has been held, however, that where a railroad company agreed in the purchase of land, to build a guard fence, an order for specific performance of the contract to build the fence will be issued by a court of equity, on the ground that an action for damages would not be an adequate remedy, and would not settle the controversy.^^ "To the Satisfaction of Owner." 63. If a contract provides that the work is to be done to the satisfaction of the owner or his agent, there can be no recovery if the work is not in fact done to his satisfaction.^® "To the Satisfaction of Owner." Mere Caprice. 64. While, as we have just stated, when the contract so provides, the work must be done to the satisfaction of the owner, yet he may not withhold his approval from mere caprice, and if he insists on doing so, recovery may be had notwithstanding his refusal to express his satisfaction with the work.^'' i4Winton Borough v. Mulherin, 3 Lack. L. N. 264 (1897). 15 Kelly V. Nypano R. R., 23 Pa. C. C. R. 177 (1898). 16 Singerly v. Thayer, 108 Pa. 291 (1885); Krum v. Mersher, 116 Pa> 17 (1887); Stutz V. Coal & Coke Co., 131 Pa. 267 (1890); Howard v. Smedley, 140 Pa. 81 (1891). 17 Singerly v. Thayer, supra; Lumber Co. v. Sharp, igo Pa. 256 (1899). §65 OBLIGATION OF CONTRACTOR TO OWNER. 27 Flans and Specifications. Compliance with. 65. It is a well established rule that where the contract provides that the work shall be executed in accordance with the plans and specifications, the contractor has no alter- native.^* Thus where the owner of a wharf contracts for its exten- sion and furnishes the plans and specifications to the contractor, who builds it in accordance therewith, the latter is not liable for its giving way because of defects in the plans.^* Flans and Specifications. Valueless Work. 66. If the contractor has done his part and executed the work in strict accord with the plans and specifications fur- nished him, he cannot be held responsible if the work when completed is valueless, and he may recover the contract price for the work done. But, on the other hand, even if the plans are defective, the contractor may not negligently do his work and take refuge behind the fact that the work would not have stood the test even if he had carefully executed his work, owing to defects in the plans. He must follow the plans and specifications if he would recover for work done.^° Flans and Specifications. Absence of Covenants. 67. Where in a contract with a borough it was provided that a reservoir should be built according to plans and specifications stated in the contract, but such contract con- tained no covenant as to results or suitability of the work, although there was a clause providing that "the work con- templated ... is the construction of a water-tight reser- voir," the contractor is not under a responsibility or duty to 18 Muckle V. Payne, 198 Pa. 444 (1901.) ipBeswick v. Piatt, 140 Pa. 28 (1891). 20 Loundsberry v. Eastwick, 3 Phila. 371 (1859) ; Wade v. Haycock, 25 Pa. 382 (i8ss>. 28 LAW OP BUILDEKS. § 68 make the reservoir water-tight. The contractor has no dis- cretion in the matter, but must follow the plans and specifi- cations furnished to him.^^ Plans and Specifications. Contractor May Not Improve Upon. 68. In the building of the Queen Lane Reservoir in the city of Philadelphia, the contract was to be performed in strict conformity with the plans and specifications furnished by the city expert, except as changed by the city officials. The reservoir was in fact completed in accordance with the instructions, but owing to the micaceous bottom of the locality, the reservoir afterwards leaked. Notwithstanding a clause in the contract to the effect that "all work necessary to make a complete and perfect reservoir ready for use" was to be done, it was held that the contractor had no alter- native than to complete in accordance with plans furnished him. Justice Fell stated, "If the contractor had thought it wise to depart from the plans and had in fact done so and had built a better reservoir, he could have recovered nothing."^^ ■ It might be well to call attention to the fact that, if, owing to the nature of the ground (as, for instance, where the ground gave way from time to time), it became impossible for the contractor to complete in accordance with the plans, he could not have recovered for any work done, unless the defect in the ground was of such a latent nature that it could not have been discovered before proceeding with the work. But in the case just cited, the contractor did complete in conformity with the instructions, the leakage being in no wise due to his act or omission. Plans and Specifications. Sub-Contractor. 69. Where a part of work is sub-let by the contractor with the provision that the specifications annexed to the principal 21 Harlow & Co. v. Homestead, 194 Pa. 57 (1899). 22 Filbert et al. v. Phila., 181 Pa. 530 (1897). § 70 OBLIGATION OF CONTKACTOK TO OWNER. 29 contract, should be considered "as if hereto attached," it was held that the sub-contractor was bound in like manner with the contractor.^* Must be Suitable for Purposes Contemplated. 70. While, as we have just seen, the contractor may recover when he has followed the plans and specifications even though the wprk be valueless, yet, on the other hand, when the owner enters into a contract with a builder, the reasonable presumption is that he has definite objects in view. Therefore, it has been held that if the work done by the contractor, contrary to plans, is radically defective and unsuitable for the purpose intended, there can be no recovery, even though the work done be of some value to the owner.^* Substantial Performance Sufficient. 71. The cases clearly decide that a substantial perform- ance is all that is required, allowance being made, of course, for the immaterial defects.^^ There can be no recovery, however, unless the work was done and materials furnished substantially according to the plans and specifications.^^ Substantial Performance. "As Good as the First One." 72. Where the contractor undertook to build and equip a mill to be "as good as the first one," which had burned down, it was held that it was not necessary to equip with a number of old machines like those in the old mill that were not used, the same having been replaced by newer appliances before the fire.^*^ 23 Brown v. Decker, 142 Pa. 640 (1891). 24 Miller v. Phillips, 31 Pa. 218 (1858); Wade v. Haycock, 25 Pa. 382 (I8SS). 25 Gibbs V. Girardville School Dist., 195 Pa. 396 (1900) ; Messner v. Lancaster Co., 23 Pa. 291 (1854); Moore v. Carter, 146 Pa. 492 (1892); Snodgrass v. Gavit, 28 Pa. 221 (1857). 26 Gibbs V. Girardville School Dist, 195 Pa. 396 (1900). 27 Ellis V. Lane, 85 Pa. 265 (1897). 30 LAW OF BUILDERS. § 73 Substantial Performance. Immaterial Defects. Allowance for. 73. A contract for building a warehouse contained a pro- vision "to fill in all the brick-work with mortar, or what is usually termed flushing in or filling in all the openings at each corner of the bricks with mortar, as they are laid." The flushing in was not done. The work, however, was accepted and used. It was not contended that the work was entirely unfit for the original purpose, though, in fact, less fit than it was stipulated to be. It was held by the court that the contractor might recover his demand less a "sum sufficient to compensate his defective execution of the contract."^® Effect of Interference by Owner. 74. We have seen that the contractor cannot recover any- thing on the contract price if the work done is materially defective, entirely unsuited for the purposes contemplated, or, where the contract so provides, is not approved by the owner. However, where the owner interferes with the con- tractor in the execution of his contract, the latter may recover for the work actually completed. In one case it was held, "When a contract is entire, before any recovery can be had of the consideration money, the plaintiff or con- tractor must prove that he has performed, or is ready to perform his part of the contract, or that the performance was prevented by the owner. "^^ Notice Necessary Where Owner Furnislies Materials. 75. Where, by the terms of the contract, the owner is to furnish materials, and through his neglect or failure to do so, the contractor does not complete within the time stipulated, he cannot refuse to pay for work actually done, and he cannot claim that the contractor should have notified 28 Liggett V. Smith, 3 Watts, 331 (1834); Danville Bridge Co. v. Pomroy & Colony, 15 Pa. 151 (1850). 29 Hall V. Rupley, 10 Pa. 231 (1849). §76 OBLIGATION OF CONTRACTOR TO OWNER. 31 him of the materials needed. "The presumption is that the owner knew or he ought to have known, if he had taken the trouble to inquire, what would be required in the erection of the building.''^" Acceptance of Work. Effect of Occupyingf. 76. Where the employer accepts the work and makes use of it after completion, he will generally be held to have waived defects in the performance.*^ Moving into a house after completion may be admitted as testimony tending to show acceptance.*^ The mere fact that the owner has taken possession of the work, however, has been held under some circumstances not to prevent him from setting up non- performance on the part of the contractor.** Acceptance of Keys. yj. The mere acceptance of the keys to a house is not conclusive evidence of the acceptance of the work.** II. NON-PERPOIimANCE. WHEN EXCUSED. Interference by Owner. 78. If the owner of a building interferes with the con- tractor and directs the performance of the work, the latter will not be liable for any delay or defects resulting there- from.*^ Where Owner Looks On. 79. The mere fact that the owner was present when cer- tain deviations were made from the plans and specifications 30 Hall V. Rupley, 10 Pa. 231 (1849). 31 Beswick v. Piatt, 140 Pa. 28 (1891). 32 Crawford et al. v. McKinney, 165 Pa. 609 (1895). 33 Hartupee v. Pittsburg, 97 Pa. 107 (1881). 34 Crawford et al. v. McKinney, supra. 35 Lilly V. Person, 168 Pa. 219 (1895); Witmarr v. Wagner, 4 Luz. Leg. Reg. 252; Groves v. Donaldson, 15 Pa. 128 (1850); Rohrman z/. Steese, 9 Phila. l8s (1874). 32 LAW OF BUILDERS. § 80 does not excuse the contractor from compliance with his contract, unless, of course, there be evidence from which the owner's consent may be implied. For instance, where there is a plain and palpable variance from the plans agreed upon, made in the presence of the owner in such a manner that he must have seen it and understood its efifect, it has been held that his silence is a fact which should be submitted to the jury as presumptive evidence that the contract had been previously changed by mutual consent. It should be observed that this variance must be a palpable one. The language of one of our courts in which a case of this kind was considered was in part as follows : "A variance from the plans apparently unimportant at first may have an effect upon the building, as a whole job, which no one but an experienced carpenter would be able to anticipate. A person who gets a house put up under an entire contract is not bound to understand the business. He confides in the skill as well as in the honesty of the man he employs. He need not give directions, and, in truth, has no right to do so."^' Plans and Specifications. Defects in. 80. If the delay in completing the building is due to de- fects in the specifications, which defects are of such a nature as to require the making of new plans and specifications, the contractor will not be held liable for such delay.^'^ Flans and Specifications. Alterations in. 81. A contract made provisions for damages for delay, and further provided that any change in the plans "either in quantity or quality of the work" should be executed by the contractor "without holding the contract as violated or 36 Bryant v. Stilwell, 24 Pa. 314 (1885). 37 White V. Braddock Bor. Sch. Dist., 159 Pa. 201 (1893); Pitts. I. & S. Eng. Co. V. Nat. Tube Works, 184 Pa. 251 (1898). § 82 OBLIGATION OF CONTRACTOR TO OWNER! 33 void in any other respect." A delay occurred, owing to a change in the material ordered by the owner. The owner sought to charge the contractor with delay, alleging, that under the clause just quoted, as to changes, the contractor was liable for the delay, contending that the time fixed in the contract for completion must still govern and that no extension of time need be granted. It was held by the court that the contractor was not responsible for delay necessarily resulting from alterations in the work, directed to be made by the owner.^* Omission of Duty by Owner. 82. When the owner has failed to do certain things which he had agreed to do, the contractor will have a valid excuse for non-performance of the contract or for failure to perform within the time agreed upon, according to the nature of the neglect complained of. For example, where the owner neglected to put in a siding as he agreed,^® to furnish build- ing lines,*" or to have the foundations ready at the time stipulated,*^ the contractor would not be liable for .delay resulting therefrom. "Act of God." Performance. 83. While, as we have just seen, it is necessary that there be a substantial performance, only, of a contract, yet nothing will excuse performance, if such performance be within the power of man.*^ Cases sometimes arise where the contractor is unable to perform his part of the contract, in the manner or within the time he stipulated for, owing to what are characterized in the law as acts of God. By acts of God we are to under- 38 Lilly V. Person, 168 Pa. 219 (1895). 39 Heckestein v. Kelly, 139 Pa. 201 (1891). 40 White V. Braddock Bor. Sch. Dist, 159 Pa. 201 (1893). 41 Pitts. I. & S. Eng. Co. V. Nat. Tube Works, 184 Pa. 251 (1898). _ 42 Miller v. Phillips, 31 Pa. 218 (1858). 3 34 LAW OP BUILDERS. § 84 stand severe storms, lightning, wind, earthquakes, etc. Human agency must not have entered in at all, and there- fore the contractor cannot fall back on this excuse for his non-performance if the work has become impossible through any act of his own.*^ "Act of God." Delay. 84. Where the contractor is unable to complete his work within the time limit owing to an act of God, he will not be liable for penalty for such delay, provided, of course, as we have shown, it is an impossibility for him to complete within the time contracted for. However, though the act of God may excuse performance within the time specified, yet the contract must be performed as soon after the time has expired as practicable.** Inclement Weather. See § S3. Belay, by Fire. 86. An agreement provided a penalty for delay, but also contained a clause as follows : "Delay occasioned by fire, hurricane or unforeseen calamity excepted." Fire occurred in the foundry of the contractor, owing to the negligence of an agent of the contractor. The court held that the word fire in the exceptions included fire caused by the contractor's negligence, although the case would be different if the con- tractor had been wilfully negligent, as, for instance, by fail- ing to have a watchman on duty, or having no appliance to extinguish fire when occurring. If the fire occurred by reason of the watchman's negligence, the contractor would have the benefit of the exceptions in the contract and would not be obliged to pay damages for delay occasioned thereby. The 43 Levering v. Buck Mt. Coal Co., S4 Pa. 291 (1867). 44 Meyer v. Kirby, 2 Pears. 64 (1869). § 87 OBLIGATION OP CONTRACTOR TO OWNER. 35 District Court held that it was evident that the parties in- tended to except all fires. "Like a policy of insurance, the exception was intended to protect against those fires often termed accidents, because resulting from the carelessness of others, over which it is impossible for the owner to keep watch. Either exceptions or insurance would be almost •useless if limited to fires by the act of God or those that are purely accidental."*^ III. LIABILITY FOB IITJTTRY TO OB. DESTRTJCTION OF PROPERTY. Owner's Duty to Provide Safe Place. Latent Defects. 87. The general principle is, that the owner is obliged to provide a reasonably safe place for the contractor to execute the work. If the owner knows of any latent defects in the ground or in the foundations already laid, etc., he is under a legal duty to advise the contractor of the existence of the same before the latter starts upon the work, and if he fails to do so, he cannot hold the contractor liable for non-per- formance in accordance with the stipulations of the contract; provided, however, that such failure on the contractor's part arises from and is due to the neglect of the owner to advise him of such defect.*^ ■Owner's Duty to Provide Safe Place. Patent Defects. 88. With regard to patent defects, the case is entirely different. By patent defects are meant such defects as are evident and apparent to ordinary observation. When the contractor undertakes to build under such circumstances, the law presumes that he does so with full knowledge of the situation. He must bear all loss resulting from such defects and he cannot set up the same as an excuse for non-per- formance.*'^ 45 Cumberland Steamship Co. v. Dialogue, i W. N. C. 475 (1875). 46Sinnott v. Mullin, 82 Pa, 333 (1876). 47 Ibid. 36 LAW or BUILDERS. § 89 Destruction of Work. "Act of God." 89. Where the work is destroyed by his own negligence, unavoidable accident or act of God, the contractor, in the absence of any agreement to the contrary, must assume the loss, and cannot offer any such facts as an excuse for non- performance, although, as we have seen, he will be entitled to a reasonable time after the expiration of the time fixed in the contract, in which to complete the work, provided he has not been in any fault himself.*® Furthermore, in case of such destruction, he must return any money advanced on the work if he does not go ahead and complete the build- ing.*® Mr. Justice Green, of our Supreme Court, has said: "Thus the total collapse of the building from defects in the foundation or from violent tempest, or its destruction by fire while in the course of construction, will not relieve the contractor from his obligation to finish the building and deliver it in a complete condition, to the owner, unless such contingencies have been specially excepted by the terms of the contract."^" Destruction of Work. Contractor's Negligence. 90. Where a plumber and his workmen were repairing a roof of a house and the house was set on fire from the sparks of a fire-pot, it was held that there was a fair presumption that the fire was caused by the negligence of the workmen, and that the defendant was not relieved from liability because he furnished proper appliances and competent workmen; and it was further held that the declarations of the defend- ant's workmen, made while the fire was in progress, as to the cause of the fire, were admissible in evidence to charge the defendant with liability.^^ 48 Murphy v. Nat. Bank, 184 Pa. 217 (1898). 49 Meyer v. Kirby, 2 Pears. 64 (1869). 50 Murphy v. Nat. Bank, supra. 51 Shafer v. Lacock, 168 Pa. 497 (189s). CHAPTER IV RECOVERY FOR WORK DONE SECTION. 91. Introduction. 92. Severable contract. Defined. 93. Entire contract. Defined. 94. Part performance. No recov- ery. Abandonment of con- tract. 95. Interference of owner. 96. When owner dispenses with entire performance. 97. Substantial performance. Minor defects. 98. Certificate of approval of owner or his agent. When necessary. 99. Certificate of approval. When withheld from mere caprice. SECTION. 100. Certificate of approval. When withheld by owner's instruction. 101. Certificate of approval. Amount due not stated. 102. Agent's decision binding upon owner. 103. No recovery without submis- sion of work to party desig- nated in agreement. Ex- ceptions. 104. Part payments. Merely ad- vances. 105. Meaning of "within" certain figures. Introduction. 91. Before a conclusion can be reached as to when an action may be brought for work done, we must determine the distinction existing in the law between a severable con- tract and an entire contract. Severable Contract. Defined. 92. Where it is evident that the work is made up of sev- eral separate, distinct pieces of work, as in the case of dififerent alterations or several dififerent branches of work, the contract will generally be construed as being severable, or, as it is sometimes called, divisible,^ and in such cases the I Fullmer v. Poust, 155 Pa. 275 (1893); Quigley v. DeHaas, 82 Pa. 267 (1876). 37 38 LAW OF BUILDERS. § 93 contractor may demand payment for work done as soon as any distinct part of the work is completed. Thus it has been held that where a contract consists of several items with a price apportioned to each, it will usually be considered severable.- Eutire Contract. Defined. 93. While it is sometimes quite difficult to determine what constitutes an entire contract and what a severable contract, the more reasonable rule, and especially so far as building contracts are concerned, would seem to be, that it depends entirely upon the intention of the parties as evi- denced by their agreement, their acts and the circumstances of the case. Therefore, where the agreement and specifica- tions provide for the whole work to be executed, where the work is under the control of the contractor, where the consideration is entire, where it is provided that a certain percentage of the consideration shall be retained until final payment, or where "progress certificates" are to be given from time to time, these circumstances will go a long way toward proving that the contract was intended to be entire.® It will thus be seen that the divisibility of a contract de- pends almost entirely upon the intention of the parties and not upon the nature of the work. The severable nature of the latter may assist in determining the intention, but will not overcome the same.* The contract may be construed to be entire even though there are several distinct items of work contemplated.^ 2 Gill V. Johnstown Lumber Co., 151 Pa. 534 (1892). sRugg V. Moore, no Pa. 236 (1885); Lucesco Oil Co. v. Brewer, 66 Pa. 351 (1870). 4Shinn v. Bodine, 60 Pa. 182 (1869); Easton v. Jones, 193 Pa. 147 (1899). S Gill V. Johnstown Lum. Co., 151 Pa. 534 (1892). § 94 RECOVEKY FOR WORK DONE. 39 Fart Performance. No Becovery. Abandonment of Contract. 94. It is well settled that in an entire, or indivisible con- tract, where the contractor voluntarily abandons the work, without fault on the part of the employer, he cannot recover a pro rata compensation for work actually done.® "To per- mit a man to recover for part performance of an entire con- tract, or to permit him to recover on his agreement, when he has failed to perform, would tend to demoralize the whole country. . . . No plaintiff ought ever to be permitted to recover for part performance of his engagements unless pre- vented by the defendant from performing, or so trifled with that it becomes his duty to declare the contract at an end."'^ Interference of Owner. 95. If the owner interferes with the contractor so as to prevent the latter's performance, the contractor will not be liable for non-performance, and he may sue for the price of work already done.® When Owner Dispenses with Entire Performance. 96. If the owner dispenses with entire performance, the contractor may recover in an action on the contract for work actually done.® Substantial Performance. Minor Defects. 97. We have already shown, under another head, that a substantial performance of an entire contract is all that is necessary, and that if there are minor defects, deductions must be made for them from the contract price.^** If the 6 Wade v. Haycock, 25 Pa. 382 (1855)- 7 Martin v. Shoenberger, 8 W. & S. 367 (184S); Gillespie Tool Co. V. Wilson, 123 Pa. 19 (1888); Hartman v. Meighan, 171 Pa. 46 (1895). 8 Hall V. Rupley, 10 Pa. 231 (1849) ; Wade v. Haycock, supra, 9Wilhelm v. Caul, 2 W. & S. 26 (1841); Danville Bridge Co. v. Pomroy & Colony, 15 Pa. 151 (1850). ID See §72; Monocacy Bridge Co. v. Am. I. & Bridge Co., 83 Pa. 517 (1877); Becker v. Phila., 16 Atl. R. 32S; Austin v. Hughes, S Kulp, 225. 40 LAW OF BUILDERS. § 98 owner intends to demand deductions for defective work he must make his demand within a reasonable time.^^ Certificate of Approval of Owner or his Agent. When Necessary. 98. When the owner, acting in good faith, refuses to accept the work on the ground of non-compHance with the agreement, the contractor cannot recover if the work is to be done subject to the approval of the owner.^^ Recovery may be had without an architect's certificate called for in the contract, if the architect has expressed satisfaction with the work done, but subsequently arbitrarily refuses to give the certificate.^* Certificate of Approval. When Withheld from Mere Caprice. 99. A stipulation that a certificate of approval shall be given by the owner prior to payment is intended for the owner's protection, but he cannot withhold the same from mere caprice and thus evade an honest payment of the price.^* Certificate of Approval. When Withheld by Owner's Instruction. 100. When an agent withholds a certificate of approval by instruction of the owner the builder may recover without such certificate.^''' Certificate of Approval. Amount Due not Stated. 101. If the architect's certificate states that the contractor is "entitled to a payment, being the last payment on con- tract price" "less credit for defective plastering," the con- II Normal Sch. v. Hauck, 2 W. N. C. 86 (187s). izSingerly v. Thayer, 108 Pa. 291 (1885). 13 Terra Cotta Lum Co. v. Sharp, 190 Pa. 256 (1899). 14 Ibid. iSWhelen v. Boyd, 114 Pa. 228 (1886). § 102 RECOVERY FOR WORK DONE. 41 tractor may sue to recover the amount due, although no par- ticular sum is stated in the certificate.^® J^geut's Becision Binding TJpon Owner. 102. The owner cannot, in the absence of fraud, show that the work was not done in accordance with the contract, if the architect has certified to its performance.^^ If the agree- ment so stipulates, the agent may be the judge of both the questions of law and of fact.^® The right of trial by jury, however, is not to be taken away by implication.^* No Becovery Without Submission of Work to Party Designated in Agreement. Exceptions. 103. Where a party named is to be the arbiter of the C(jntractor's compliance with the contract, his decision is an indispensable condition unless it be shown that he is dead, absent, or has refused to act, or that the other party by the acceptance of the work, or otherwise, had waived the decision of the arbiter.^" Part Pajrments. Merely Advances. 104. When a building contract provides that the whole building shall be constructed for a certain sum, and that a specified sum shall be paid upon the completion of the foundation walls, a second specified sum when the roof is on, a third sum when the plastering is completed, and the bal- ance when the house is completed, such payments are dis- tinct and separate, to be considered simply as advances on the entire contract price, and they may be sued for as they mature.^^ It will therefore be seen that there 16 Robinson v. Baird, 165 Pa. SOS (1895)- 17 Fulton V. Peters, 137 Pa. 613 (1890). 18 Connor v. Simpson, 14 W. N. C. 31S. igLauman v. Young, 31 Pa. 306 (1858). :2oQuigley v. DeHaas, 82 Pa. 267 (1876). 21 Crawford et al. v. McKinney, i6s Pa. 605 (1895). 42 LAW OF BUILDEKS. §105 may be provision for partial payments, even in entire contracts.^^ Meaning of "Within" Certain Figures. 105. A contract provided that the owner was to select tiles "within" certain figures. All disputes were to be sub- mitted to an architect. The owner selected tiles at a price below that named in the contract and the architect in- structed the sub-contractor to proceed. The contractor endeavored to recover the price named in the contract. It was held that recovery could only be had for the price of the tiles selected by the owner.^^ 22 Easton v. Jones, 193 Pa. 147 (1899). 2Z Hanson et al. v. Reeves et al., 160 Pa. 134 (1894). CHAPTER V MECHANICS LIENS In General. io6. Introduction. 107. Defined. 108. Legislation with reference to. Act of June 4, 1901. 109. Waiver of right to file. Steps necessary to bind others, no. Waiver. Subsequent with- drawal of agreement not to enter lien. 111. Giving of credit does not operate as waiver of right to file lien. 112. Release of lien. Effect of. Who May Acquire. 113. Who may acquire lien. 114. Who may not acquire lien. 115. Sub-contractors. 116. Partial contractors. For material part of work. Lessee. 117. Power of lessee to im- pose. Assignment of Claim. 118. Power of claimant to as- sign. Labor and Materials for WHICH Lien May be Had. 119. For what labor. Altera- tions amounting to less than $100. SECTION. 120. New structure and altera- tion, distinguished. 121. For removal or demolition of structure. .122. Unfinished building. De- struction of work. 123. For materials not used in the building. 124. Labor or materials must be furnished on the credit of the building. Property Subject to Lien. 125. Defined. Under act of June 4, 1901. 126. Removal of property. Ef- fect of. 127. Public property and that of lunatics, etc., excepted. 128. Curtilage defined. Steps Necessary to Secure. 129. Alterations. As to sub- contractor. 130. Necessity of consent of owner to tenant, to bind property. 131. Notice of intention to file. Sub-contractor. 132. Mode of making service of notice. Sub-contractor. 133. When owner may retain part of contract price. 134. Time within which all claims must be filed. 43 44 LAW OF BUILDERS. §106 sepa rate con- SECTION. 135. Several tracts. 136. Contents of claim. 137. Affidavit to claim. 138. Notice to owner of having filed claim. 139. Notice necessary when contract impairs rights of claimants. 140. Sub-contractors bound by terms of contract filed. 141. Giving of credit merely postpones proceedings. 142. Claimant's right to insur- ance in case of fire. Effect of Lien. Judgment and Execution Thereon. 143. Date of lien. 144. Priority and force of lien. 145. Judgment and execution. 146. Stay of execution. 147. Conclusion. IN GENERAL. Introduction. 106. The mechanics' lien laws are intended as a special protection to persons contracting to furnish labor or ma- terials for the erection or alteration of a structure. With- out such laws, the judgment creditors of the owner might levy upon and sell the new or improved property before the builder could secure a judgment for his claim, with the effect that the latter might be unable to secure compensation for the services he may have furnished or the money he may have expended. It is evident that without some such protection, building operations would be incalculably hampered. While such liens are now looked upon merely as a special protection to building contractors, they were, in fact, originally proposed as a means of enabling a poor man to secure a contractor to undertake the building of his home. Defined. 107. With the idea, therefore, of afifording adequate pro- tection to the building contractor the various mechanics' lien laws were passed from time to time. Inasmuch as mechanics' liens are a statutory creation, alteration or amendment thereto or a complete repeal of such laws, may be made, even after contracts have been made, work done §108 mechanics' liens. 45 and the lien actually secured.^ In an earlier case than that which we cite, a contrary opinion was rendered,^ but the former statement is probably the law at present. In Trickett on Liens it is said, "The mechanics' lien law is a species of class legislation, giving special remedies, the scope of which should not be unnecessarily enlarged by a too liberal construction."^ Legislation with Befereuce To. Act June 4, 1901. io8. Innumerable contingencies, arising from time to time, brought forth a great number of statutes, modifying, enlarging or repealing those already enacted. These acts became so numerous that it required the utmost care to determine just what rights the contractor had, as well as to determine what duties he had to observe, to enable him to avail himself of such rights. The State Legislature in 1901 passed an act which prac- tically inaugurates a complete change in the mechanics' lien laws of the State. Only a short time having elapsed since its passage, no decisions on any of its provisions can be given. Neither is it the author's intention to give a com- plete treatise on such liens. We shall, however, dwell briefly upon the several provisions of the act referred to, endeavoring to present them in such a manner that the reader may readily determine just what the act does provide with reference to any particular circumstance that may arise in his work. We shall not touch upon the question of pleading under the said act, as it explicitly outlines all pro- ceedings thereunder. As this work is not intended primarily for the practitioner, we shall not insert the act in its entirety at this place, but have placed it in the appendix to this volume, for the convenience of those desiring to minutely examine it. 1 Best V. Baumgardner, 122 Pa. 17 (1888). 2 Fahnestock v. Wilson, 95 Pa. 301 (1880). 3 Trickett on Liens, vol. 3, § i. 46 LAW OF BUILDERS. § 109 Waiver of Bight to File. Steps Necessary to Bind Others. 109. It sometimes happens that an agreement is made between the owner and the contractor wherein the con- tractor waives the privilege of fihng a Hen for labor or ma- terials furnished. Inasmuch as sub-contractors likewise have the privilege of filing a lien, as we shall show, it is manifest that such an agreement to waive the right to file a lien would not be fairly binding upon such sub-contractors as had no knowledge of such agreement to waive. In this connection the act of June 4, 1901, provides in § 15: "The right to file a claim may be waived by agree- ment between the claimant and the party with whom he contracts, or by any conduct which operates to equitably estop the claimant. If the legal effect of the contract "be- tween the owner and the contractor is, that no claim shall be filed by anyone, such provision shall be binding; but the only admissible evidence thereof, as against a sub-contractor, shall be proof of actual notice thereof to him, before any labor or materials furnished by him; or proof that a duly written and signed contract to that efifect has been filed in the office of the prothonotary of the court of common pleas of the county or counties where the structure or other im- provement is situate, prior to the commencement of the work upon the ground, or within ten days after the execu- tion of the principal contract, or not less than ten days prior to the contract with the claimant."* The act of April 24, 1903, in amending this section pro- vides that the prothonotary shall index the same, making the contractor the defendant and the owner the plaintiff.^ Waiver. Subsequent Withdrawal of Agreement Not to Enter Lien. 1 10. If, notwithstanding such waiver of right to enter lien, the parties agree that a lien may be filed, § 15 of the act under consideration, further provides, "The only ad- 4 Act of June 4, 1901, P. L. 431. 5 Act of April 24, 1903, P. L. 297. §111 mechanics' liens. 47 missible evidence that such a provision has, notwithstanding its filing, been waived in favor of the claimant, shall be a written agreement to that effect, signed by all those who, under the contract, are interested antagonistically to the claimant's allegation." Giving of Credit Does not Operate as Waiver of Kight to File Lien. 111. Section 15 of the act to which we have just been referring provides that the giving of credit or receiving of collateral security by the claimant shall not operate to waive his right to file a claim, but shall merely delay voluntary proceedings thereon by the claimant until the time of credit shall have expired. Release of Lien. Effect of. 1 12. In case a release is signed, by the claimant, of a lien had, said release will only apply, according to said § 15, to labor or materials already furnished and will not preclude claimant from filing a lien for labor or materials subse- quently furnished, unless it shall appear thereby that it was intended by such release to apply to both past and future claims, in which event the release will, of course, govern, so as to fully carry out the intent of the parties. WHO MAY ACQTJIBE. Who May Acquire Lien. 113. Not only the persons contracting directly with the owner or his agent may acquire a lien, but likewise certain sub-contractors. Section i of the act of 1901 defines a contractor to be one who by contract or agreement, express or implied, with the owner, or one who acts for the owner, plans or superintends the structure or other improvement, or any part thereof; or furnishes labor, skill or superintend- ence thereto; or supplies or hauls materials, reasonably nec- essary for and actually used therein, or any or all of them. 48 LAW or BUILDERS. §11'* A sub-contractor, as we have seen, is one who, by con- tract or agreement, express or implied, with the contractor or with one who acts for him, undertakes to do certain of the things enumerated in the definition of a contractor. It will thus be seen that a lien may be filed by either the- person contracting directly with the owner, or by the person contracting with the contractor. The question which natur- ally might arise is, whether the sub-contractor of the sub- contractor, and so on indefinitely, may file a lien for labor or material furnished. This question we will consider a little later. Who May Not Acquire Lien. 1 14. "The contractor, whether for the entire construction, or only for some primary part of a building, may confer on those with whom he contracts to do parts of the work em- braced in his contract, the right to liens on the building."® On the other hand under § i of the act of June 4, 1901, a. person contracting with a material man who has the con- tract to furnish the material for a building, may not have a lien. The same section provides that an architect cannot file a Uen for work done by him under a contract with the contractor, although he may for work done by him under contract with the owner. The contractor who plans or superintends the erection of a structure or furnishes the labor therefor, is not, in the eyes of the law, a mere work- man, but rather an agent for the owner, and, thus repre- senting him, has power, by contract to subject the building- to a lien for work or labor procured by him.'' While it is- true that a material man is said to be a contractor in the act of 1901, he does not as such stand in a representative capac- ity, and the act, as we have just seen, specifically precludes- those who contract with him from filing a lien. 6 Trickett on Liens, vol. I, p. 23. 7 Brown v. Cowan & Steel, no Pa. 588 (1885). §115 mechanics' liens. 49 Sub-Contractors. 115. While it is true that the person who undertakes to furnish labor or material to the contractor, who has in turn agreed to plan, superintend or furnish labor to the owner, has a lien, there is still the question, as we have intimated above, as to how far down the line of sub-contractors this right to file a lien continues. We feel that we cannot do better than to quote at some length the remarks of one of our Justices in rendering an opinion. "We are to meet the question, how distant may the claimant stand from the contract between the owner and the builder, before we can say that he has no lien? Cer- tainly there must be a limit somewhere. The carpenter may undertake with the builder for finishing all his kind of work, including all the nails, screws, locks, hinges, fasten- ings, etc. Can he transmit the right of lien to all the dealers and artisans in these kinds of business? If he can, then the lien rights against any house may be entirely in- definite. The bricklayer, the stone-mason, the plasterer, the painter, the paperhanger, the plumber, and the cellar digger may multiply them in the same way, until the costs of liens may exceed the value of the house. If such had been un- derstood to be the law, the multiplication of liens would long ago have become so intolerable as to require a correc- tion of it. It would be intolerable not only to persons hav- ing houses built, but to mechanics themselves; for no pru- dent man would, with such a law, venture to employ any but rich mechanics about his building without getting secur- ity against liens which they may multiply with so much facility. . . . The law establishes one link, and only one, between the owner on the one hand, and the workmen and the material men on the other. It requires the lien to be founded on contract, and it recognizes no one as having power to contract so as to make a lien against a building except the owner and the contractor. . . . The owner, and the contractor or contractors under him, alone have power 4 50 LAW OF BUILDERS. § 116 to bind the building, for the law gives this power to no others."* While this opinion was based on the old laws, it is just as applicable to the mechanics' lien act of June 4, 1901. Partial Contractors. Tor Material Part of Work. 116. While there may be two or more partial contractors, in order that they may have a Hen for their labor or materials, their contracts must be for some material part of the build- ing, as the carpenter work, brick work, etc., and under the new law such work must amount to at least $100, in the case of alterations.® XjSSSXjU. Power of Lessee to Impose. 117. The last clause in § 2 of the act of June 4, 1901, is as follows: "Nor shall any claim be valid against the estate of an owner, by reason of any consent given by him to his tenant to improve the leased property, unless it shall appear in writing, signed by such owner, that said improvement was in fact made for his immediate use and benefit." ASSIGITMENT OP CLAIM. Power of Claimant to Assign. 118. Section 26 of the act of June 4, 1901, provides that any claim filed or to be filed under the provisions of such act may be assigned or transferred to a third party, either abso- lutely or as collateral security. LABOR AND MATERIALS POR WHICH LIEN MAY BE HAD. Por what Labor. Alterations Amounting to Less than $100. 119. Section 2 of the act of June 4, 1901, provides: "Every structure or other improvement, and the curtilage 8 Harlan v. Rand, 27 Pa. S" (1856); Singerly v. Doerr, 62 Pa. 9 (1869). 9. Singerly v. Doerr, Ibid. §120 mechanics' liens. 51 appurtenant thereto, shall be subject to a lien for the pay- ment of all debts due to the contractor or sub-contractor in the erection and construction or removal thereof, in the addition thereto, and in the alteration and repair thereof, and of the outhouses, sidewalks, yards, fences, walls or other enclosure belonging to said structure or other improvement; and in the fitting up or equipment of the same for the pur- pose for which the improvement is made, including paper- hanging, grates, furnaces, heaters, boilers, engines, chan- deliers, brackets, gas and electric pipes, wires and fixtures; and for like debts contracted by such owner in the fitting up or equipment with machinery, gearing, boilers, engines, cars or other useful appliances, of new or old structures or other improvements-, for business purposes, and for like debts contracted by such owner for rails, ties, pipes, poles and wires, and the excavation for and laying and relaying or stringing and restringing said rails, ties, pipes or wires." Under the laws, prior to the act of 1901, as we have seen, no lien could be had unless the labor done was of a material nature, such as the carpentering, mason work, etc., it being held in one case that no lien could be had by persons fur- nishing an elevator cage or car to the one contracting with the owner of a structure to place an elevator therein.^" While a contractor or sub-contractor, whose contract includes the putting in of chandeliers, the building of fences,^^ etc., will have a lien under the new act, such would not be the case where alterations or repairs of this kind are made, under separate contract, the price for which did not amount to over $100.^2 New Structure and Alteration, Distin.guish.ed. 120. The term erection or structure is of course applied, in the first place, to an entirely new building. It is fre- loSchenck v. Uber, 8i Pa. 31 (1876). 11 Basch V. Senner, i Penny. 22 (1881). 12 Act of June 4, igoi, P. L. 431, § 2. 52 LAW OF BUILDERS. §121 quently difficult, however, to determine when alterations are sufficiently extensive to come under the head of an erection. Section 3 of the act of June 4, 1901, provides that a substan- tial addition to a structure or other improvement shall be treated as a new erection or construction thereof, and that every adaptation of an old structure or otlier improvement to a new or distinct use, and which eiifects a material change in the interior or exterior thereof, shall also be deemed an erection or construction. These distinctions were of very great importance under such of the laws prior to the act of 1901 as made no provi- sion for the securing of a lien for alterations. It has been held that the putting on of a new roof and building a wing to a building was an alteration. -"^ Where the front of a building was taken down and a new front erected on the old foundations, the interior of the property also being consid- erably changed, it was held to be an alteration.-^* Under the old laws it was held that where the changes were almost wholly upon the interior of the building, the exterior re- maining substantially the same, the changes made were an alteration and not a new erection.^ ** Eor Bemoval or Demolition of Structure. 121. Under § 2 of the act of June 4, 1901, a lien may be had for the removal or demolition of a structure as well as for the building or alteration thereof.^® TTnfinislied Building. Destruction of Work. 122. Where a building is unfinished by reason of the negHgence or interference of the owner, the contractor or sub-contractor may have a lien for the amount of the work 13 Smith V. Nelson, 2 Phila. 113 (1856). 14 Howett's Case, 10 Pa. 379 (1849). 15 Patterson v. Frazier, 123 Pa. 414 (1889). 16 Pennock v. Brown, 14 W. N. C. 43 (1883). §123 mechanics' liens. 53 actually done.^' According to the provisions of § 19 of the act of June 4, 1901, no Hen can be had where the building, before acceptance by the owner, is destroyed by fire or other casualty. For Materials not Used in the Building. 123. The contractor will have a lien for work done at his shop or elsewhere, provided the work was done for the prop- erty in course of erection or of being improved, and on the credit of the same. The person furnishing materials at the shop of the contractor to be there worked into condition for use in a building will have a lien, if the materials are fur- nished on the credit of the building,^® which as we shall see in the next section is an indispensable condition to the securing of a lien in all cases. Section 3 of the act of June 4, 1901, provides: "Any labor or materials furnished in completely fitting or equip- ping the structure or other improvement for the purpose for which it was intended, whether on the property subject to the lien or elsewhere, if actually done or used for the pur- pose, shall be treated as part of the erection or construction thereof." The same section further provides : "Materials placed on or near the curtilage appurtenant to the structure or other improvement, or delivered to the owner or con- tractor for use therein, shall be presumed to have been used therein." liabor or Materials must be Furnished on the Credit of the Building. 124. Under the earlier decisions, it was held that if labor or materials were furnished entirely on the credit of the con- tractor and without regard to the contemplated building, no lien could be had.^* The presumption was that labor or 17 Thompson v. Porter, 14 Pa. C. C. R. 232 (1894) ; Harner v. Thomas, 10 D. R. 487 (1900). 18 Singerly v. Doerr, 62 Pa. 9 (1869) ; Dick v. Stevenson, 9 W. N. C. 411 (1881). i9Noar v. Gill, iii Pa. 488 (1886). 54 LAW OF BUILDERS. § 125 materials furnished were furnished on the credit of the building and not on the personal credit of the contractor.^" Where there was affirmative evidence that the claimant had no knowledge of the particular building in which materials were to be used, this fact was held to rebut the presumption that the materials were furnished on the credit of the build- ing.^^ The same interpretation will doubtless be given to the act of June 4, 1901. It was also held under the older laws that it was not necessary to allege in the claim, nor to prove afifirmatively that materials were furnished upon the credit of the building, if it be shown that they were fur- nished for and entered into the construction of the build- ing.^^ PROPERTY SUBJECT TO LIEN. Defined. Under Act of June 4, 1901. 125. In § I of the act of June 4, 1901, the word property is defined to mean, "The estate in fee; the freehold, lease- hold or other estate or interest therein, with the structure or other improvement thereon and the fixtures and other personal property used in fitting up and equipping the same for the purpose for which it is intended; all of which belong to the owner, and against which the claim is filed as a Hen." Section 2 of said act provides that every structure or other improvement, and the curtilage appurtenant thereto, shall be subject to a Hen for the payment of all debts due to the contractor or sub-contractor for any of the things speci- fied in said § 2. Removal of Property. EfEect of. 126. Section 27 of the act of 1901 provides that if the structure or other improvement be removed, it shall stiU be 20Noar v. Gill, in Pa. 488 (1886); Hommel v. Lewis, 104 Pa. 465 (1883). 21 Poole V. Pass. Ry. Co., i Mon. 170 (1889) ; Hills v. Elliott, 16 S. & R. 56 (1827). 22 Dougherty v. Loebelenz, 9 Super. Ct. 344 (1899). §127 mechanics' liens. 55 liable for the claims filed, except in the hands of a purchaser for value, after removal and without notice; as shall the land also, if it was bound while the structure or other improve- ment was on it. Public Property and that of Lunatics, etc.. Excepted. 127. Section 2 of the act of June 4, 1901, provides: "No lien shall be allowed for labor or materials furnished for purely public purposes; nor against any property held by the committee of a lunatic, the guardian of a minor, or a trustee under deed, vsrill or appointment by the court, unless by virtue of a contract made under authority of the court, or of the power contained in the deed or will." Section 6 of the act of 1901 as amended by the act of April 22, 1903, provides that where labor or materials are furnished for any structure or other improvement for purely public purposes, any sub-contractor, who has furnished labor or materials thereto, may give a written and duly sworn notice to the public agency contracting for the structure or improvement, being the owner thereof, setting forth the facts which would have entitled him to a lien as against the structure or other improvement of a private owner. Where- upon, unless such claim be paid by the contractor or ade- quate security be given to protect the claimant, such public agency shall pay the balance actually due the contractor into the court of common pleas of the county wherein the struc- ture or other improvement or the principal part thereof is situate, for distribution to such parties as would be entitled thereto were it paid into court in the case of a private Curtilage Befined. 128. Section 3 of the act of June 4, 1901, provides: "The curtilage appurtenant to the structure or other improvement 23 Act of April 22, 1903, P. L. 255. 56 LAW OP BUILDERS. §129 shall be such as is reasonably needed for the general purpose for which such structure or other improvement was made, and belonging to the same owner, including other struc- tures, whether newly erected, or altered, or changed for such purpose, and forming part of a single business or residential plant." STEPS NECESSARY TO SECTIRE. Alterations. As to Sub-Contractor. 129. The latter part of § 2 of the act of 1901 provides that no claim of a sub-contractor shall be valid for alterations or repairs, or for fitting up or equipping old structures with machinery, gearing, boilers, engines, cars, or other useful appliances, unless written notice of an intention to file a claim therefor, if the amount due be not paid, shall have been given to the owners or some one of them, or for him to an adult member of his family or the family with which he resides, or to his architect, agent, manager, or executive or principal officer, on or before the day the claimant com- pleted his work or furnished the last of his materials. necessity of Consent of Owner to Tenant, to Bind Property. 130. The same section further provides that no claim shall be valid against the estate of an owner, by reason of any consent given by him to his tenant to improve the leased property, unless it shall appear in writing, signed by such owner, that said improvement was in fact made for his im- mediate use and benefit. Notice of Intention to Pile. Sub-Contractor. 131. Section 8 of the act of 1901 reads in part as follows: "Any sub-contractor, intending to file a claim, must give to the owner written notice to that efifect, 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 §132 mechanics' liens. 57 the last work was done or materials furnished. Such notice and statement 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 claims, and within forty-five days thereafter, if he has but three months within which to file it." If we refer to § lo of the act in question we find that in the case of tenancies or leasehold estates, of alterations and repairs, and of fitting up or equipping old structures with machinery, etc., the claimant must file his claim in the place specified within three months after the "claimant's contract or agreement is completed; and in all other cases, as, for example, in the case of a new structure, within six months thereafter. We must not forget, however, that the latter part of § 2 of the act of June 4, 1901, as referred to in § 129 of this volume, directs that in the case of alterations, etc., by a sub- contractor, notice of his intention to file claim must be given by him on the last day he worked or on which the last of his materials were furnished for said alterations. mode of Making Service of Notice. Sub-Contractor. 132. Section 8 of the act of 1901 provides that service may be made personally on the owner anywhere; but if he cannot be served in the county where the structure or other im- provement is situate, such notice and statement may be served on his architect or agent, or the party in possession of the structure or other improvement; and if there be no architect, agent or party in possession, it may be posted on the most public part of the structure or other improvement. "When Owner may Betain Part of Contract Price. 133. Said section further provides that after notice to the owner by the sub-contractor that the contractor has failed to pay such sub-contractor the amount due him for work or 58 LAW OF BUILDERS. § 134 I I material for the structure being erected, 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. Time within which all Claims must be Filed. 134. Section lo of the act of 1901, as we have seen, pro- vides that in the case of tenancies or leasehold estates, of al- terations and repairs, and of fitting up or equipping old struc- tures with machinery, gearing,. boilers, engines, cars or other useful appliances, 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 com- pleted; and in all other cases within six months thereafter. Several Separate Contracts. 135. Section 12 of the act of June 4, 1901, provides that if the labor or materials be furnished continuously in the erection and construction of, addition to, or removal of a structure or other improvement, the claimant may file a single claim, though furnished under more than a single contract. A single claim may be filed against more than one structure or other improvement, if they are all intended to form part of one plant. Contents of Claim. 136. I. The name of the claimant. 2. The name of the owner of the structure or other im- provement and property. Under this head it may be stated that it has been decided under the older laws, that where a property belongs to the wife, the contract being made with the husband, but the wife had knowledge of the same and assented and approved of what was done by her husband and by the contractor § 136 mechanics' liens. 59 under the agreement, a sub-contractor who furnished ma- terial on the order of the contractor was entitled to a lien.^* 3. The name of the party with whom the claimant con- tracted, and, if not the owner, then whether or not such party contracted directly with the owner. 4. A copy of his contract or contracts, if in writing, or a statement of the terms and conditions thereof, if any of them are verbal. 5. The kind and character of the labor or materials fur- nished, or both, and whether the lien is claimed against the fee itself, or a lesser estate or interest therein. Under the older laws, a lien could not be had for materials furnished a contractor for his temporary use, as in the case of lumber furnished to be used in a scaffolding. Such a claim, it has been said, is no more within the purview of the statute granting liens than would be one for pick handles to facilitate the work of excavating the foundations of the building.^^ 6. When the contract is with other than the owner, or not for an agreed sum, a detailed statement of the kind and character of the labor or materials furnished, or both, and the prices charged for each thereof. 7. The amount or sum claimed to be still due and charge- able against the particular property, showing how that amount or sum is made up, and whether the claimant has any note or other collateral security for his claim, and if so what it is. 8. A description of the property against which the lien is claimed, together with such a description of the structure or other improvement as may be necessary for the purpose of identification. 24 Bodey v. Thackara, 143 Pa. 171 (1891) ; Bevan v. Thackara, 143 Pa. 182 (1891); Jobe V. Hunter, 165 Pa. S (1894); Einstein v. Jamison, 95 Pa. 403 (1880). See Contra, Wagner et al. v. Henderson, 3 Penny. 248 (1883). 25 Oppenheimer v. Morrell, 118 Pa. 189 (1888). 60 LAW OF BUILDERS. § 137 It was held under the old laws that the term dwelling did not include the stable unless the latter was mentioned.^* Mere description by street and number, without naming the city, borough or town in which it is situated, has been held insufficient to identify the property.^'' A description that would enable one to go to the exact place has been held sufficient.^® This would seem to be the most reasonable rule. 9. When the claimant first furnished labor or materials thereto, and when he last did so. 10. From what date the Hen is claimed, and, if from a time preceding the filing of the claim, the reason why such date is selected. 11. When the contract is with other than the owner, or the claim is for alterations or repairs, or for fitting up old structures with machinery, gearing, boilers, engines, cars, or other useful appliances, when and how notice was given to the owner of an intention to file claim. Affidavit to Claim. 137. Attached to the claim shall be a statement, signed, and sworn to or affirmed to, by the parties claimant or some one of them, or by one of their principal or executive offi- cers, or by some one for them, if the facts be better known by such third party; that all the facts therein set forth are true so far as they are within their own knowledge; and so far as they are derived by information from others, that they have made a careful examination and inquiry as to the truth thereof, and, as a result of such examination and in- quiry, they believe them to be true. If the affidavit be made by a third party, the reason therefor shall be stated in the affidavit.^® 26 Bevan v. Thackara, 143 Pa. 182 (1891). 27 Brown v. Myers, 145 Pa. 17 (1892). 28 Cowdrick v. Morris, 9 Pa. C. C. R. 312 (1889). 29 Act of June 4, 1901, P. L. 431, § 11. §138 mechanics' liens. 61 notice to Owner of Having Filed Claim. 138. Section 21 of the act of 1901 reads as follows: "Within one month after the filing of the claim, the claimant shall serve a notice upon the owner of the fact of the filing of the claim, giving the court, term and number and the date of filing thereof, and shall file of record in said proceed- ings an affidavit, setting forth the fact and manner of such service. A failure to serve such notice and file an affidavit thereof within the time specified shall be sufficient ground for striking off the claim." Notice Necessary when Contract Impairs Bights of Claimants. 139. It is provided in §19 of the act of 1901 that when any contract for labor or materials to be furnished to a structure or other improvement shall be so drawn as to affect or in any manner impair the rights and remedies given to a claimant or use-claimant, or to postpone the time of payment for a period exceeding six months after the last of the labor or materials are furnished, it shall be the duty of the party making such contract, whether duly written, signed and filed or not, to give actual notice thereof to those contracting with him, prior to the time of the making of the contract with or the employment of such party. A failure to do so shall be sufficient ground for a rescission of the contract by the party theretofore ignorant of the fact, and the recovery by him pro rata, by lien or otherwise, for the labor or materials furnished up to the time of rescission. Sub-Contractors Bound by Tefms of Contract Filed. 140. Section 18 of the act of 1901 provides that the sub- contractors shall be bound, to the extent of the notice given, by the contract, as signed and filed, though it be but part of the entire contract or contracts between the owner and con- tractor.^" 30 Schroeder v. Galland, 134 Pa. 277 (i8go). 62 LAW OF BUILDERS. § 141 Giving of Credit merely Postpones Proceedings. 141. We have seen under a previous head, that § 15 of the act of 1 90 1 provides that giving of credit or the receiving of collateral security shall not operate to waive the right to file a claim, but shall delay voluntary proceedings thereon by the claimant until the time of credit shall have expired. Claimant's Bight to Insurance in Case of Eire. 142. In § 49 of the act of 1901 it is provided that in case the structure or other improvement bound by or liable to any claim for labor or materials, or which would be so liable but for a waiver thereof, shall be destroyed or removed by fire or other casualty prior to the payment of the claims, any insurance placed upon the property by the owner, con- tractor or sub-contractor because of such improvement, and actually received or to be received by him because of its destruction or removal, shall, after the insured has received all premiums paid and any money actually expended by him on account of such improvement, inure to the benefit of claimants and use-claimants under him, with the same effect as if they were parties to the contract of insurance. EPPECT OP LIEN. JUDGMENT AND EXECUTION THEREON. Date of Lien. 143. The lien of every claim for the alteration of or repair to any structure or other improvement, or for fitting up old structures with machinery, etc., shall take effect, according to § 13 of the act of 1901, as of the day of filing. In all other cases the lien of the claim shall take effect as of the date of the visible commencement, upon the ground, of the work of building the structure or other improvement. Priority and Porce of Lien. 144. The same section provides that such claims shall be paid out of the proceeds of a judicial sale of the property §145 mechanics' liens. 63 described therein, in preference to any estate, charge or lien of which the claimant had not actual or constructive notice at that time, except municipal or tax claims and the exemption allowed by law. In the case of a claim for a new structure, an estate, charge or lien, of which the claimant had actual or constructive notice before the date of visible commencement, upon the ground, if given to secure advances of money, knowingly to be f.urnished for the purpose of making the improvement in whole or in part, shall have, with prior liens and incumbrances, a preferential claim upon the funds raised by a judicial sale of said property, to the extent only of the actual value of the property immediately prior to such visible commencement of the work; but the proceeds of such sale, above such value, shall be applied to the pay- ment of the mechanics' claim in preference to such estate, charge or lien. The lien of every such claim shall bind only the interest of the party named as owner of the property at the time of the contract, or subsequently acquired by him; but no forfeiture or surrender of a leasehold or tenancy, whether before or after the filing of the claim, shall operate to prejudice its lien against the fixtures, machinery, or other similar property described therein. Judgment and Execution. 145. Section 10 of the act of 1 901 provides that when the claim for labor or materials is filed and notice given to the owner of such claim having been filed as required, a writ of scire facias must issue upon such lien within two years, unless the owner, by writing filed before the expiration of that time, waive the necessity for so doing for a further period, not exceeding three years; and a verdict must be recovered or judgment entered on the scire facias within five years after it is issued. Final judgment must be entered on the verdict within five years after its recovery. After judgment is entered, it must be revived, by writ of scire facias to revive the judgment or by judgment thereon, within 64 LAW OF BUILDERS. § 146 each recurring period of five years. If a claim be not filed as provided in this act, or if it be not prosecuted in the man- ner and at the times aforesaid, it shall be wholly lost. stay of Execution. 146. Section 48 of the act of 1901 reads as follows: "At any time before the property is sold, approved security may be entered for a stay of proceedings until the expiration of one year after the date of filing the claim. The entry of such security by the owner, before the entry of judgment on the claim, shall be equivalent to an admission by him that the property is liable for the claim. The entry of such security by the contractor (where the claim is filed by the sub-contractor), before the entry of judgment on the claim, shall be equivalent to an admission by him that he has no defence to the recovery of judgment against himself, but shall not debar the owner from defending the claim. After the stay has expired, the claimant may proceed upon the claim and the bond given, separately or simultaneously. If payment is made by the owner, the bond given by the con- tractor shall be assigned to the use of the owner, and he may recover thereupon the amount paid, or any part thereof, if the accounts as between himself and the con- tractor shall justify such recovery." Conclusion. 147. We have but briefly touched upon those clauses and sections of the act of June 4, 1901, which we believe the contractor or sub-contractor, whether employing a lawyer or not, will find to his decided advantage to make himself familiar with. While the practitioner will recognize, at a glance, that our remarks in this connection are by no means intended as a complete treatise upon the question of mechanics' liens in this state, or upon any branch of that subject, we, never- theless, trust that what has been said will not prove value- § 147 mechanics' liens. 65 less as a means of assisting him in his task of comprehending the purpose, scope and effect of the act which has worked such a radical change in the law of the state with reference to this exceedingly important subject. We would earnestly recommend to the builder, that, after a careful study of the foregoing remarks as to me- chanics' liens, he read the act of 1901 in its entirety, as given in the appendix to this volume. We have therein also given certain forms required in this connection, and which we be- lieve the builder, as well as the lawyer, will appreciate having at his command. CHAPTER VI INSURANCE SECTION. SECTIOK. 148. Who may insure. 151. Increase of hazard. Fifteen- 149. Insurance does not cover day clause. Acquiescence of woodwork deposited apart company. from the building being 152. Insurance is discontinued erected. when building falls. 150. Application of insurance 153. Storm insurance. money in case of loss. Who IilEay Insure. 148. Any person who has such an interest in a property as will be injured by the destruction of such property, may insure the same against its destruction by fire or other casualty.^ Although, as we have already seen, the contractor must bear the loss in case a property is destroyed before com- pletion, the owner also has an insurable interest in such property. This right in the owner to insure is recognized in the new act as to mechanics' liens. The contractor's insurable interest depends on the ques- tion whether he is bound to rebuild the house in the event of its destruction before completion and acceptance, and whether failing to do so, he is bound to refund the money already paid on the contract for work actually completed; in other words, whether he will suffer any pecuniary loss in case of the destruction of the property. If so, he has an insurable interest. I Mutual Fire Ins. Co. of Annville v. Wagner, i Cent. R. 223 (1885) ; Sweeny v. The Franklin Fire Insurance Co., 20 Pa. 337 (1853) 66 § 149 INSURANCE. 67 Different methods are adopted, to protect both the owner and the contractor. Sometimes the policy is simply written for an amount sufficient to cover the building when com- pleted, with a clause permitting building operations for a specified time. If a clause is inserted making the loss, if any, payable to the contractor, it may be enforced by the contractor. Insurance Does not Cover Woodwork Deposited Apart from the Building Being Erected. 149. A policy on an unfinished house does not cover wood-work prepared therefor and deposited in an adjoining one, also insured.^ Application of Insurance KEoney in Case of Iioss. 150. Section 49 of the act of 1901 provides that in case the structure or other improvement bound by, or liable for any claims for labor or materials, or which would be so liable but for a waiver thereof, shall be destroyed or removed by fire or other casualty, prior to the payment of the claims, any insurance placed upon the property by the owner, con- tractor or sub-contractor because of such improvement, and actitally received or to be received by him because of its destruction or removal, shall, after the insured has received all premiums paid and any money actually expended by him on account of such improvement, inure to the benefit of claimants and use-claimants under him, with the same effect as if they were parties to the contract of insurance. Increase of Hazard. Fifteen-Day Clause. Acquiescence of Com- pany. 151. There are certain clauses in the Standard fire insur- ance policy which must be kept in mind. The Standard policy contains a clause to the effect that 2 Ellmaker v. Franklin Fire Ins. Co., 5 Pa. 183 (1847). 68 LAW OP BUILDERS. §152 if mechanics be employed in building, altering or repairing the building insured for more than fifteen days at any one time without the consent of the company, loss, if any, occur- ring during that time will not be paid by the company. A condition in a fire policy that if the hazard be increased the policy shall be void, is intended to protect the property from further hazard by reason of change in structure, meth- ods of heating, addition of outbuildings, etc.^ The con- tractor should, therefore, be careful to ascertain whether such consent has been received from the company in the case of alteration, or in the case of a new structure, to see whether the clause permitting the completion of the build- ing be properly inserted. A condition in a fire policy requiring written notice of privilege to make alterations, may be waived by the acquiescence of the company and by their collecting premi- ums.* It is much the safer plan, however, to have the con- sent of the company. Insurance is Discontinued When Building Palls. 152. The Standard fire policy contains a clause to the effect that if a building or any part thereof fall, except as the result of fire, all insurance on such building or its contents shall immediately cease. storm Insurance. 153. In an action upon a policy of insurance against storm it has been held that no recovery can be had unless the storm, and not the inherent weakness of the building, was the cause of the loss." 3 Long V. Beeber, 106 Pa. 466 (1884) ; Collins v. London Assurance Cor., i6s Pa. 298 (1895). 4Stauffer v. Manheim Mutual Fire Ins. Co., 150 Pa. 531 (1892). S Haas v. Line Lexington Fire Ins. Co., 8 Mont. 180 (1891). CHAPTER VII BONDSMEN SECTION. SECTION. 154. Generally. leased where alterations in 155. Surety and guarantor. Dis- proposed work are made in tinguished. a subsequent supplemental 156. Guarantor. Statute of frauds. agreement. 157. Bondsmen will be released 159. Breach of contract or aban- when alterations are made donment by contractor. As in work proposed. affecting rights and duties 158. Bondsmen will not be re- of bondsmen. Generally. 154. It would be entirely foreign to the purpose of this work to attempt to give more than a mere hint as to the law with relation to suretyship and guaranty, but since the gen- eral rules as to these subjects apply to bonds given in con- nection with building contracts, we refer briefly to the sub- ject. When a contract, involving any considerable sum, is entered into by an owner and builder, it is customary for the contractor to give a bond, either alone or in connection with another, conditioned for certain things, such as, that the work shall be completed at a given time, that the work will safely answer the purpose for which it is intended, that the owner will be saved harmless from damages for any injury or damage resulting to the person or property of others, by reason of the unskillfulness or negligence of the contractor, his agents or employees, or for any other purposes which may be agreed upon. 69 70 LAW OF BUILDERS. §155 Surety and Guarantor. Distinguislied. 155. It frequently is the case that the owner requires that some responsible third party join in the bond with the con- tractor, either as surety or guarantor, as the case may be. A surety is one who joins in the bond with the contractor and whom, it is intended, shall be equally bound with him. In the case of a surety it is not necessary to first show that it is impossible to recover from the contractor. The parties to the bond may, in case of default, be sued either jointly or separately. A guarantor is one who undertakes to perform or to be responsible if the contractor does not perform or proves not to be responsible. No action can be had against a guarantor until it be shown that no redress can be had from the con- tractor. When the contractor is insolvent, it is not necessary to bring action against him before proceeding against the guarantor,^ although this is the most conclusive way of showing that no redress can be had from the contractor. Suretyship is a primary obligation, while a guaranty is a secondary one. Where a contract provided, "For a valuable consideration to me in hand paid, I guarantee to said second party, their executor, etc., that said . . . shall well and faithfully per- form his part of the foregoing contract," it was held not to be a guaranty of mere skill and fidelity on the part of the contractor, but for the substantial completion of the con- tract according to its terms.^ The use of the term "to be responsible" for the contract of another has been held to constitute a guaranty.^ Guarantor. Statute of Frauds. 1 56. What is known as the statute of frauds provides that no person shall be bound by any promise to answer for the debt, default or miscarriage of another, unless the agree- I Janes v. Scott et al., 59 Pa. 178 (1868). 2 Ibid. 3 Bickol V. Auner, 9 Phila. 499 (1872). § 157 BONDSMEN. 71 ment upon which action shall be brought, or some memo- randum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by^ him authorized; provided, however, that where less than $20 is involved, such promise need not be in writing in order that the promisor may be held accountable.* Eondsiaen Will be Released When Alterations are Hade in Work Proposed. 157. The person or persons joining in the contractor's bond to save harmless the owner from any claims for ma- terials or labor furnished in the erection of a building, and for the better securing to the owner of penalties which may accrue, etc., are bound only by the express terms of the contract and such contract is not to be extended by impli- cation. To the extent, in the manner, and under the cir- cumstances pointed out in his obligation, he is bound, and no further. It is not sufficient that he may sustain no injury, or that such change may even be for his benefit. He has a right to stand upon the very terms of his contract; and if he does not assent to any variations of it, and a varia- tion is made, it is fatal.^ The bondsmen may agree, how- ever, that no notice need be given to them of alterations in the contract, in which event they will continue to be bound. The obligors in a bond for the performance of a contract are released from liability by a new contract in relation to the same subject-matter, with different security entered into by the parties after breach of the old contract and before notice or demand upon them.® A surety will not be discharged because of changes made in the contract where the contract expressly provides that changes may be made.'^ 4 Act April 26, 1855. SWhelen v. Boyd, 114 Pa. 228 (1886); Barclay v. Deckerhoof, 31 W. N. C. 27 (1892). 6 Whelen v. Boyd, supra. 7 Blauvelt v. Kemon, ig6 Pa. 128 (1900). 72 LAW OF buil5ers. §158 Bondsmen Will not be Released Where Alterations in Proposed Work are Made in a Subsequent Supplement Agreement. T58. When a building contract has been entered into, and afterward an agreement is made providing for additional work at a fixed compensation, the supplemental contract is a separate and independent agreement and not an altera- tion of the first, releasing the sureties thereon.^ Breach of Contract or Abandonment by Contractor. As Affecting Blights and Duties of Bondsmen. 159. When a contractor absconds, becomes insolvent, or for any reason fails to prosecute the work contemplated, the bondsmen may take possession of the unfinished opera- tions and complete the same. If material men have deliv- ered on the premises, material ordered by the contractor on the credit of the building, and which has not been paid for, the bondsmen may appropriate the same in the completion of the work, and not be liable therefor to the material men. The reason for this is found in the fact that the contractor in ordering material for a building does so as an agent of the owner, and, therefore, the material man's remedy is to file his lien against the property, provided, of course, he has not waived that right. If he has waived that right, his only remedy is against the contractor personally. Even though the materials were ordered on the credit of the contractor personally — by the contractor's application of them to the building in course of erection by him, the material man, under the terms of his waiver and agreement to look to the contractor personally, loses his right to realize his debt out of them, and he therefore cannot interfere with the bondsmen's appropriation of the materials by levying upon the same. Where, however, the bondsmen have entered into pos- session of an uncompleted structure, have finished the same 8 Barclay v. Deckerhoof, 31 W. N. C. 27 (1892). § 15& BONDSMEN. 73 in accordance with the contract, and have received from the owner the balance which would have gone to the contractor, and such balance is over and above the amount necessary to complete the structure in accordance with the contract, in such event, the material men and other lien creditors will, it seems, be entitled to share pro rata in such balance. PART n. RELATION OF CONTRACTOR TO MATERIAL MEN. CHAPTER VIII RELATION OF CONTRACTOR TO MATERIAL MEN SECTION. In General. i6o. Introduction. i6i. Sale defined. 162. Who may make contract of sale. 163. Power of infants to make contract of sale. 164. Power of lunatics to make contract of sale. 165. Effect of drunkenness upon contract of sale. 166. Effect of Sunday transac- tions. Offer and Acceptance. 167. Must be clearly defined and unconditional. 168. Acceptance. Must be com- municated within a rea- sonable time. 169. Necessity for communica- tion of acceptance. 170. Sending goods evidence of acceptance. Where smaller quantity is sent than ordered. 171. Authority of agent to re- ceive acceptance. 172. When mail, telegraph or 74 SECTION. telephone may be used to forward acceptance. 173. When contract becomes binding. 174. When offer may be with- drawn. Consideration. 175. When no consideration is mentioned. 176. When fixed by third parties. When Title Passes. 177. Intention. 178. Transfer of title and of possession, not synony- mous. 179. Cash transaction. 180. Delivery to common car- rier. 181. Bill of lading. 182. Bill of lading. Bill of ex- change. 183. Inspection, weighing, etc. 184. Authority of inspector. 185. When no place is desig- nated for delivery. §160 RELATION OF CONTRACTOR TO MATERIAL MEN. 75 i86. Receipt and acceptance, distinguished. Samples. Right of Stoppage in Tran- situ. 187. Defined. 188. Conditions necessary. 189. Who may exercise. 190. What constitutes termina- tion of transit. 191. Vendee may intercept goods. 192. What constitutes insol- vency. 193. Eflfect of giving credit. 194. Exercise of right does not work rescission of con- tract. SECTION. Payment. 195. Requisites of tender. 196. When made to an agent. 197. Promissory note, check, etc. 198. Promissory note, etc. Re- ceipt. 199. Use of the mail. Deceit. 200. Deceit must be of material fact. 201. Rule of caveat emptor. 202. There must have been an intention to deceive. 203. Vendee must have been deceived. 204. Remedy. IN GENEKAIi. Introduction. 160. We will now enter upon the consideration of the re- lation of the contractor to the material men from whom he purchases his materials. It is our purpose to advert to that branch of the law of contracts known as sales, only in so far as may concern and be of value to the contractor in his dealings with those from whom he secures his materials. Sale Defined. 161. A sale, technically defined, is "a contract or agree- ment for the transfer of the absolute property in personalty from one person to another, for a price in money."^ The contract of sale, like all other contracts, is to be controlled by the clearly ascertained intention of the parties.^ Who Illay Make Contract of Sale. 162. The general rule is that any person has the capac- ity to buy goods, and any one, who is the owner of the 1 Tiedeman on Sales, § i. 2 Huthmacher v. Harris Adms., 38 Pa. 491 (1861). 76 LAW OF BUILDERS. § 163 goods, may sell the same. There are, however, certain ex- ceptions to this rule, which we will refer to. Power of Infants to Make Contract of Sale. 163. Persons tinder twenty-one years of age, who are known in the law as infants, are not able to be a party to such contract of sale, or at least the law so far protects them as to allow them to avoid their contracts.* When one of the parties is an adult, however, he will be bound by his contract, even though the other party is a minor and, there- fore, not bound by his agreement.* Where an infant has received any benefit under a contract, he must return the same, if it is within his power to do so, before he can dis- affirm the contract.® While an infant cannot make a con- tract, he may when he becomes of age, ratify his former acts.* Power of Lunatics to Make Contract of Sale. 164. Lunatics and imbeciles are unable to make a con- tract of sale, but their derangement must be of such a nature that they are unable to comprehend the matters constituting the contract. It has been held in this state that where the person deal- ing with the lunatic is ignorant of his condition, does not in any manner take' advantage of him, acts in good faith in every respect, and there was nothing in the conduct of the insane person to arouse the suspicion of any reasonably observant person, the contract is binding upon such insane person, to the extent at least that he cannot insist on return of his money without returning goods purchased.^ 3 Mohney v. Evans, 51 Pa. 80 (1865). 4Titman v. Titman, 64 Pa. 480 (1870). 5 Murr v. Berkheimer, i York, 177 (1880). 6 People's Bank's Ap., 93 Pa. 107 (1880). 7 Moore v. Hershey, 90 Pa. 196 (1879); Beals v. See, 10 Pa. 56 (1848); Lancaster Co. Bank v. Moore, 78 Pa. 407 (1875). §165 RELATION OF CONTRACTOR TO MATERIAL MKN. 77 Effect of Brunkenness Upon Contract of Sale. 165. If a party to a sale is so intoxicated as to be clearly- bereft of reason sufficient to comprehend the nature of such transaction, the contract will not be valid. A sale will not be declared invalid, however, if the proof ofifered merely tends to show that one of the parties was to some extent under the influence of liquor.* Effect of Sunday Transactions. 166. If a contract of sale made on a Sunday has been fully executed by the delivery of the goods and the payment of the price, the law will not undo such bargain, but on the other hand, the law will not lend its aid to either of the parties to a contract made on Sunday to enforce such a bargain.® OFFER AND ACCEPTANCE. ]>[ust be Clearly Defined and TInoonditional. 167. In some kinds of material the fluctuations in price are quite considerable and occur at short intervals. It is generally the custom for dealers to notify their trade that prices are quoted subject to change. Circulars quoting prices on certain commodities therein mentioned are to be considered merely as invitations to deal, and may not be construed as an ofifer, the acceptance of which will consti- tute a binding contract.^" There must be a clearly defined ofifer on one hand and a clearly defined acceptance on the other, of the same ofifer, otherwise the title to the material does not pass, even though the possession is transferred.^^ The ofifer and ac- ceptance must agree in every particular in respect to the 8 Wilson V. Bigger, 7 W. & S. iii (1844); Bush v. Breinig, 173 Pa. 310 (1886). 9 Foreman v. Ahl, 55 Pa. 325 (1867). 10 Allen V. Kirwan, 28 Atl. Rep. 495. 11 O'Neill V. Patterson, 27 Pitts. L. J. 189. 78 LAW OF BUILDERS. § 168 quantity, quality or identity of the thing sold and as to the terms and conditions of the sale.^^ Acceptance. IHust be Communicated Within a Beasonable Time. 1 68. If the party making the oflfer fix a time within which the acceptance must be received, that will, of course, govern. Otherwise the. acceptance must be made within a reasonable time.^^ Necessity for Communication of Acceptance. 169. We have seen that there must be a concurrence of minds to efifect a contract. Unless, however, there be some manifestation of such a meeting of minds, the law can take no note of such concurrence. Therefore, the offeree, as the one to whom the ofifer is made is called, must communicate his acceptance of the ofifer to the ofiferer, or the one who made the offer.^* This communication may be by written or spoken word, either of the party himself or his agent, or it may be inferred from conduct or circumstances, when it is said to be implied. Sending Goods Evidence of Acceptance. Where Sm.aller Quantity is Sent than Ordered. 170. One of the ways whereby an ofifer may be accepted other than by written or spoken word, is by sending goods in pursuance of an order received for them, which would doubtless be considered a sufificient acceptance of the offer to buy.^^ However, when a certain quantity is ordered and a smaller quantity is shipped, this could not be considered such an unconditional acceptance as we have seen is necessary 12 Johnston v. Fessler, 7 Watts, 48 (1838). 13 Keck V. McKinley, 39 Leg. Int. 159 (1881). 14 Warren Boro. v. Daum, 73 Pa. 433 (1873); Powers v. Curtis, 147 Pa. 340 (1892). 15 Hoffman v. R. R. Co., 157 Pa. 174 (1893). § 171 RELATION OF CONTRACTOR TO MATERIAL MEN. 79 to constitute a sale. If the smaller quantity is accepted and retained, the law will imply a contract of sale. When goods are sent without being ordered, with instructions as fol- lows, "In case you cannot use them you will please return them to me at my expense," the goods must be returned promptly, if the person receiving them does not intend to keep them.^® If a person takes merchandise, which he claims he has not bought, out of the possession of a railroad company, and retains the same, after being informed of the consignment to him, he will be liable for the price.^^ Authority of Agent to Beceive Acceptance. 171. If the ofiferer make an offer through an agent, the presumption is that such agent is authorized to receive an acceptance of such offer. When Mail, Telegraph or Telephone Iilay be Used to Forward Ac- ceptance. 172. When the offerer makes his offer by mail, telegraph or telephone, he will be deemed to have made such com- pany his agent, and therefore acceptance may be forwarded in like manner.^ ^ When Contract Becomes Binding. 173. The moment the one to whom the offer is made places his acceptance in the mail or entrusts it to any other ^ agent chosen by the offerer, the contract becomes binding upon the offerer, provided, of course, the acceptance takes place within the time specified, or in the absence of any stipulation, within a reasonable time.^® Of course, the of- ferer may stipulate that the contract shall not be binding upon him until he receives the acceptance of the one to whom the offer was made. 16 Fink V. Knauss, 4 W. N. C. 356 (1877). 17 Indiana Mfg. Co. v. Hayes, 15s Pa. 160 (1893). 18 Hamilton v. Ins. Co., 5 Pa. 339 (1847). 19 Ibid. 80 LAW OF BUILDERS. §174 When Offer May be Withdrawn. 174. Until the offer has been accepted, the person making the same may withdraw it, provided his withdrawal reaches the one to whom the offer was made before the latter has communicated his acceptance.^" CONSIDEBATIOIT. When no Consideration is Mentioned. 175. A consideration is an absolute essential to a sale. Where no price has been mentioned, and all of the other requisites of a contract of sale exist, the law will imply an intention to pay what the goods are reasonably worth.^^ When Pixed by Third Parties. 176. If the price is to be fixed by third persons and the buyer prevents the valuation of the goods, he will be re- quired to pay what they are reasonably worth.^^ WHEN TITLE PASSES. Intention. 177. When goods are lost or destroyed in the course of transportation or otherwise, it becomes a matter of much importance to determine when the title passes, and in whom the title was vested at the time of the destruction or loss of the goods. The intention of the parties governs largely in determin- ing when the title is to pass, whether the intention be ex- pressed, orally or in writing, or simply impHed from attend- ing circumstances. Transfer of Title and of Possession, not Synonymous. 178. There may be a transfer of the possession without a transfer of title, and on the other hand, the title may pass 20 Vincent v. Oil Co., 165 Pa. 402 (1895). 21 Johnson v. Wanamaker, 17 Sup. 301 (1901). 22 Smyth V. Craig, 3 W. & S. 14 (1841). § 179 RELATION OP CONTRACTOK TO MATERIAL MEN. 81 from one person to another with no change whatever in the possession of the goods. A transfer of possession is by no means essential to a transfer of title. The parties may, of course, agree that there shall be no transfer of the title until the transfer of possession takes place.^* Cash. Transaction. 179. Where the sale is a cash transaction, the parties are presumed to intend that there shall be a payment of the price before the title passes. If, however, the goods are delivered to the buyer or vendee, as he is called, the prepay- ment of the price is presumed to be waived, and the title will be held to pass.^* If, on the other hand, there is an agreement that payment of the price shall be a prerequisite to the passing of the title, transfer of possession secured by fraud will not affect the title.^^ Delivery to Common Carrier. 180. Where the goods have been delivered to a common carrier with the express consent or direction of the vendee or because the goods have heretofore been shipped in that particular way, or where the consent of the vendee that goods shall be so shipped may be fairly inferred, the loss, if any, will fall on the vendee, as the title is held to pass to the vendee at the time of delivery to such carrier.^^ Bill of Lading. 181. If the goods are delivered to a common carrier that makes out a bill of lading in which the common carrier agrees to deliver the goods subject to the order of the vendor, or the person who sells the goods, the title remains 23 Sneathen^ v. Grubbs, 88 Pa. 147 (1878). 24Bowen v. Burk, 13 Pa. 146 (1850). 25 Bush V. Bender, 113 Pa. 94 (1886). 26 Bacharach v. Chester Freight Line, 133 Pa. 414 (1890) ; Schumacher V. Eby, 24 Pa. 521 (1855). 82 LAW OF BUILDERS. §182 in such vendor, and an assignment of the bill of lading by him operates as an assignment of the property.^'' BUI of liading. Bill of Exchange. 182. When the bill of lading is accompanied by a bill of exchange payable on demand or at sight, the title does not pass until the bill of exchange is paid. Therefore, if the carrier disobeys instructions and delivers the goods to the vendee without the payment of the bill of exchange, the vendee does not acquire the title nor does any purchaser from him.^* Inspection, Weighing, etc. 183. Where goods are to be inspected, weighed, counted or measured, before delivery, to ascertain the price, the title does not pass until such condition is complied with.^® Where, however, the goods are actually delivered, even though not weighed or counted, as the case may be, the title will pass, unless such inspection was made necessary by the terms of the contract.^" To illustrate the principles stated, we give the facts in one case and the decision thereon. A party named Miller had bought eleven piles of hemlock lumber for a lump sum. It was estimated that the piles contained four hundred and six thousand feet, more or less. Possession was delivered to the purchaser, in the pile, he marking each pile with his signature. This was held to be a present sale. Miller sometime later contracted for the sale of the lum- ber for $8.25 per M. The price was to be paid on the quan- tity contained in each shipment ordered, within thirty days 27 Schumacher v. Eby, supra. 28 Heiskell v. Farmers' Bank, 89 Pa. ISS (1879). 29 Nesbit V. Burry, 25 Pa. 208 (i8ss). 30 Scott V. Wills, 6 W. & S. 357 (1843) ; Dennis v. Alexander, 3 Pa. SI (1846). §184 RELATION OP CONTRACTOR TO MATERIAL MEN. 83 after each shipment. The lumber was to be shipped as or- dered by the purchaser, until a certain time, when all lumber remaining in the yard of the vendor of the said eleven piles, was to be inspected and measured by a party named and the same paid for in cash at a price stated. After some shipments had been made and paid for, the remaining lumber was carried away and destroyed by a flood. The vendor endeavored to recover from the party with whom he contracted to sell, for the whole amount of lumber in his possession at the time of the loss. The court held that there was no liability on the buyer's part to pay for anything which was not actually delivered to him, after being inspected.^^ Authority of Inspector, 184. Where a brick manufacturer agrees upon an in- spector, the inspector becomes his agent, and he cannot complain if the inspector throws out good bricks.^* When no Place is Designated for Delivery. 185. If no place has been designated where delivery is to be made, and there is no place where goods have heretofore been customarily delivered, the vendor must stand ready to deliver the goods at the place where goods were at the time of sale.^^ If the place for delivery is designated, there can be no recovery of the price, unless delivery is actually made dt such place.^* Ordinarily, a delivery to a common carrier constitutes a sufficient delivery. Beceipt and Acceptance, Distinguished. Samples. 186. There is an important distinction, in the law, be- tween the receipt and the acceptance of goods. When the 31 Miller v. Seaman et al., 176 Pa. 291 (1896). 32 Park Fire Clay Co. v. Ott, 165 Pa. 563 (iSpS)- 33 Barr v. Myers, 3 W. & S. 295 (1842). 34Brad(iock Glass Co. v. Irwin & Co., 153 Pa. 440 (1893)- 84 LAW OF BUILDERS. § 187 buyer has examined the goods at or before the time of buy- ing, his receipt of the goods will be held to imply an accept- ance of them. Also, where from the nature of the goods, they may be inspected before receipt, a receipt thereof will imply an acceptance. Where goods have been bought by sample, a reasonable time may elapse after the receipt of the goods before the acceptance or rejection of them. An order for steel scrap "similar to sample wagon load" previously delivered is an executory contract, and no title passes until the goods are accepted by the vendee.^^ RIGHT OF STOPPAGE IN TRANSITU. Defined. 187. When goods are sold on credit, it sometimes happens that after the goods have been delivered to the common carrier, the seller learns of the buyer's insolvency. In such case the law gives the seller what is known as the right of stoppage in transitu, or the right to stop the goods before they pass into the hands of the buyer. Conditions Necessary. 188. The conditions necessary to the exercise of this right are, an unpaid price, that the goods be still in course of transportation, in the sense below explained, that they be in the possession of some third party and that the buyer be insolvent. Who May Exercise. 189. The right of stoppage in transitu may be exercised by the vendor or his duly authorized agent.*^ 35 Jones v. Jennings, 168 Pa. 493 (1895). 36 Bell V. Moss, S Whart. 189 (1839). § 190 RELATION OP CONTRACTOR TO MATERIAL MEN. , 85 What Constitutes Termination of Transit. 190. The transit ends with the actual or constructive de- livery of the goods to the vendee or his agent.^'' Delivery to vendee's agent at depot or railroad warehouse is sufficient to terminate the transit, but mere arrival at destination does not destroy the right of stoppage in transitu.^* Vendee May Intercept Goods. 191. It is within the power of the vendee to intercept the goods at any intermediate point and thus defeat the vendor's right of stoppage in transitu. But while the vendee or his agent may thus intercept the goods and thus defeat the vendor's right to stop the goods, if the goods are never delivered into the custody of the vendee or his agent at the intermediate point, the vendor's right of stoppage in trans- itu will not be defeated. Therefore, where the vendee simply intercepts the goods at an intermediate point and reships them to the original destination, the vendor may still exercise his right to stop the goods.^* When once the transitus is at an end, and the goods are then reshipped, the right to stop the goods will not be revived.*" What Constitutes Insolvency. 192. As to the matter of insolvency, it may be said, that if the vendor knew at the time of the sale, of the vendee's insolvency, the right of stoppage in transitu cannot be exer- cised. There must be a change of circumstances after shipment, or, at least, it must appear that the vendor had subsequently to the time of sale learned of the insolvency of the vendee.*^ In order to justify a stoppage in transitu, the vendor must be able to show an inability on the part of 37Wenger v. Bernhardt, 55 Pa. 300 (1867). 38 Eastern Lumber Co. v. Gill, 9 Pa. C. C. R. 630 (1891); Cabeen v. Campbell, 30 Pa. 2S4 (1858). 39 Cabeen v. Campbell, 30 Pa. 254 (1858) ; Hays v. Mouille, 14 Pa. 48 (1850). 40 Ibid. 41 Bender v. Borman, 2 Pearson, 517 (1868). 86 LAW OP BUILDERS. §193 the vendee to meet his obligations. He need not, however, show a technical failure of the vendee.*^ Effect of Giving Credit. 193. The right of stoppage in transitu is in the vendor, even though the limit of time of credit given has not ex- pired, and notwithstanding the fact that notes have been taken and other conditional payments have been made.** Exercise of Sriglit Does not Work Kescission of Contract. 194. The exercise of the right of stoppage in transitu by the vendor does not work a rescission of the contract of sale, and therefore the buyer may, within a reasonable time, secure possession of the goods held, by payment of the price. This is true even though the goods so held have in the meantime risen considerably in price.** PAYMENT. Bequisites of Tender. 195. The requisites of a sufficient legal tender are as fol- lows : There must be an offer to pay in the currency which the law makes a legal tender. The exact amount of the debt must be tendered. The money must be actually pro- duced and ofifered, unless such production is waived by the vendor stating his intention not to accept. The tender must be unconditional. The vendee must continue his offer and stand ready to pay the price whenever the vendor demands the same. While a tender of payment which is refused does not excuse the vendee from the paying the price, it does excuse him from the payment of such interest on the debt as would have accrued from that time on, and also excuses him from the payment of costs if suit is brought.*^ 42 Hays V. Mouille, supra. 43 Ibid. 44 Patten's Ap., 45 Pa. 151 (1863). 45 Connell v. Green, 10 S. & R. 14 (] 14 (1823). §196 RELATION OP CONTKACTOK TO MATERIAL MEN. 87 When Iilade to an Agent. 196. A traveling salesman, if duly authorized, may accept payment so as to bind his principal, but, on the other hand, the latter will not be bound and may recover the price not- withstanding it has been paid to the agent, unless the sales- man has the bills of account for collection, or is otherwise specially authorized.*^ Promissory Note, Check, etc. 197. A promissory note in the absence of an agreement to the contrary is not absolute payment, but such agree- ment or intention is to be implied where the notes of a third person are accepted in payment at the time the purchase is made.*'' While a check is not absolute payment, yet if the creditor fails to present it to the bank upon which it is drawn within a reasonable time, and the bank fails, to the damage of the drawer, the check will be held to be absolute pay- ment.** Promissory Note, etc. Beceipt. 198. The mere possession by the vendee of a receipt in full, given for a note or check upon which payment is refused, will not of itself establish absolute payment.*^ Use of the Mail. 199. Unless the vendor expressly or impliedly authorizes the use of the mail, the sending of money in this manner will not be binding until the same has been received by the vendor. If the money is lost, the loss will fall on the ven- dee."" 46 Seiple V. Irwin, 30 Pa. 513 (1858). 47 Davis & Desauque Est., 5 Whart. 528 (1840); Jones v. Strawhan, 4 W. & S. 257 (1842) ; Mclntyre v. Kennedy, 29 Pa. 448 (1857)- 48 Mclntyre v. Kennedy, supra. 49 McLugham v. Bovard, 4 Watts, 308 (1837) ; Shepherd v. Busch, 154 Pa. 149 (1893) ; Leins v. Kaufman, 15 Pa. C. C. R. 539 (1893). 50 First Nat. Bank v. McManigle, 69 Pa. 156 (1871). 88 LAW OF BUILDERS. § 200 DECEIT. Deceit Must be of Haterial Fact. 200. In order that the vendee may set up fraud on the part of the vendor, there must have been a misrepresenta- tion or concealment of a material fact, that is to say, the fact misrepresented or concealed must have been of consider- able weight and importance in the transaction.^^ Care should be taken to distinguish between a mere expression of opinion and a misrepresentation of a fact, however. The former will not invalidate the contract, while the latter will. Bule of Caveat Emptor. 201. The rule of caveat emptor, meaning, let the buyer beware, applies to contracts of sale. So long as the vendor does nothing to conceal or mislead the buyer, mere passive concealment of certain facts, as by simply being silent with reference to them does not make him guilty of fraud or in- validate the sale.^* Where the vendor bears a relation of trust or confidence with reference to the buyer, the case is different, and he dare not conceal any detrimental fact or the sale will be invalid. There Must Have Been an Intention to Deceive. 202. In order that a sale may be set aside on account of fraud, there must have been an intention to deceive on the part of the vendor. An innocent misrepresentation will not be sufficient.^* However, if the vendor recklessly makes statements which he has no reasonable grounds for believ- ing, he will be guilty of fraud.'* SI Clark V. Everhart, 63 Pa. 347 (1869) ; Bower v. Fenn, 90 Pa. 359 (1879). SaKintzing v. McElrath, 5 Pa. 467 (1846); Butler's Ap., 26 Pa. 63 (1856). 53 Duff V. Williams, 85 Pa. 490 (1877); Dilworth v. Bradner, 85 Pa. 238 (1877). 54 Bokee & Co. v. Walker, 14 Pa. 139 (1850). §203 RELATION OF CONTRACTOR TO MATERIAL MEN. 89 Vendee Ifflust Have Been Deceived. 203. In order that the vendee may claim damages for fraud practiced upon him by the vendor, it must appear that such vendee beUeved and was deceived by the misrepresent- ation of the vendor, and that he acted upon such misrepre- sentation to his damage. He cannot recover unless he has suffered some damage by reason of his having acted upon the misrepresentation of the vendor.**^ Remedy. 204. When the vendee discovers that a fraud has been perpetrated upon him, he may rescind the contract of sale, or sue for damages suffered by him by reason of such deceit. If the vendee elects to rescind the sale, he must do so promptly and may not sleep on his rights. If he rescinds the sale he must return such goods as he has already re- ceived, unless such goods are entirely worthless.®* 55 Kerr v. Simpson, 126 Pa. 42 (1889) ; Wiest v. Grant, 71 Pa. 95 (1872) ; Phipps V. Buckman, 30 Pa. 401 (1858). 56Pearsoll v. Chapin, 44 Pa. 9 (1862). PART m. RELATION OF CONTRACTOR TO EMPLOYEES. CHAPTER IX HOW CREATED AND TERMINATED SECTION. I. Creation. 205. Introduction. 206. The relation of master and servant, defined. Ap- prentice. 207. General principles. 208. Who may employ. Time of Hiring. 209. Where no time is specified. 210. How hiring may be made permanent. 211. Where servant continues after expiration of time specified. SECTION. 212. Effect of specific time for payment. 213. Acceptance of wages. II. Termination. 214. When no time is stipu- lated. 215. Effect of death upon con- tract of hiring. 216. When time is stipulated. 217. Habitual neglect. Willful disobedience. Intoxica- tion. 218. Larceny. Embezzlement, etc. I. CREATION. Introduotion. 205. The rights and duties of the contractor with relation to the persons in his employ will next engage our attention. The law as relating to master and servant is a very broad subject, and in a work such as this we can at best hope to merely touch upon those phases of the law which are more especially applicable to the building contractor. The law as to master and servant has gone through many 90 § 206 HOW CEEATED AND TERMINATED. 91 changes since the time when, under the common law of England, the master might administer moderate punishment to his servant for misconduct. We are less surprised that such a law existed when we learn that in those days a hus- band might punish his wife by thrashing her. Even under the more modern law, the master and servant have been held to have the right to defend each other. The Belation of Master and Servant, Defined. Apprentice. 206. The relation of master and servant will be held to exist where one person employs another, for a certain con- sideration, to render service to him under the control and direction of the one so employing, or where, from the cir- cumstances under which services are rendered by one person to another, the law will imply a promise to pay to the person rendering the services whatever such services may be rea- sonably worth. A master is one who not only prescribes the ultimate end, but who may also direct the means and method of doing the work. The master may discharge for inefficiency or neglect even though the hiring be for a given time. A servant has been defined to be "one who is em- ployed to render personal service to his employer otherwise than in the pursuit of an independent calling, and who in such service remains entirely under the control and direc- tion of the latter."^ The word servant was formerly more particularly applied to persons engaged in and about a dwelling house. It has now, in its legal acceptance, how- ever, a very comprehensive import, and includes all classes of persons employed to render service under the control and direction of the one so employing. The term apprentice is applied to one who is placed with a master, by his parent or guardian, to learn some particular trade. In order that such apprenticeship may be binding, I Am. & Eng. Ency. of Law, vol. 14. P- 745; Boniface v. Scott, 3 S. & R. 353 (1817); Ex-parte Meason, S Binn. 167 (1812). 92 LAW OF BUILDERS. § 207 it is required by statute in this state that such agreement be in writing and under seal.^ General Principle. 207. Many of the general principles of the law of con- tracts, as to the parties, etc., referred to elsewhere in these pages, will apply with almost equal force to the contract of hiring. For instance, it is not necessary that there be a written contract. Nor is it necessary that there be any express agreement, as the contract may be impHed from the circumstances of each individual case. Thus, where services are rendered by one person and such services are accepted by another under such conditions as would rea- sonably indicate an intention to pay for them, the party receiving the services will be under a legal obligation to pay whatever such services may be reasonably worth.* Who May Employ. 208. Either the master or his duly authorized agent may by word or conduct create the relation of master and servant between the master and the one hired. From what we have said under the head of contracts in general, it is evident that an infant, lunatic or person so intoxicated as not to know the nature of an agreement, cannot enter into such relation by an express contract. TIME OF HIRING. Where no Time is Specified. 209. The contract may be made for such time as the parties may agree upon. Where no time is specified, the hiring will be deemed to be at will, and the employer may discharge the employee, or the employee may leave the 2 Act Sept. 29, 1770, I Sm. Laws. 3 Curry v. Curry, 114 Pa. 367 (1886); De France v. Austin, 9 Pa. 309 (1848); Swires v. Parsons, s W. & S. 357 (1843). § 210 HOW CREATED AND TERMINATED. 93 employ of the employer at any time. Where the hiring is at will the employer may discharge an employee at any time, with or without cause, and his malice in so discharging is immaterial. The fact that the employee's reputation is af- fected by unfavorable inferences drawn from the discharge, will not render the employer liable in damages.* How Hiring May be Made Permanent. 210. The general rule is that a contract of hire for the lives of the parties is unenforceable. Where, however, the servant purchases his employment, that is to say, where he gives a valuable consideration outside of and in addition to his services, under the contract, the case is different. In this event the master will be held to have agreed to retain the servant so long as the latter is able, ready and willing to perform such services as the employer may have for him to do. The master probably could not be held if he did not have the work to be done.^ Where Servant Continues After Expiration of Time Specified. 211. If the servant, after the termination of a specified period of hiring, continues in the employ of the master, with the master's consent or acquiescence, but without any express agreement, the presumption will be that the rela- tions of the parties are to be governed by the same terms as those of the contract just determined, unless, of course, a contrary intention can be shown.* Effect of Specific Time for Payment. 212. The fact that wages are made payable at certain specified periods does not necessarily determine the length 4 Beck V. Walkers, 24 Pa. C. C. R. 403 (1901); Henry v. Railroad Co., 139 Pa. 280 (1891); Coffin V. Landis, 46 Pa. 426 (1864); Peacock V. Chambers, 46 Pa. 434 (1864). 5 Beck V. Walkers, supra. 6 Wallace v. Floyd, 29 Pa. 184 (1857). 94 LAW OF BUILDERS. § 213 of hiring. Thus, where the hiring is by the year or at a yearly salary, the fact that the payments are to be made quarterly, monthly, or weekly does not change the contract to a quarterly, monthly or weekly hiring.'^ Payment of wages at frequent intervals is not inconsistent with a yearly hiring, and, on the other hand, an agreement to pay at a yearly rate is not necessarily conclusive evidence of a yearly hiring. The time of payment may, however, be admitted as evidence tending to show the length of hiring.® Acceptance of Wages. 213. The acceptance of wages according to time turned in by the person receiving the wages is indisputable evi- dence of a hiring by time and not by the job.^ II. TERMINATION. When no Time is Stipulated. 214. We have seen that where no time is mentioned in the hiring, it will be held to be at will, and that therefore, in such case, the master may discharge at any time. Effect of Death. Upon Contract of Hiring. 215. The death of either party is said to determine the contract. It has been held, however, that the death of one only of two joint employers, as partners, will not terminate the hiring.^" When Time is Stipulated. 216. Notwithstanding a contract specifies a time of hiring, there is an implied provision in every contract to the effect 7Hassenfus v. Phila. Packing Co., 15 Pa. C. C. R. 650 (1895); Kirk V. Hartman, 63 Pa. 97 (1869). 8 Hassenfus v. Phila. Packing Co., supra. 9 Webb V. Lees, 153 Pa. 436 (1893). 10 Fereira v. Sayres, s W. & S. 210 (1843) ; Johnson v. Judge, 16 Sup. Ct. 137 (1900). '§217 HOW CREATED AND TERMINATED. 95 that if the servant be incompetent or is in any way guilty •of a breach of duty toward his master, he may be discharged.^^ Habitual ITeglect. Willful Disobedience. Intoxication. 217. Habitual neglect of duty is ground for discharge.^* Failure to comply with instructions/^ or willful disobedience •of a lawful order on the part of the servant is also a good ground for dismissal, unless the disobedience is with refer- •ence to a slight and immaterial matter.^* A servant may be •discharged for drunkenness, while off duty, which renders "him incapable of a faithful and efficient performance of his work, while on duty.^® Xarceny, Embezzlement, etc. 218. The master may discharge his servant for larceny •or embezzlement, either from the master or a third person,^' or for cheating or defrauding or attempting to cheat or de- fraud his master, in any manner.^'^ 11 Kane v. Moore, 167 Pa. 275 (1895). 12 Elliott V. Wanamaker, 155 Pa. 67 (1893). 13 Peniston v. John Y. Huber Co., ig6 Pa. 580 (19CX)). 14 Matthews v. Park Bros. Co., 146 Pa. 384 (1891). iSUlrich V. Hower, 156 Pa. 414 (1893). 16 Libhart v. Wood, i W. & S. 265 (1841). J7 Singer v. McCormick, 4 W. & S. 265 (1842). CHAPTER X RECOVERY FOR WORK DONE 219. Duty to pay what services are reasonably worth. 220. Duty to pay what services are reasonably worth. Exceptions. 221. Abandonment by servant. 222. Abandonment. Notice of intention to quit. Duty of master. 223. Discharge for cause. 224. Discharge without cause. "Quantum meruit." 225. Discharge without cause. Employee must seek other employment. Wages. 226. When demandable. To whom payable. Reduc- tion of. Attachment. 227. Lien for. 228. Assignment of property of contractor for benefit of his creditors. Effect of. 229. No exemption in suits for. 230. No stay of execution. Duty to Pay What Services are Reasonably Worth. 219. We have Holy Writ as authority for the statement that the laborer is worthy of his hire, and the courts of our commonwealth have given their unmistakable endorsement to the proposition. It has been decided that where there is no agreement as to wages the servant may recover whatever his services are reasonably worth/ but in a suit for wages under such circumstances, the employee must establish by a preponderance of evidence, the facts from which the law will infer a promise to pay what the services are reasonably worth.^ Duty to Pay What Services are Seasonably Worth. ' Exceptions. 220. Notwithstanding the reasonableness of the rule just stated, there are certain exceptions to it which are equally 1 Curry v. Curry, 114 Pa. 367 (iBBOJ. 2 Johnson v. Wanamaker, 17 Sup. Ct. 301 (1901). 96 §221 RECOVERY FOR WORK DONE. 97 well founded on common sense and justice. For instance, inasmuch as a father is obliged to maintain and educate his minor children, he is entitled to the services of his minor children without compensation.* Where a man undertakes to support a step-child he is entitled to the services of such child.* Where an agreement to the contrary can be shown, however, it may be enforced, but such agreement must be shown by direct, clear and positive evidence.^ Abandonment hj Servant. 221. We have seen that where no time is specified, the servant may quit the employ of the master at any time. Where the hiring is for a specified time, if the servant abandons the work before the expiration of the time speci- fied, there can be no recovery by him for part performance," unless the employer has in some way interfered with the performance of the contract. If the employee abandons the work with the employer's consent, he is entitled to recover for work done.'^ When a servant hired for a stipulated time is obliged, through serious illness, to cease work for any considerable length of time, he may probably recover for work done up to the time of the illness, but such illness will release both parties from the contract, provided, however, that the em- ployer may set ofif such damages as he may have suffered by reason of the employee's illness and consequent inability to work.® Where the hiring is for a definite time, the em- ployee cannot recover for the time he is incapacitated for work by illness, notwithstanding a custom to the contrary.* 3 Curry v. Curry, 114 Pa. 367 (1886). 4 Brown's Ap., 112 Pa. 18 (1886). 5 Zimmerman v. Zimmerman, 129 Pa. 229 (1889). 6 Stover v. Flanigan, 2 W. N. C. 683 (1875). 7 Ely V. Wain, i W. N. C. 248 (1875); Schnuth v. Aber, 13 Sup. Ct. 174 (1900). SAllentown Iron Co. v. McLaughlin, 24 W. N. C. 343 (1889). 9 Shaw V. Deal, 7 Pa. C. C. R. 379 (1889). 7 98 LAW OF BUILDERS. § 222 Abandonment. Notice of Intention to Quit. Duty of Blaster. 222. An employee at a fixed rate, but for an unspecified time, is bound by an agreement printed upon the bottom of the receipt for his wages, signed by such employee, to the effect that if he quit the employment of the master without giving notice to the master for a certain time beforehand of his intention to quit, he shall forfeit the wages due him at the time he quits work.^* The same rule will apply where the employer posts notices on his premises, setting forth that any employee leaving without giving a week's notice shall forfeit his wages since the last pay day, and which notice was seen by the employee in question.^^ Where an employer requires of one in his employ certain notice of his intention to leave his employ, under penalty of forfeiture of part of the wages already earned by him, an act of assembly of the State of Pennsylvania, provides that if the employer discharges such employee without giving him similar notice of his intention to discharge him — except where such discharge is made for incapacity or misconduct, or on account of a general suspension — he shall be required to pay to the party injured a sum equal to the amount of said forfeiture.^^ Discharge for Cause. 223. Where the contract of hiring is at will, the master may discharge at any time. Where, in a contract for a specified time, the employee is discharged before the expiration of the term of hiring, for misconduct or incompetency, the employee, will, of course, not be entitled to any wages for the balance of the original term of hiring. It has also been held in this state that where the employee is thus discharged for cause before the expiration of the term of hiring, he cannot recover for serv- loPottsville I. & S. Co. v. Good, 116 Pa. 358 (1887). 11 Mick V. Chester Steel Casting Co., 8 Del. 209. 12 Act May 23, 1887, P. L. 181, § i. § 224 RECOVERY FOR WORK DONE. 99 ices rendered subsequent to the last pay day, under the terms of the contract, before his discharge.^* Under this ruHng, if by the term of the contract, wages were to be paid weekly, monthly or quarterly, and the employee was dis- charged for cause between any such fixed times for pay- ment, he would forfeit his wages for services rendered subsequent to the last time for payment, under the contract, before his discharge. Bischarge Without Cause. "Quantum Meruit." 224. Where- an employee for a specified time has been wrongfully discharged without cause, before the expiration of the time fixed, he may either treat the contract as still in existence, holding himself in readiness to perform his part of the contract, and sue for the wages fixed by the terms of the contract, either as the wages fall due under the con- tract or at the end of the term, or, on the other hand, he may treat the contract as rescinded, and sue the employer for damages sustained by reason of his wrongful discharge.-'* If he resort to the latter remedy, he can sue but once, and cannot bring another action at the end of the term for wages which would have accrued subsequent to the first action, under the terms of the contract.'^ If the employee elects to treat the contract as rescinded his recovery will be based on the quantum meruit or the value of the services rendered, without regard to the wages fixed by the contract re- scinded.^* Bischarge Without Cause. Employee XEust Seek Other Em.ployment. 225. While the employee thus wrongfully discharged may recover as stated, he is bound to seek diligently for other 13 Peniston v. Huber Co., 196 Pa. 580 (igoo). 14 Allen V. Colliery Engineers' Co., ig6 Pa. 512 (1900). 15 Eisenhower v. School District, 13 Super. Ct 51 (igoo). 16 Nixon V. Myers, 141 Pa. 477 (1890); Algeo v. Algeo, 10 S. & R. 23s (1823). 100 LAW OP BUILDERS. § 225 employment/^ and the money which he would be entitled to under such other employment as he may have secured must be deducted from the amount he claims as due him from the first employer/® This amount must be deducted, even though he has in fact received nothing, owing to the in- solvency of the second employer.^* It should be understood, however, that the employee is not obliged, in order that he may recover under the former contract, to seek or accept an inferior position or a different kind of work from that at which he has heretofore been employed.^" For example, a carpenter or a bricklayer would not be obliged to accept employment as a laborer. An employee need not accept employment at a place far distant from that at which he was employed when dis- charged. Where the employee voluntarily acquiesces in his dis- charge, he cannot recover for wages which would have ac- crued, under the contract, subsequent to the time of dis- charge and prior to the time the hiring would have termi- nated under the contract.^^ The fact that he seeks employ- ment elsewhere cannot be construed as an acquiescence in his discharge,^* nor can his acceptance of a new employment under the same master be deemed an acquiescence in his former discharge, so long as he continues to maintain his rights under the former contract.^^ While the employee must hold himself ready and willing to resume work for the employer under his contract of hire, in a suit for recovery 17 King V. Steiren, 44 Pa. 99 (1862) ; Chamberlain v. Morgan, 68 Pa. 168 (1871). 18 Hand v. Qearfield Coal Co., 143 Pa. 408 (1891). 19 Stewart v. Walker, 14 Pa. 293 (1850). 20 Harger v. Jenkins, 17 Sup. Ct. 615 (1901) ; Wolf v. Studeback, 65 Pa. 459 (1870). 21 Schnuth V. Aber, 13 Super Ct. 174 (1900). 22 Van Schaick v. Wannemacher, S Atl. Reps. 31 (1886). 23 Beck V. Walkers, 24 Pa. C. C. R. 403 (1897). § 226 RECOVERY FOR WORK DONE. 101 of wages under such contract, the employee need not aver such willingness and readiness.^* WAGES. When Demandable. To Whom Payable. Beduction of. Attach- ment. 226. If the contract of hire is for a day, month or year, the servant may demand his wages at the close of the day or end of the month or year, as the case may be, unless, of course, certain times are fixed for the payment of wages, in the terms of the contract of hire. A contract to serve for one year at a stipulated sum per month is severable, and suit may be maintained for monthly arrears, although the year has not yet expired.^" Where a building in course of erection is destroyed by fire, wind, or in any other manner, before completion, a servant employed to work in that particular building for a specified time may recover from his employer for work already done by him, but, if the destruction of the building takes place before the expiration of the time for which the servant was hired, such servant cannot recover wages for the balance of such unexpired time.^® Accepting a reduction of wages from week to week with- out objection or demand for more, raises the presumption that the money is paid or received under an agreement for a reduction.^^ Unless the employer has the express or implied consent and authority of his employee to pay his wages to a third person, he must pay the wages to such employee in person, and if he pays to another without such authority or implied consent, he will be answerable to such employee. A father, however, is entitled to the wages of his minor son, 24 Van Schaick v. Wannamacher, 5 Atl. Reps. 31 (il 25 Telephone Co. v. Root, 17 W. N. C. 200 (1886). 26 Lovering v. Buck Mt. Coal Co., S4 Pa. 291 (1867) 27 Osborn v. Presser, 8 Dist. Reps. 271 (1898). 102 LAW OF BUILDERS. § 227 but where the father has repeatedly allowed the minor son to draw his own wages, the father could not hold the em- ployer liable for having paid the wages to such minor son. Under the laws of Pennsylvania, the wages of an em- ployee are not liable to attachment in the hands of his em- ployer,^* except for four weeks' board.^^ This legislation, however, was not intended to protect the profits of a con- tractor, who employs others, but only to secure to the em- ployee what he has earned with his own hands. ^^ liien for. 227. The idea is somewhat general, among laymen, that a mechanic or laborer employed in or about the erection or alteration of a structure, is entitled to a lien for such serv- ices. This is erroneous, however, as the courts of the com- monwealth have held that journeymen and day laborers, though employed by the owner or contractor, are not en- titled to a lien, the law considering them as working on the credit of their employers, and not of the building.^^ This confusion in the minds of laymen is probably due to the fact that under the act of May 12, 1891, P. L. 54, enlarging the act of April 9, 1872, P. L. 47, and amending the act of June 3, 1883, P. L. 116, the wages of certain classes of servants, to a certain amount, for work rendered within a specified time, were given a preference. These acts, however, only included such services as in the course of a regular and permanent employment, contribute directly or indirectly to the particular, permanent and continuous use of "works, mines, manufactory or other business," and not such labor or services as contribute to the construction and equipment 28 Act April IS, 184s, P. L. 459, § 5. 29 Act May 8, 1876, P. L. 139. 30 Smith V. Brooke, 49 Pa. 147 (1865). 31 Wrigley v. Mahaffey, S Dist. Reps. 389 (1896) ; McMurtrie v. Mc- Cann, 8 Kulp, 432 (1897); Harlan :;. Rand, 27 Pa. 511 (1856). §227 EECOVEKY FOR WORK DONE. 103 of such structures.^^ Mr. Justice Clark says : "A carpenter, a blacksmith or machinist, regularly employed in a manu- factory to conduct continuously the repairs and regulate the machinery — indeed, any laborer who by a continuous em- ployment contributes to the general work or manufacture, is within the meaning of this act, but the labor of those who are only temporarily employed in repairing, are in no sense operatives."^^ On June 17, 1887, P. L. 413, an act was passed providing that a Hen could be obtained by mechanics and laborers un- der existing laws of the state. This was declared unconsti- tutional by the courts.** It should be noted, however, that the mere fact that the amount alleged to be due was to be determined by the days occupied in the work, would not, where the work was done under a contract with the owner, and on the credit of the building, take such person out of the class of contractors contemplated by our mechanics' lien laws as entitled to a lien.*® In order that laborers and mechanics might be the better • protected in their rights, § 22 of the act of June 4, 1901, provided, in part, as follows: "Where a claim has been filed which includes unpaid items of labor or materials, fur- nished by one who contracts with the claimant, whether or not such party is himself entitled to file a claim against the property, such party may, at any time before actual payment or satisfaction of the claim, file of record in said proceeding a petition, under oath or affirmation, setting forth how his interest arises and the extent thereof, and praying that he be substituted as a use-claimant to the extent of said interest, but not exceeding the balance due to the claimant." Upon 32 Llewellyn's Ap., 103 Pa. 458 (1883); Rees v. Hulings, 9 Super. Ct. 26s (1899). 33 Llewellyn's Ap., supra. 34Titusville Iron Works v. Keystone Oil Co., 122 Pa. 627 (1888). 35 Barnes v. Wright, 2 Whart. 193 (1836). 104 LAW OF BUILDERS. § 228 a hearing of the facts the court will make such order or decree as the facts shall warrant. Assigniaent of Property of Contractor for Benefit of Ms Creditors. Effect of. 228. Where property of a contractor is assigned to trus- tees, for the benefit of his creditors, a claim for wages for work done for such contractor in any of his operations, shall have preference, to the amount of $ioo, out of the proceeds of such sale.^* It has been held, however, that such claim could not trench upon the real estate fund to the prejudice of prior liens.^'^ ITo Exemption in Suits for. 229. There is no exemption of property from attachment, levy or sale, in this state, upon execution upon judgment for the amount of $50 or less, obtained for wages for manual labor.** ITo stay of Execution. 230. Under an act of assembly of this commonwealth, no stay of execution is allowed on any judgment for $100 or less, for wages for manual labor.** 36 Act April 22, i8S4, P. L. 480; Hall's Est., 148 Pa. 121 (1892). 37 PoUinger's Est., i York, 197 (i88i). 38 Act of May 17, 1883, P. L. 34. 39 Act of May 14, 1874, P. L. 145. CHAPTER XI DUTY AND LIABILITY OF MASTER I. Duty of Master. 231. To hire competent serv- ants. 232. To provide safe place. 233. To provide safe machinery, appliances, etc. 234. Master need not provide latest or best machinery, etc. 235. Notice to servant of de- fects in machinery, etc. 236. To notify servant of latent dangers incident to work. 237. Master's duty to infants. 238. Where servant assumes risk. II. Liability of Master. 10 Singer v. McCormick, 4 W. & S. 265 95 Singerly v. Doerr, 62 Pa. 9 50, 53 Singerly v. Thayer, 108 Pa. 291 26, 40 Sinnott v. Mullin, 82 Pa. 333 35 Smith V. Brooke, 49 Pa. 147 102 Smith V. Johnson, ^6 Pa. 191 139 Smith V. Nelson, 2 Phila. 113 52 Smith V. Simmons, 103 Pa. 32 126, 127, 128 Smyth V. Craig, 3 W. & S. 14 80 Sneathen v. Grubbs, 88 Pa. 147 81 Snodgrass v. Gavit, 28 Pa. 221 29 Somer v. Harrison, 8 Atl. Reps. 799 114 Speas V. Bog'gs, 198 Pa. 112 115 Stauffer v. Manheim Mut. Fire Ins. Co., 150 Pa. 531 68 Stewart v. Walker, 14 Pa. 293 100 TABLE OF CASES. 243 PAGE. Stille V. Simones, 12 W. N. C. 437 130 Stover V. Flanigan, 2 W. N. C. 683 97 Stutz V. Coal & Coke Co., 131 Pa. 267 26 Sweeny v. The Franklin Fire Ins. Co., 20 Pa. 337 66 Swires v. Parson, 5 W. & S. 357 92 Tagg V. McGeorge, 155 Pa. 368 109 Telephone Co. v. Root, 17 W. N. C. 200 loi Temple Iron Co. v. Carmonoskie, 10 Kulp, 37 121 Terra Cotta Co. v. Sharp, 190 Pa. 256; s. c, 7 Dist. Reps. 544 20, 40 Thompson v. Porter, 14 Pa. C. C. R. 232 53 Tissue V. R. R. Co., 1 12 Pa. 91 106, 107 Titman v. Titman, 64 Pa. 480 76 Titusville Iron Works v. Keystone Oil Co., 122 Pa. 627 103 Trainor v. P. & R. R. R. Co., 137 Pa. 148 106 Tube Works v. Bedell, 96 Pa. 175 1 14 Twenty-four Journeymen Tailors, Wright's Crim. Con- spiracies 118 Ulrich V. Hower, 156 Pa. 414 95 Van Schaick v. Wannamacher, 5 Atl. Reps. 31 100, loi Vincent v. Oil Co., 165 Pa. 402 80 Wade V. Haycock, 25 Pa. 382 25, 27, 29, 39 Wagner et al. v. Henderson et ux., 3 Penny. 248 11, 59 Walker v. France, 1 12 Pa. 203 9 Walker Overseers v. Marion Overseers, 148 Pa. i 6 Wallace v. Floyd, 29 Pa. 184 93 Walton V. Bryn Mawr Hotel Co., 160 Pa. 3 115, 127 Warren Bor. v. Daum, 73 Pa. 433 78 Webb V. Lees, 153 Pa. 436 94 Wenger v. Bernhardt, 55 Pa. 300 85 Western Nat. Bank's Ap., 102 Pa. 171 133, 135 Whelen v. Boyd, 114 Pa. 228 40, 71 White V. Braddock Bor. School Dist., 159 Pa. 201 . . 18,23,32, 33 Wick China Co. v. Brown, 164 Pa. 449 121 Wier V. Bell's Ap., 81* Pa. 203 146 Wiest V. Grant, 71 Pa. 95 89 Wildee v. McKee, 1 1 1 Pa. 335 123 244 TABLE OF CASES, PAGE. Wilhelm v. Caul, 2 W. & S. 26 39 Wilkinson v. CoUey, 164 Pa. 35 24 Wilkinson v. Mfg. Co., 198 Pa. 634 108 Wilson V. Bigger, 7 W. & S. 1 1 1 y7 Winton Bor. v. Mulherin, 3 Lack. L. N. 264 26 Wischam v. Rickards, 136 Pa. 121 1 14 Witmarr v. Wagner, 4 Luz. L. R. 252 31 Wolf V. Studeback, 65 Pa. 459 100 Woods V. Russell, i Cent. R. 336 10 Wray v. Evans, 80 Pa. 102 143 Wrigley v. Mahaflfey, 5 Dist. Reps. 389 102 Wust V. Erie City Iron Works, 149 Pa. 263 1 13, 116 York Mfg. Co. v. Oberdick, 10 Dist. Reps. 463 121 Zearfoss v. F. & M. Inst., 154 Pa. 449 11 Zimmerman v. Zimmerman, 129 Pa. 229 97 Zurnz;. Tetlow, 134 Pa. 213 115 INDEX Numbers refer to sections. ABANDONMENT, of building contract by contractor, 159. when details are unprovided for in building contract, 19. great deviation from original building contract, 20. part performance, no recovery by contractor, 94. back-pay, employee wrongfully abandoning employment cannot recover for, 221. ACCEPTANCE, See Sale, under Ofier and Acceptance, of work under building contract, 76. . injury to third persons subsequent to acceptance by owner, 272. effect of occupancy, 76. acceptance of keys, TJ. ACTS OF ASSEMBLY, 1770, September 29, i Sm. L. 309. Apprentices, 206. 1721, February 24, 2 Sm. L. 124. Party walls in Philadelphia, 261. 1845, April IS, P. L. 4S9, Sec. 5. Attachment of wages, 226. 1847, March 3, P. L. 200. Borough auditors to be fence viewers, 263. 1849, April 10, P. L. 600. Right of purchaser, as to party walls, 260. 1854, April 22, P. L. 480. Assignment for benefit of creditors, by contractor, 228. i8ss, April 26, P. L. 308, Sec. i. Statute of Frauds, 156. 1869, May 8, P. L. 1260, Sec. I. Right of mechanics, etc., to organize, 250. 245 246 INDEX. Numbers refer to sections. ACTS OF ASSEMBLY— (Continued.) 1872, June 4, P. L. 117s, Sec. i. Right of mechanics to quit work in a body and peaceably persuade others to do likewise, 250. 1874, May 14, P. L. 145. No stay of execution on judgment for wages, 230. 1876, April 20, P. L. 4S, Sec. i. Interpretation of clause of act of June 4, 1872, relating to right of mechanics, etc., to peaceably persuade others from work- ing, 250. 1876, May 8, P. L. 139. Attachment of wages for four weeks' board, 226. 1883, May 17, P. L. 34. Exemption of wages from attachment, 226. 1887, May 23, P. L. 181. Notice by employer to employee of intention to discharge, 222. 1889, May 8, P. L. 133. Classification of cities in Pennsylvania, 261. 1893, May II, P. L. 41. Protection of floors above third in new buildings, 232. 1895, June 7, P. L. 13s. Building laws in cities of the second class, 262. 1897, July 12, P. L. 259. Fire escapes, 266. 1899, May S, P. L. 197. Building laws in cities of the first class, 261. 1901, June 4, P. L. 431. Mechanics' liens, 106-146. 1903, April 24, P. L. 230. Amendment of Section 15 of act of June 4, 1901, P. L. 431, 109. ACTIONS AT LAW, when decision of agent is a bar to, 37. "ACT OF GOD," defined, 83. destruction of work, 89. eflfect upon building contract; performance, 83. delay, 84. ACQUIESCENCE IN DISCHARGE, See Master and Servant. INDEX. 247 Numbers refer to sections. ADVERSE POSSESSION, title by, 257. does not operate against municipality, 257. AFFIDAVIT, to claim for lien, 137. AGENT, with relation to building contract, 34-45. custom, advantage of, 34. authority; should be clearly defined, 34. should be written, 35. extent of, 36. decision binding upon both parties, 37. when extending to sub-contractor, 39. agreement for notice by, 40. when binding upon sub-contractor, 41. "Progress Certificate." not binding upon owner, 42. "Certificate of Approval," 36, 43, 98-103. must be given by agent last employed, 43. when given in collusion with contractor or sub-contractor, 36. when amount due is not stated, loi. with relation to sales, 171, 172, 189, 196. authority to accept ofter, 171. to exercise right of stoppage in transitu, 189. of salesman to make settlement, ig6. mail, 172. telegraph and telephone companies, 172. AGREEMENT, See Building Contract. defined, 10. express and implied, 10. distinguished from specifications, 9. supplementary agreement, as affecting bondsmen, 158. ALTERATIONS, notice by contractor to agent of intention to make, 45. structure or erection, distinguished, 120, 295. lien, for what alterations, 119. 248 INDEX. Numbers refer to sections. AMBIGUOUS CLAUSES, See Contract. APPRENTICE, defined, 206. relation; how created, 206. contract must be under seal, 206. APPROVAL, See Certificate of Approval. ARBITRATOR, See Agent. provision as to, in building contract, 26. ARCHES, falling of, 40. ARCHITECT, See Agent. arches; falling of due to defects in plans, 40. delay due to defects in plans, 55. extras; when owner bound by oral orders for, given by architect, 45. certificate of approval; withholding of, 98. contractor cannot take refuge behind defective plans of, 66, 271. ASSIGNMENT, by contractor for benefit of creditors, 228. employees preference for wages, 228. of right to file mechanics' lien, 118. of lien entered of record, 118. ATTACHMENT, of wages of employee, 226. for four weeks' board, 226. AUTHORITY, See Agent. Sale. INDEX. 249 Numbers refer to sections. "BACK PAY, See Wages. BALCONY, See Encroachment. BANKRUPTCY, See Insolvency. as affecting rights of parties to a contract, 312. BAY-WINDOW, See Encroachment. BID, See Proposals. BILL OF EXCHANGE, See Sale. effect of delivering goods without payment of bill of exchange, 182. BILL OF LADING, See Sale. effect of assignment of, 181. BLACKLISTING, extent of employer's right to, 251. BOND, See Bondsmen. BONDSMEN, generally, 154. surety and guarantor, distinguished, 155. "To be responsible for" another, 155. Statute of frauds, 156. release of, 157. 250 INDEX. Numbers refer to sections. BONDSMEN— (Continued.) release of, alterations, 157. agreement waiving notice, 157. supplemental agreement, 158. breach of contract by contractor, 159. right of bondsmen to appropriate material on hand, 159. duty of bondsmen as to surplus, 159. BREACH OF CONTRACT, See Bondsmen. Building Contract. Master and Servant. BREACH OF DUTY, See Master and Servant. BUILDING, material must be furnished on credit of to secure lien, 124. removal of, as aflecting right to lien, 126. duty of owner to provide safe place to build, 87. destruction of, 89, 90, 122. who must bear loss, 89, 90. no lien when building is destroyed before completion, 12: insurance; discontinues when building falls, 152. subject to lien; see Mechanics' Liens. demolition of; lien for, 121. BUILDING CONTRACT, See Building Lines. Contract. Contractor. Insurance. Master and Servant. Mechanics' Liens. Owner. defined, 10. component parts, 9. agreement and specifications, distinguished, 9. need not be in writing, 11. advantage of being written, 11. interpretation. See Contract. ' parties, care necessary in naming, 21. corporations, 22. INDEX. 261 Numbers refer to sections. BUILDING CONTRACT— (Continued.)- property, sufficiency of description, 23. consideration, 24, 308, 309, 349. payiiients, 24. time, 24. effect upon sub-contractor, 309. stay of execution, 309. amount, 24. to whom payable, 24. when to be in other than legal tenders, 308. delivery of receipt may be made a pre-requisite, 349. time, obligation of contractor to complete as agreed, 46. when no time is mentioned, 48. delay, 25, 53-57- owner's conduct, 53. defective material, 54. changes in proposed work, 55. penalty; liquidated damages, 56. rescission of contract by owner for failure to commence, 57. a defective performance the same as no performance, 57. subsequent attempt to complete, 58. extension of time, 49. extra work, 50. defective work; where to be made satisfactory, 51. inclement weather, 52. act of God, 84. manner, obligation of contractor to complete as agreed: must be workmanlike, 61. specific performance, 62. contractor must comply with plans and specifications, 65. contractor may not improve upon plans and specifications, 68. contractor cannot take refuge behind defective plans, 66, 271. absence of covenants as to results, 67. work must be suitable for purposes contemplated, 70. substantial performance sufficient, 71. "as good as the first one," 72. immaterial defects, allowance for, 73, 328. non-performance; when excused, 38, 78-82. interference of owner, 78. act of agent, 38. what constitutes acquiescence of owner, 79. defects in plans and specifications, 80. alterations in plans and specifications, 81. omission of duty by owner, 82. failure to notify of latent dangers in place, 87. 252 INDEX. Numbers refer to sections. BUILDING CONTRACT— (Continued.) omission of duty by owner, failure to furnish material, 75. "act of God," 83-86, 89. performance, 83. delay, 84. inclement weather, 85. fire; delay, 86. destruction of property, 87-90. result of latent defects in ground, etc., 87. patent defects, 88. act of God, 89. contractor's negligence, go BUILDING LINES, See Encroachments. duty to avoid encroaching upon, 256. "BY" A CERTAIN TIME, meaning of in building contract, 47. CERTIFICATE OF APPROVAL, See Building Contract. must be given by agent last employed, 43. when given in collusion with contractor, 36. when withheld by owner's instructions, 100. CHECK, See Payment. not absolute payment, 197. presentation; eflfect of failure to present in reasonable time, 197. CLAIM, See Mechanics' Lien. CLAIMANT, defined, 293. COMMON CARRIER, See Delivery. Sale. Stoppage in Transitu. when delivery to common carrier aflfects title, 180. INDEX. 253 Numbers refer to sections. COMMUNICATION, of acceptance, necessary to make contract of sale, 169. CONCEALMENT. See Deceit. of material fact in sale, 200. CONDUCT, may indicate intention of parties to a building contract, 11. may establish authority of owner's agent, 35. of employee; when ground for discharge, 217, 218. CONFLICT, See Contract. CONSIDERATION, See Wages. Payment. building contract, 24, 98, 103. building contract should specify to whom payment is to be made, 24. when certificate of approval is a prerequisite to payment of, 103. payment of; when agent has expressed approval, and with- holds, 98. Sale, 17s, 176. when no consideration is named, 175. when to be fixed by third party, 176. CONTRACT, See Agreement. Building Contract. Contractor. Master and Servant. Owner. Sale. need not be in writing, 11. advantage of being written, 11. may be written with pencil or ink, 11. interpretation, 12-20, 47, 105. when partly printed and partly written, 13. 254 INDEX. Numbers refer to sections. CONTRACT— (Continued.) interpretation, prior negotiations; presumption when to be reduced to writing, 12. preliminary written agreements, 12. several instruments, 14. material deviation from contract, 20. annullment; omission of material details, 19. variation of written, 14-20. contemporaneous oral agreement, 17. subsequent oral agreement, 18. technical words, 15. ambiguous clauses, 16. "by" and "within" certain time, 47. "within'' certain figures, 105. supplemental contract; as afifecting bondsmen, 158. invalid contract; when not made in good faith, 297. CONTRACTOR, See Agent. Contract. Master and Servant. Mechanics' Lien. Negligence. Owner. Sub-Contractor. defined, 6, 293. obligation to complete as agreed, 46-76. time, 46-58. manner, 59-76. destruction of property; liability for, 89, 90. latent defects in ground, etc., 87. patent defects in ground, etc., 88. act of God, 89. contractor's negligence, 90. assignment for benefit of creditors, 228. insurance; right to. See Insurance. relations to employees. See Master and Servant. relation to owner. See Owner. Agent. relation to public. See Negligence. CONTRIBUTORY NEGLIGENCE, signalling engineer to go ahead, in face of danger, 248. failure to watch box of derrick known to be descending, 248. continuing to work with incompetent helper, 248. emergency, 248. INDEX. 255 Numbers refer to sections. CORNICE, See Encroachment. CORPORATION, contracts by, 22. authority of agent, 22. CREDIT, See Mechanics' Lien. material and labor must be furnished on credit of building, 124. presumption as to, 124. giving of credit postpones proceedings on lien, 141. stoppage in transitu; eflfect of giving credit to vendee, 193. CRIMINAL CONSPIRACY, See Strike. of employer, 251. of employee, 251. DAMAGES, See Delay. Destruction of Work. Negligence. for deceit, 204. for discharge without cause, 224. for injury to employee, 245-248. proof of relation necessary, 245. negligence of master must be shown, 246. fellow-servant, 247. vice-principal, 247. contributory negligence, 248. DANGER. See Master and Servant. duty of owner to provide safe place, 87. DATE, meaning of "by" and "within" certain time, 47. when lien takes effect, 143. 256 INDEX. Numbers refer to sections. DEATH, effect upon contract of employment, 215. of one of several employing partners, 215. DECEIT, must have been of material fact, 200. rule of caveat emptor, 201. relation of trust or confidence, 201. concealment of material fact, 200. silence, 201. vendor must have intended to deceive, 202. vendee must have been deceived, 203. remedy, 204. must be availed of promptly, 204. DEFECT, See Building Contract. Plans. forfeiture of contract for, 70. immaterial defects, allowance for, 73. DELAY, See Building Contract. provision for, in building contract, 25. defective plans of architect, 80. owner's act or omission, 53, SS, 75, 82. failure to build foundations, 82. failure to give lines, 82. failure to construct siding, 82. failure to furnish material, 75. change in proposed work, 55. contractor's negligence, condemnation of material, 54. alterations in proposed work, 55. act of God, 84. fire; effect of clause as to, 86. rescission of contract by owner on contractor's failure to con*- plete within time limited, 57. subsequent attempt by contractor to complete, 58. penalty, 56. liquidated damages, distinguished, s6. INDEX. 257 Numbers refer to sections. DELIVERY, See Sale. Stoppage in Transitu. to common carrier by vendor; effect upon title, i8o. to vendee, 185. receipt and acceptance, distinguished, 186. DESCRIPTION, what necessary in claim to secure lien, 136. DESTRUCTION OF WORK, act of God, 83, 84, 89. performance, 83. delay, 84. result of latent defects in ground, etc., 87. result of patent defects in ground, etc., 88. contractor's negligence, go. no lien can be had when work is destroyed before acceptance, 122. insurance ceases when structure falls, 152. right of contractor to, under act of June 4, 1901, 150. recovery for work done, contractor, 87-89. employee, 226. DISCHARGE, See Master and Servant. DISOBEDIENCE, when ground for discharge of employee, 217. DISPUTES, provisions for settling should appear in building contract, 26. DRAWINGS, See Plans. DRUNKENNESS, See Intoxication. 17 258 INDEX. Numbers refer to sections. DUTY, See Building Contract. Contractor. Master and Servant. Owner. Sub-Contractor. EASEMENT, See Encroachment. effect of adverse possession, 257. light and air, 267. EAVES DRIP, may not be drained upon property of anotlier, 258. EFFECT OF LIEN, See Mechanics' Lien. EMBEZZLEMENT, ground for discharge of employee, 218. EMPLOYEE, See Master and Servant. EMPLOYER, See Master and Servant. ENCROACHMENT, upon public street, 256, 274. building material, etc., 274. cornices, balconies, etc., may project unless unsafe, 256. bay-window may be removed by municipality if dangerous, 256. precipitation of snow and ice from roof, 256. adverse possession does not operate against municipality, 257. upon private property, 257-264. building lines, 257-264. cornices, balconies, etc., may not project beyond. 258. INDEX. 259 Numbers refer to sections. ENCROACHMENT— (Continued.) upon private property, party wall, 259-262. drainage of eaves drip upon property of another, 258. rights arising by adverse possession, 257. ENTIRE CONTRACT, See Recovery for Work Done. EXECUTION, See Mechanics' Lien. no stay of execution on judgment for wages, 230. EXEMPTION, no exemption of property on judgment for wages, 229. EXPRESS CONTRACT, See Contract. EXTRAS, See Building Contract. Recovery for Work Done. defined, 27. agreement as to, 27-31. should be in writing, 28. architect cannot orally waive provision requiring to be in writ- ing, 44. price should be fixed before entering upon work, 28. waiver of provision requiring orders for, to be in writing, 29. where original contract must be in writing, 30. extension of time limited, 50. FATHER, right of father to services of minor children, 220. effect of agreement to the contrary, 220. FELLOW-SERVANT, See Contractor. Master and Servant. Negligence. 260 INDEX. Numbers refer to sections. FELLOW-SERVANT— (Continued.) generally, 239. defined, 239. same scope of employment, 243. voluntary tender of services, 244. liability of master for injury to employee resulting from acts of fellow-servant of one injured, 247. foreman or gang-boss, 239. FENCE, when mechanics' lien may be had for building, 119. specific performance on a contract to build, 62. FIRE ESCAPES, when necessary, 266. nature of, 266. penalty for failure to provide, 266. action for damages in case of death or personal injuries, 266. FIRE INSURANCE, See Insurance. FLOORS, all floors above the third to be covered during erection, 23^ FLUCTUATION, in price. See Sale. "FLUSHING IN," See Performance. FOREMAN, See Fellow-Servant. FORFEITURE, See Building Contract. FORMS, Building Contract: agreement, 275. INDEX. 261 Numbers refer to sections. FORMS— (Continued.) Building Contract: specifications, 276. bond, contractor to owner, 278. owner to contractor, 279. Mechanics' Lien: waiver of right to file lien, 277. assignment of right to file claim, 280. assignment of lien subsequent to filing, 291. notice to owner of intention to file lien, 283, 284. by sub-contractor for alteration, 283. by sub-contractor for new structure, 284. sworn statement by sub-contractor, 284a. claim, 285. affidavit, 285. notice to owner of having filed lien, 286. affidavit by contractor or sub-contractor of having notified owner of having filed claim, 287. notice by owner to contractor that he has been notified of amount due by contractor to sub-contractor, 288. notice by owner repudiating contract made by another, 281.. notice by owner repudiating work done on his permises, 282. tenant : consent of owner to tenant to improve leased property, 289. certificate that improvements made by tenant were authorized by owner, 290. laborer: petition to court by laborer to be substituted as use- claimant, 292. FOUNDATION, See Encroachment. Support. FRAUD, See Deceit. Sale. in certificate of approval, by agent and contractor, 36. GUARANTOR, See Bondsmen. HIRING. See Master and Servant. 262 INDEX. Numbers refer to sections. ICE, precipitation from roof to street, 256. ILLNESS, effect upon contract of hire, 221. IMPLIED CONTRACT, See Contract. INCOMPETENCY, See Master and Servant. ground for discharge, 216. INDEPENDENT CONTRACTOR, See Contractor. Negligence. defined, 252. payment of wages by the day, effect of, 252. relation to employees. See Master and Servant. relation to owner. See Owner. liability of, 268-272. for act of servant, 268. willful trespass, 269. for defective scaffolding, 270. to one not in his employ, 270. for act of sub-contractor, 271. architect, 271. for improper use of the streets, 274. for injuries to adjoining properties, 273. for injuries to third persons subsequent to acceptance of build- ing by the owner, 272. INFANTS, ability to make contract, 163, 208. of sale, 163. of hire, 208. father entitled to services of, 220. step-father, 220. wages of, to whom payable, 226. master's duty to notify infant of danger, 237. when dangers are as evident to infant as to adult, 237. INDBX. 263 Numbers refer to sections. INJUNCTION, against interference with employees, 251. INSOLVENCY, effect of insolvency of contractor upon bondsmen, 155. essential to right of stoppage in transitu, 192. INSPECTION, when inspection of goods is necessary to transfer title, 183. INSPECTOR, See Sale. Inspection. of machine; when operator becomes fellow-servant of inspector, 242. INSURANCE, who may insure, 148. right of contractor and sub-contractor under act of June 4, 1901, 150. method adopted to protect owner and contractor, 148. woodwork deposited apart from building being erected, 149. increase of hazard, 151. permission to make improvements, 151. insurance discontinues when building falls, 152. storm insurance, 153. INTENTION, See Building Contract. Contract. Deceit. Sale. INTERFERENCE OF OWNER, See Building Contract. INTERFERENCE WITH EMPLOYEES, See Master and Servant. INTERPRETATION, See Contract. 264 INDEX. Numbers refer to sections. INTOXICATION, when ground for discharge of employee, 217. when employee is intoxicated off duty, 217. effect uoon contract of sale, 165. JUDGMENT, See Mechanics' Lien. no exemption on judgment for wages, 229. no stay of execution on judgment for wages, 230. KEYS, acceptance of; effect upon building contract, 77. LABORER, See Mechanics' Lien. LARCENY, when ground for discharge of employee, 218. LESSEE, power of, to impose lien on property leased by him, 117. LIEN, See Mechanics' Lien. Wages. LIGHT AND AIR, easement as to, 267. LUMBER, See Material. • LUNATICS, power to make contract, 164, 208. of sale, 164. of hire, 208. no lien can be had against property of, 127. INDEX. 265 Numbers refer to sections. MACHINERY, duty of master to provide safe machinery, 233. need not provide latest or best, 234. must give notice of defects, 235. must give notice of dangers connected virith, 236. infants, 237. MAIL, See Payment. Sale. MASTER AND SERVANT, See Wages. Fellow-Servant. Vice-Principal. relation, 205-208. defined, 206. creation of, 205-208. apprentices, 206. general principles, 207. who may enter into, infants, 208. lunatics, 208. eflfect of intoxication upon contract, 208. time of hiring, 209-213. when no time is specified, 209. how employment may be made permanent, 210. continuation after expiration of time limited, 211. eflfect of specified times for payment of wages, 212. termination of hiring, 214-218. when no time is stipulated, 214. death of either party, 215. one of several employing partners, 215. when time is stipulated, 216. incompetency, 217. habitual neglect, 217. willful disobedience, 217. intoxication, 217. larceny, 218. embezzlement, 218. when master must give notice of intention to discharge, 222. 266 INDEX. Numbers refer to sections. MASTER AND SERVANT— (Continued.) recovery for work done, 219-225. master's duty to pay what services are reasonably worth, 219. facts from which such presumption will arise, 219. exceptions, 220. father, 220. step-father, 220. agreement to the contrary, 220. abandonment of work by employee, 221. no recovery for part performance, 221. where master acquiesces in abandonment, 221. notice by employee of intention to quit, 222. illness of employee, 221. recovery for work done, 219-225. discharge, 223, 224. for cause, 223. back-pay, 223. without cause, 224. quantum meruit, 224. remedy, 224. employee must seek other employment, 225. acquiescence in discharge, 225. seeking other employment is not, 225. accepting other employment with same master, 225. duty of master, 231-238. to hire competent servants, 231. to provide safe place, 232. scaffold, 232. trench, 232. floors above third, to be covered, 232. to provide safe machinery, 233. need not be latest or best, 234. notice of defects or latent dangers, 235. infants, 237. when servant assumes risks of employment, 238. liability of master for fellow-servant and vice-principal, 239, 247, 248. damages by servant for injuries sustained in employment, 245-248. proof of relation necessary, 245. negligence of master must be shown, 246. falling of floor, 246. contributory negligence. 248. interference with employees, 249-251. generally, 249. early English laws, 249. INDEX. 267 Numbers refer to sections. MASTER AND SERVANT— (Continued.) interference with employees, early American cases, 249. boot and shoemakers of Philadelphia, 249. twenty-four journeymen tailors, 249. later Pennsylvania cases, 249. legislation in Pennsylvania, 250. May 8, 1869, as to right to organize, 250. June 14, 1872, right to persuade others to refuse to work, 250. April 20, 1876, interpretation of act June 4, 1872, 250. object of legislation as determined by courts, 251. picketing, 251. boycotting, 251. combinations of employers, 251. blacklisting, 251. MATERIAL, See Sale. substitution; when owner cannot claim set-off for, 39. delay; resulting from condemnation of material, 54- bondsmen; appropriation of material by, in case of abandonment or insolvency of contractor, 159. lien for, 123, 124, 136. material must be furnished on credit of building, 124. material not used in building, 123. material placed on or near curtilage, 123. material for temporary use, 136. insurance, on woodwork deposited apart from building insured, 149. MATERIAL MAN, See Material. Mechanics' Lien. Sale. Stoppage in Transitu. MECHANICS' LIEN. generally, 106. defined, 107. legislation with reference to, 108. act June 4. 1901, 108. purpose of, 350. application of, 352. 268 INDEX. Numbers refer to sections. MECHANICS' LIEN (Continued.) waiver of right to file, 109-111, 307. steps necessary to bind others, 109, 307. subsequent withdrawal of waiver, no, 307. giving of credit; effect of, in, 307. release of lien; effect of, 112, 307. who may acquire, 113-116. contractor, 113, 114. sub-contractor, 113-115. partial contractor, 116. who may not acquire, 114, ii^i, 227. sub-contractor, 114, 115. architect, 114. laborer, 227, 314. lessee, power to impose, 117, 294. consent of owner, 117, 294. for what labor or material lien may be had, 116, 1 19-124. work must be material part of building, 116, 119. no lien for alteration less than $100, 119. structure and alterations, distinguished, 120. removal or demolition of structure, 121. unfinished building, 122. when ratification may be presumed, 296. when building is destroyed, 122, 311. for material not used in building, 123, 295. cannot be had for material for scaffolding, 136. property subject to lien, 125-128, 294. property, defined, 125, 293. curtilage, defined, 128, 295. removal of property; effect of, 126, 319. public property, 127, 294, 298. remedy in lieu of lien, 298. property of lunatics, 127, 294. steps necessary to secure, 129-142. notice of intention to file claim, 131, 300. sub-contractor; new structure, 131, 300. alterations, 129, 294, 300. mode of making service, 132, 300. notice to owner of having filed claim, 138, 313. notice necessary when contract impairs right to file claim, 311. time within which claim must be filed, 134, 302. new structure, 134, 302. alterations, leasehold, etc., 134, 302. INDEX. 269 Numbers refer to sections. MECHANICS' LIEN (Continued.) steps necessary to secure consent of owner to tenant to improve property leased, 130. claim, 136, 299, 301, 303, 304. contents, 136, 303. term, dwelling, does not include stable, 136. description necessary, 136. affidavit, substance of, 303. when single claim will be allowed, 304. apportioned claim will not be allowed, 304. rule upon party to file claim, 299. when owner may withhold payment from contractor, 299, 301. procedure incident to recovery, scire facias, 324. form of, 324. amicable, 324. advertisement, 325. when scire facias must issue, 302. when verdict must be recovered, 302. when final judgment must be entered, 302. when scire facias must be revived, 302. form, 332. service, 333. practice and procedure, 334. petition by claimant to have property valued, 306. petition averring incorrect date, 315. intervention of party having interest in property, 316. defendant may present petition setting forth defence, 317. effect of filing affidavit by claimant in bringing suit, 320. form of writ of summons, 321. alias and pluries writs, 322. notice to claimant to issue scire facias, 323. compulsory nonsuit, 323. when no affidavit of defence is filed, 326. when judgment is obtained against contractor, 327. when to be marked for use of owner, 327. court may open judgment, 327. defences, 328. minor defects, 328. compulsory nonsuit, 329. petition to have land exonerated, 330. appointment of sequestrator, 331. delivery of possession, 331. claim, scire facias, etc., how to be entered, 335. 270 INDEX. Numbers refer to sections. MECHANICS' LIEN (Continued.) procedure incident to recovery, levari facias, 336. title acquired, 337. when property is in more than one county, 337. substitution of defendant, 316. effect of judgment against corporations, 338. when leasehold subject to claim is sold, 339. stay of execution, 340. effect of removal by fire, 341. subrogation, 341. security, when required, may be approved by prothonotary, 342. amendment of papers, 343. when rules are returnable, 344. service of notices, petitions and rules, 345. satisfaction of record, 346. distribution, 347, 348. appeals, 351. sub-contractor bound by terms of contract filed, 140. structure and alterations, distinguished, 120. several separate contracts, 135. giving of credit postpones proceedings on lien, 141, 307. insurance; contractor's right to, 142, 341. effect of lien, 143-146, 305. date when lien takes effect, 143, 305. petition averring incorrect date, 315. priority and force of lien, 144, 305. effect of prior estate, charge or lien, 305. proceedings to have property valued, 306. assignment of right to file, 118, 318. assignment of lien filed, 118, 318. judgment, 14s, 302. force of, 14s, 302. revival, 145, 302. execution, stay of, 146, 340. NEGLECT, of employee; ground for discharge, 217. NEGLIGENCE, See Building Contract. of owner, 82, 87. to notify contractor of latent defects in ground, etc., 87. INDEX. 271 Numbers refer to sections. NEGLIGENCE— (Continued.) of owner, failure to give building lines, 82. failure to construct siding, 82. of builder, whether owner or contractor, 273, 274. injury to foundations of adjoining property, 273. in using public street, failure to provide watchman, 274. failure to provide sufficient light, 274. of employer, 231-238. employing incompetent help, 231. failure to protect all floors above the third, 232. failure to provide proper machinery, 233. failure to keep machinery in repair, 233. failure to notify servant of latent danger or defect, 235, 236. infant, 237. failure to provide safe place, 232. unsafe scaffold, 232. NON-PERFORMANCE, See Building Contract. Recovery for Work Done. interference of owner, 78. inclement weather, 85. defects in plans or specifications, 80. act of God; performance, 83. delay, 84. fire, 86. NOTICE. See Building Contract. Master and Servant. Mechanics' Lien. OCCUPANCY, of building; not conclusive evidence of acceptance, 76. OFFER, See Sale. ORAL AGREEMENT, See Contract. 272 INDEX. Numbers refer to sections. OWNER, See Building Contract. Master and Servant. Mechanics' Lien. Negligence. defined, S, 293. agent of, 34-45- authority, generally, 36, ZT- conduct of owner, 35. may invest agent with any degree of authority, 36. notice to agent binds owner, 45. when owner is bound by agent's acts, 37, 39, 40. as to delay in work, 38. as to work of sub-contractors, 39. delay, contractor not liable for when due to owner's act, 53. when work must be done to the satisfaction of, 63. refusal to accent from mere caprice, 64. result of interference by owner, 74. failure of, to employ competent contractor, 254. to furnish material as agreed, 75. to build foundations, 82. to give building lines, 82. duty and liability to build siding, 82. duty, 87, 254. to employ competent contractor, 254. to provide safe place, 87. to notify contractor of latent dangers in place, 87. liability, 253-258, 265, 266, 273, 274. when party employed is not an independent contractor, 253. when work is unlawful, 255. when work is especially hazardous, 255. for interference with rights of others, 256-258, 273, 274. subjacent support, 273. lateral support, 274. encroachment beyond building lines, 256-258. cornices, bay-windows, etc., 256, 258. eflfect of adverse possession, 257. diverting eaves drip to property of others, 258. for injury to the public, 256, 257, 274. when projecting cornices, etc., are unsafe, 256. precipitation of snow from roof, 256. improper use of public streets, 274. INDEX. 273 Numbers refer to sections. OWNER— (Continued.) liability, adverse possession does not operate against munici- pality, 257. for infringement of state and municipal laws and ordinances, 265, 266. fire escapes, 266. cities of first and second class, 265. thickness of walls, 265. yard space, 265. PARADING, as a method of boycotting, 251. PAROL EVIDENCE, See COTSTTRACT. PART PERFORMANCE, See Performance. Recovery for Work Done. PARTIES, care necessary in naming, 21. as to corporations, 22. PARTNERS, eflfect of death of one of several employing partners, 215. PARTY OR PARTITION FENCES, right of adjoining owenr to build, 263. use of adjoining land is Hotadverse,263. cost must be borne equally, 263. duties of township or borough auditors, 263. when occupant may not be charged with proportionate cost, 263. occupant may build on his own land exclusively, 263. rights of the parties when fence is destroyed by accident, 263. in Philadelphia, height, materials, etc., 264. right of builder when adjoining owner fails to pay, 264. 18 274 INDEX. Numbers refer to sections. PARTY WALL, in general, 259-262. right to, may arise through agreement, 259- cannot arise through oral agreement, 259. may arise by implication, 259. adjoining properties, at time of building, must have been owned by different persons, 259. exception, 259. must be of mutual benefit to adjoining owners, 261. conveyance of adjoining houses with common dividing wall, 259. where by mistake, wall encroaches beneath surface, 259. regulation of, 260-262. where wall is used without physical attachment, 260. when height may be increased, 260. when portion of wall may be removed, 260. when adjoining owner will not be liable for removing, 260. right to use does not lapse by non-user, 260. in cities of the first class: cities of the first and second class defined, 261. Philadelphia, act of 1 721 providing for building, penalty, 261. when right to compensation arises, 261. right to compensation is not a lien, 261. must be of mutual benefit, 261. when wall is supported by an arch, 261. character of wall to be determined by foundation, 261. when walls are alleged to be defective or insufficient, 261. proportionate expense of repair or new wall, 261. when old walls not of required thickness may stand, 261. must be built solidly, 261. closeness of joists in party walls, 261. right to compensation passes to purchaser, 261. in cities of the second class: Pittsburg, 262. proceedings when persons desire to build, 262. compensation, 262. when wall becomes impaired, 262. when adjoining owner desires to remove or replace, 262. remedy for unlawful use by adjoining owner, 262. must be solidly built, 262. right to compensation passes to purchaser, 262. INDEX. 275 Numbers refer to sections. PAYMENT, See Recovery for Work Done. Wages. building contracts, 24, 104. contract should name party to whom should be made, 24. time for making, 24. part payment on entire contract, merely advances, 104. sale, 195-199- tender, requisites of, 195. refusal to accept, 195. authority of vendor's agent to receive payment in settlement of account, 196. promissory note, 197. check, 197. failure to present at bank within reasonable time, 197. receipt, 198. use of the mail, 199. master and servant: effect of specified times for payment of wages, 212. wages. See Wages. PENALTY, liquidated damages, distinguished, 56- when penalty may be recovered for delay, 56. PERFORMANCE, See Building Contract. Part Performance. Recovery for Work Done. specific performance; cannot be had, 62. "to the satisfaction of owner," 63. substantial performance sufficient, 71. "as good as the first one," 72. immaterial defects; allowance for, 73, 328. when excused, 53, 79, 82, 87, 96. interference of owner, 53, 74. deviation from contract, with owner's knowledge, 79. when owner dispenses with performance, 96. when owner fails to do as agreed, 82. furnish material, 82. build siding, 82. 276 INDKX. Numbers refer to sections. PERFORMANCE— (Continued.) when owner fails to build foundations, 82. give building lines, 82. notify contractor of latent defects in ground, etc., 87. certificate of approval, 36, 64, 103. when withheld by mere caprice of owner, 64. when given by agent in collusion with contractor, 36. work must be done to the satisfaction of person designated, 103. "PICKETING," See Strike. injunction against, 251. PLANS, See Building Contract. Specifications. relation to specifications, 33. submission of plans for extras to owner, 28, 29, 31. contractor may not deviate from, 68. when delay is due to defects in, 80. when contractor must cease work on discovering defects in, 40. PLASTER, acceptance by agent of kind substituted, 39. POSSESSION, See Adverse Possession. Sale. PRELIMINARY NEGOTIATIONS, See Building Contract. PRINCIPAL, See Independent Contractor. Master and Servant. Owner. PROGRESS CERTIFICATES, See Building Contract. owner may waive, 42. INDEX. 277 Numbers refer to sections. PROJECTION, See Encroachment. Adverse Possession. PROMISSORY NOTE, not absolute payment, 197. effect of accepting upon right to file lien, 141. effect of accepting upon right of stoppage in transitu, 193. PROPERTY, See Mechanics' Lien. defined, under act June 4, 1901, 293. should be clearly defined in building contract, 23. subject to lien, under act June 4, 1901, 294. PROPOSALS, a mere bid in answer to advertisement does not constitute con- tract, 32. owner is not bound to award contract to lowest bidder, 32. statement of "you are the lucky man" is not equivalent to award- ing contract, 32. bidder may not show custom to award to lowest bidder, 32. PUBLIC, See Building Contract. Encroachment. PUBLIC PROPERTY, See Mechanics' Lien. PUBLIC STREET, See Street. QUANTUM MERUIT, See Master and Servant. RAILROAD, See Common Carrier. 278 INDEX. Numbers refer to sections. RATIFICATION, of sale by infant, 163. RECEIPT, for money paid; effect of, 198. receipt and acceptance, distinguished, 186. RECOVERY FOR INJURIES, See Damages. Negligence. RECOVERY FOR WORK DONE, under building contract, j,T, 57, 58, 68, 92-99, 101-103. entire and severable contract, distinguished, 92, 93. severable contract, 92. , entire contract, 93. part performance, 94. interference of owner, 95. when owner dispenses with performance, 96. substantial performance sufficient, 97. immaterial defects; allowance for, T% 328. no recovery unless work is done to the satisfaction of person designated in contract, 98, 103. rescission by owner for failure to commence or for defective performance, 57. contractor's subsequent attempt to complete, 58. certificate of approval, 98-101. when a prerequisite to recovery, 98. when withheld from caprice, 99. when agent withholds after expressing satisfaction, 98. agent's decision binding upon both parties, ZT, 102. when contractor departs from plans and specifications, 68. when recovery may be had notwithstanding work is value- less, 66. must be suitable for purposes contemplated, 70. part payments to be considered merely as advances, 104. delivery of receipt may be made a prerequisite to payment, 349. under contract of hire, ^ See Wages. REDUCTION OF WAGES, presumption arising from acquiescence in retention of wages, 226. INDEX. 279 Numbers refer to sections. RELEASE, See Bondsmen. Mechanics' Lien. REMEDY, See Deceit. Master and Servant. Recovery for Injuries. Recovery for Work Done. Wages. REMOVAL OF PROPERTY, lien for removal or demolition, 121. eflfect of removal to another location, upon right to lien. 126. RESCISSION, See Building Contract. Sale. SALE, defined, 161. who may make, 162-165. infants, 163. lunatics, 164. intoxication, 165. offer and acceptance, 167-174. must be unconditional, 167. acceptance must be made in reasonable time, 168. communication of, 169, 170. sending of goods in answer to order, 170. sending smaller quantity than ordered, 170. authority of agent, 171, 172. mail, telegraph and telephone; use of, 172. when offer may be withdrawn, 174. when contract becomes binding, 173. consideration, 175, 176. when none is mentioned, 175. when to be fixed by third parties, 176. 280 INDEX. Numbers refer to sections. SALE. — (Continued.) when title passes, 177-186. intention of parties, 177. acceptance of ofifer, 168-170. transfer of title and possession not synonymous, 178. cash transaction, 179. delivery to common carrier, 180-182. bill of lading, 181. bill of exchange, 182. when inspection, weighing, etc., is necessary, 183. delivery, 180, 185, 186. when no place is specified, 185. receipt and acceptance distinguished, 186. to common carrier, 180. Sunday transactions, 166. sale by sample, 186. right of stoppage in transitu, 187-194. defined, 187. conditions necessary, 188. who may exercise, 189. vendee may intercept goods, 191. effect of re-shipment to original destination, 191. what constitutes termination of transitus, 190. arrival at destination, 190. delivery to vendee's agent at carrier's warehouse, 190. insolvency, 192. effect of giving credit to vendee, 193. effect, upon sale, of exercising right, 194. does not work rescission, 194. payment, 195-199. tender, 193. requisites of, 195. effect of refusal of seller to accept, 195. when made to salesman, 196. promissory note, 197. check, 197. receipt, 198. use of the mail, 199. deceit. See Deceit. SAMPLE, See Sale. INDEX. 281 Numbers refer to sections. SERVICE, mode of making under act June 4, 1901, 132. SET-OFF, when owner cannot make claim for substitution of inferior ma- terial, 39. SEVERABLE CONTRACT, See Recovery for Work Done. SICKNESS, See Illness. SIDING, failure of owner to build as agreed, 82. SILENCE, See Building Contract. Deceit SCAFFOLD, negligence of master in constructing, 232. failure of master to furnish suitable lumber for, 232. negligence of foreman in selecting defective lumber for, 232. SNOW, accumulation of, on roof, 256. SPECIFICATIONS, See Building Contract. defined, 33. conflict with agreement, 33. contractor may not improve upon, 68. delay, 80, 81. due to defects in specifications, 80. due to alterations in, 81. STABLE, the word "dwelling" in a claim for lien does not include stable, 136. 282 INDEX. Numbers refer to sections. STANDARD INSURANCE POLICY, See Insurance. STATUTE OF FRAUDS, See Bondsmen. STAY OF EXECUTION, no stay of execution on judgment for wages, 230. STEP-FATHER, when entitled to services of step-child, 220. STOPPAGE IN TRANSITU, RIGHT OF, See Sale. STORM INSURANCE, See Insurance. STREET, See Encroachment. use of for building material, etc., 274. duty to properly light, 274. duty to provide watchman when necessary, 274. STRIKE, early English cases, 249. early American cases, 249. late American legislation, 250. act of May 8, 1869, as to right to organize, 250. act of June 14, 1872, as to right to persuade others to refuse to work, 250. act of April 20, 1876, as to what persuasion may be used to induce others to quit work, .250. boycott, 251. picketing, 251. legislation simply relieves from punishment for criminal con- spiracy, 251. criminal conspiracy, 251. injunction, 251. INDEX. 283 Numbers refer to sections. STRUCTURE, alterations, distinguished, 120. SUB-CONTRACTOR, See Building Contract. Contractor. Mechanics' Lien. defined, 7, 293. bound by terms of agreement filed, 140, 310. duty of contractor to notify sub-contractor of agreement af- fecting right to file lien, 311. bound by decision of owner's agent, 39. bound by provisions of specifications, 69. SUNDAY, effect of sales made on, 166. SUPPORT, subjacent, defined, 273. for the ground alone, 273. for structures built upon ground, 273. mining operations, 273. lateral, defined, 273. for the ground alone. 273. for structures built upon the ground, 273. foundations, 273. duty of owner to consider probable use of adjoining ground, 273. care necessary in building, 273. care necessary in digging close to foundations on property of others, 273. liability for injury to property of others, 273. SURETY, See Bondsmen. TECHNICAL WORDS. See Contract. 284 INDEX. Numbers refer to sections, TELEGRAPH, See Payment. Sale. TELEPHONE. See Sale. TIME, See Building Contract. Delay. Mechanics' Lien. TITLE. See Sale. TRUST, RELATION OF, See Sale. UNFINISHED BUILDING, See Mechanics' Lien. VENDEE, See Sale. VENDOR, See Sale. VICE-PRINCIPAL, See Building Contract. defined, 239. right to hire, 240. personal duties, 241. inspection of machinery, etc., 242. liability of master for injuries resulting from acts of, 247. WAGES, See Master and Servant. eflfect of specified time for payment of wages, upon hiring, 212. indp:x. 285 Numbers refer to sections. WAGES— (Continued.) when demandable, 226. to whom payable, 226. infant, 226. reduction; presumption, 226. attachment of, may not be had, 226. exemption, 226. destruction of building upon which servant is employed, when hiring is for a specified time, 226. no lien for, 227. provision of act of June 4, 1901, 227. no exemption in suits for, 229. no stay of execution on judgments for, 230. in case of discharge, 223-225. without cause, 224. employee must seek other employment, 225. need not accept inferior work, 225. need not accept work at great distance, 225. wages entitled to for other work must be deducted, 225. whether received or not, 225. seeking other employment, not acquiescence, 225. accepting other employment with same master, not acquies- cence, 225. discharge, without cause, 224. remedy to recover, 224. for cause, 223. back-pay, 223. abandonment, 221. forfeiture for failure to give notice required, 222. WAIVER, See Building Contract. Mechanics' Lien. WAREHOUSE, See Sale. WEATHER, See Building Contract. 286 INDEX. Numbers refer to sections. WEIGHING, See Sale. "WITHIN," meaning of within certain time, in building contract, 47. meaning of within certain figures, in building contract, 105. WRITTEN AGREEMENT, f See Contract.