Harper v. Keely

' 1. A material man, who furnished materials to one contractor, jointly and indiscriminately for the use of two adjoining buildings, owned by.different persons, may divide his claim and file a separate lien against each building for the amount of materials furnished for it., 2. A verdict was rendered in favor of the plaintiff, subject to the opinion óf the court on a point reserved, on which the court afterwards entered judgment for the defendant. The Supreme Court, on error, reversed the judgment, and entered judgment for the plaintiff. It being afterwards suggested that a motion on behalf of the defendant for a new trial was undisposed of, and that the lower court had, notwithstanding its pendency, entered judgment for the defendant, the Supreme Court, on motion, permitted the reversal of the judgment to stand, but struck off the judgment entered for tho plaintiff, and a procedendo was awarded.

’ Error to the District Court for the city and county of Philadelphia. This was a scire facias upon a, claim filed for bricks furnished for the erection of a house in the city of Philadelphia, of which the following is a copy, to wit:— ■ “James Harper, of the city of Philadelphia, brick-maker, files a claim to be a lien for the sum of $363.50 against that certain three story brick house, with three story back buildings, situate in the said city, on the north side of Arch street, 90 feet west of Schuylkill Fifth street, the house and lot on which it is situate being 17 feet in front or breadth, and the lot 105 feet deep, of which house and lot William Keely is the owner, and in this case contractor for materials, to wit: for bricks furnished for and about the erection and construction of said house, the amount of said materials and the times when they were furnished, are particularly set forth in the bill annexed to this statement, and which is hereby made part thereof. This claim is filed against said house and lot. Bill annexed. Mr. William Keely, 1847. To James Harper, Dr. April 2, to 1500 bricks, 3, to 1500 12, to 3200 Intermediate deliveries almost daily to Oct. 20, to 1000 110,500 at $6.00 per M. $663.00 8,000 at $8.00 per M. 64.00 $727.00 One half chargeable to house described, ■ $363.50 The bricks in the above bill charged were furnished for two houses, one of them being the house described in the annexed and foregoing claim, one-half the bricks at the times they were furnished and delivered, being for.each house. The houses are adjoining each other, and as the bricks were furnished and delivered, they were charged in the- claimant’s book of entries as in the above bill. Thomas S. Smith, For J. Harper. D. C. Skerrett, Esq., Pro. D. C., Filed March 4, 1848. The pleas to the scire facias were a release, non assumpsit, payment with leave, &c. The replications were non est factum and non solvit, and issues were joined. On the 16th May, 1849, the .issues were tried before SharsWOOD, J. The defendant, John Eckstein, on his application, was permitted to appear and take defence as though originally a party to the record. Israel Vanhorn affirmed for plaintiff. Said he was a bricklayer, that he built the two houses for Keely; that the plaintiff furnished the bricks; did not recollect the quantity; he thought the number was rising 100,000. He understood one house was for Keely, and one for Mr. Fry. The house on which this claim is, is Keely’s. The buildings adjoined and went on together; Keely built both; the bricks came and were used promiscuously for both; Keely’s house had the most bricks; the price of bricks was then six dollars a thousand; for paving-bricks from eight to ten dollars a thousand. Josiah Evans affirmed for plaintiff. Said he counted the bricks. There were 60,834 bricks in the house exclusive of the heater and pavement. The plaintiff also gave in evidence a bill corresponding with the bill filed, with an acknowledgment of Keely, the defendant, that it was correct. The account was against William Keely; dates of delivery were stated, and the quantity of bricks stated at 109,000, at $6 per M.........$654.00 Also, 8000 at $8 per M......64.00 $727.00 The defendant gave in evidence a deed from Rebecca Chester to William Fry for the lot adjoining the one against which the claim was filed, and a deed from the same grantor to William Keely the defendant, for the lot in question in this case; a deed from William Keely to Thomas S. Cavender for the same premises; and a deed for the same from Cavender to Eckstein, the defendant. Also, a release from plaintiff to William Fry, of his lien on the adjoining house. The judge submitted the issues to the jury, reserving the question whether the plaintiff was entitled to a verdict upon the record and pleadings. The jury found a verdict for the plaintiff. The District Court, on the question reserved, gave judgment for the defendant. It was assigned for error, that the court erred in giving judgment on the point reserved for the defendant instead of the plaintiff.