Summary
Appeal, No. 600, Jau. T., 1896, by-defendants, from judgment of C. P. Delaware Co,, June T., 1893, No. 87, overruling exceptions to referee’s report.
Exceptions to referee’s report.
The case was referred to W. R. Bliss, Esq., as referee, wbo reported the facts to be as follows:
On September 22, 1891, the city of Chester adopted the following ordinance:
“ Ordinance for the grading, curbing and paving of both sides of Eighth street, from Barclay street-to Concord avenue.
“ Section 1. The select and common council of the city of Chester do ordain, That the land owners on both sides of Eighth street, from Barclay street to Concord avenue, be and they are hereby directed to grade, curb and pave the sidewalks in front of their respective properties within thirty days after the first publication of this ordinance, in accordance with the lines and grades upon the official plan of the said city to be given by the city engineer, and upon failure of said land owners to hare said work done within the time specified, the commissioner of highways is- authorized and instructed to have the same done and collect the costs thereof by lien or suit as provided by law and ordinance.
“ Section 2. The said paving shall be the full width 'of the sidewalk and the material used shall be the best quality of paving bricks, and the curb stones shall be such as are required by the fifth section of the ordinance of February 10, 1891,” etc.
This ordinance was advertised in the newspapers designated for the advertising of ordinances during the year 1891, for the time required by law. William P. Thomson, who was the commissioner of highways at that time, gave to Mrs. Eyre, one of the defendants, who was the proper person to receive such notice, a partly printed and partly written notice which was in the following form:
“ Chester, Pa., November 16th, 1891.
“Sir: You are hereby notified and required to grade, curb and pave the sidewalk in front of your lands on Eighth street on both sides from Barclay street to Concord avenue in compliance with the ordinance of councils, approved 22d day of September, 1891, within ten days of the receipt of this notice, or otherwise the work will be done by this department and the costs thereof collected from you by lien or suit as provided by law.
(Signed) “ William P. Thomson.
“ To Mrs. J. P. Eyre.”
This was the usual form of notice to property owners and was served more than thirty days after the first publication of the ordinance. The defendants did not comply with the requirements of the ordinance or of this notice and, on April 16, 1892, Mr. Thomson directed Michael Ross, the use plaintiff, to do the work, giving him the following written note :
“ Oeeice oe Wm. P. Thompson, Comm’r oe Highways, )
“ City Hall, Chester, Pa., April 16,1892. j
“ Mr. Michael Ross : You are hereby notified and required to grade, curb and pave the sidewalk in front of the lands of Mrs. J. P. Eyre on both sides of Eighth street from Barclay to Concord avenue, in compliance with an ordinance of councils approved the 22d day of September, 1891.
(Signed) “William P. Thomson.
“ Commissioner of Highways.”
Mr. Ross held a contract with the city for the year 1892, to do all the work of this character that might be required, at prices which were fixed by competitive bidding. Some time in the autumn of 1892 Mr. Ross, acting under the authority of the above letter from Mr. Thomson, set the curb stones, and graded and paved the sidewalk on the south side of Eighth street between Barclay street and Concord avenue, which is the work for which the lien now in suit was filed. There is no dispute as to the character of the work done, the kind or quality of materials used, or the prices charged. Before beginning the work Mr. Ross had the city engineer set the curb lines for him, and in the books in the engineer’s office the charge for that service is entered under date of October 1, 1892. After the completion of the work Mr. Ross measured it and handed a statement of it to J. Howard Cochran, a real estate agent of Chester, who kept his books for him. This statement with the prices charged, is entered in the books under date of October 20, 1892, and from it a bill was made out, dated October 21, 1892, and sent to Mrs. Eyre. The amount claimed in that bill was $869.81. The bill was not paid, and for the purpose of preparing a lien the city engineer was called upon to make an official measurement of the work, which he did, and from which he made out and gave to Mr. Ross the following bill against Mrs. Eyre:
“Chester, Pa., Dec. 15,1892.
“Mrs. J. P. Eyre,
“To Michael Ross, Contractor, Dr.
On the south side of Eighth street, between Pulton and Barclay streets, viz:
Curbing, 474 feet, at .73, .... $346.02.
Re-curbing,
Paving, 604.39 sq. yds., at .75, . . . 453.29.
Re-paving,
Grading, 256.94 cubic yds., at .16, . . . 41.11.
Surveyor’s Charges,..... 10.88.
$851.30.
“ Measured by E. H. Roberts, City Surveyor.”
At the bottom of the printed form on which this bill was rendered were blanks for the approval of the bill by the commissioner of highways and the street committee of councils. These blanks were not signed. The defendants refused to pay tins bill, whereupon the city solicitor prepared the lien upon which this action is founded, and filed it on April 4, 1893, in the following form:
“ City of Chester to use of Michael ' * Ross, Contractor, vs. “ Martha S. Eyre, Sallie P. Eyre, and Estate of J. P. Eyre, Jr., owners or reputed owners. > J
Municipal Lien.
“ The city of Chester files this claim, to the use of Michael Ross, contractor, against all that certain lot or piece of ground, with the buildings and improvements thereon erected, situate on the south side of Eighth street, in the city of Chester, aforesaid, and bounded on the north by the said Eighth street, on the south by Seventh street, on the east by Barclay street, and on the west by Fulton street, and against Martha S. Eyre, Sallie P. Eyre and estate of J. P. Eyre, Jr., owners or reputed owners thereof, for the sum of eight hundred and ninety-three dollars and eighty-six cents, being the cost of work done and materials furnished, together with a five per cent, penalty, for and about the paving and curbing of the sidewalks on Eighth street, in front of said lot of ground as follows :
Curbing, 474 feet, at .73, $346.02.
Paving, 604.39 sq. yds., at .76, 453.29.
Grading, 256.94 cu. yds., at .16, 41.11.
Surveyor’s Charges, 10.88.
Penalty of five per. cent. 42.56.
$893.86.
“ The work was done and materials furnished in pursuance of law and the ordinances of the said city, the said owners or reputed owners having neglected or refused to do the same after due and legal notice and was completed within six months last past and duly assessed against said owners or reputed owners and said lot of ground.
“Witness the hand of the city solicitor of the city of Chester aforesaid.
(Signed) “ Orlando Harvey.
“ City Solicitor.”
Prior to September 22,1891, the Chester city councils passed two ordinances upon the subject of sidewalks, which are still in force. The first of these, approved January 6, 1890, and published on page 415 of the printed ordinance book, is as follows: “ Ordinance providing for the collection of the costs of paving or repairing sidewalks from the property owners:
“Section 1. That from and after the passage of this ordinance it shall be the duty of any and all contractors who shall have hereafter paved or repaired any sidewalks in said city, under the instructions or directions of the proper committee of said council, to collect the cost of said work from the owner or owners of real estate abutting upon said sidewalk. And in case of the neglect or refusal of such owner or owners to pay for said work, then the said contractor or contractors shall be entitled to file a hen therefor and to prosecute the same in the name of the city to the use of said contractor or contractors, in the same manner as hens for such work are now by law recoverable by the said city.”
The other of these ordinances was approved February 10, 1891, and is printed in the ordinance book at page 456. Sections 2 and 3, are as follows :
“ Ordinance regulating the width of sidewalks, the curbing, paving, repaving and repairing thereof, and prescribing penalties for violations of its provisions :
“ Sec. 2. That whenever the councils of the said city shall, by resolution or ordinance, direct the sidewalks or footways of any such street, lane or alley to be curbed or paved or repaved, it shah be the duty of the owner or owners of the lands abutting thereon and they are hereby required to cause said sidewalks or footways to be curbed and paved or repaved, the full width thereof, with such material and in the manner in said resolution or ordinance set out; and if any such owner or owners shall neglect or refuse to curb and pave or repave the said sidewalks or footways within thirty days after the publication first made of the resolution or ordinance requiring the same to be done, it shall be the duty of the commissioner of highways to cause the same to be done, and the cost and expense therefor shall be collected from said owner or owners by lien or suit, according to law.
“ Sec. 3. That whenever any of the sidewalks or footways of the said city, or any part thereof, shall become out of repair, and need recurbing or resetting of curb or repaving, the commissioner of highways, by authority of the sidewalk committee, shall notify the owner or owners of real estate in front of whose respective properties said repairs are needed, to make said repairs forthwith, and if said owner or owners shall neglect or refuse to make said repairs within ten days after receiving such notice, it shall be the duty of the commissioner of highways to cause said work to be done, and the cost and expense thereof shall be collected from said owner or owners by lien or suit,. according to law. Provided, That said ten days’ notice shall be adjudged sufficient if left upon the premises with an adult, or in case of unimproved lands, if posted on the premises, or left with the agent or attorney of the owner or owners.”
During the several hearings before the referee the attorney for the defendants offered to prove that while the ordinance of September 22, 1891, was pending in council, he tried to have it amended so as to exclude from its provisions the premises covered by the lien above set forth; and that failing in that, after the ordinance had passed, he entered into negotiations with the council’s committee on sidewalks, the result of which was an assurance given to him by the chairman of that committee and some of the members that the work in question should not be required until after notice should be given to him by the committee ; that no such notice was given by the committee either to him or to the defendants, and that it had been the custom in Chester for work of this kind to be done only after the sidewalk committee had notified the commissioner of highways to proceed. This testimony the referee excluded as irrelevant, for reasons which will be set forth hereafter. The exclusion of this testimony left but one question of fact to be decided, viz : Whether the. lien was filed within six months after the completion of the work. While the testimony upon this point is somewhat conflicting and reveals an inexcusable carelessness on the part of the city in preserving the evidence in support of such claims, the referee is of opinion that the facts shown are sufficient to sustain the lien.
It appears that at the same time that this work was under way, Mr. Ross was doing a great deal of other sidewalk work in the same section of the city, part of it on this same street, and all of it within a few squares of the work. He testified that he could not give the exact date when any of this work was done, but that the work over which this suit arises was the last that he did. All the brick used in these several jobs was bought from Daniel Robinson, a brick maker, whose boobs show entries of charges against Mr. Ross for a large quantity of brick delivered in various places in that section of the city, the first of which under date of August 2d and the last October 20,1892. The entries of brick for delivery at Eighth and Fulton streets begin on September 27 and end on October 20. These are the only charges for brick delivered at the spot where this work was done; but paving was done at the same time on Fulton street, between Seventh and Eighth streets, and there are a large number of charges before October 1 for brick delivered at Seventh and Fulton. The curbstones used in this job were bought from George W. Lewis, whose books show that the last charge for curbstones was made on October 1. He testified that these stones were actually used in the work, as he saw them in place after the job was finished and could easily recognize them. None of the witnesses could say from memory whether the brick or stones were actually delivered to the places entered in the books, but said that the place of delivery was entered according to the instructions given by Mr. Ross when he gave the order and that the actual delivery was made by the teamsters whom they employed. Mr. Ross says that he was from three to five weeks doing this job, including one week when he had the men off upon another piece of work; that he did not begin the work until after the curb stakes had been set by the city engineer, E. H. Roberts, and that his practice was to measure such work as this as soon as it was completed and give the statement to Mr. J. H. Cochran so that it could be entered at once in his boobs and a bill be made out. The books in the city engineer’s office show that the fee for driving the stakes was charged up on October 1, and the entry in Mr. Ross’s books of the measurement made by him of the completed work is under date of October 20. Mr. Roberts, the city engineer, has no recollection of the date of driving the stakes, but says that the rule was to make such entries immediately after the work was, done and usually on the same day. There is no reason to question Mr. Ross’s statement that this job was the last piece of work of the kind that he did in that section of the city in the autumn of 1892. If that be true, then the facts that the curb stakes were set on or before October 1, that the brick charged as delivered at Eighth and Fulton streets is entered under dates beginning with September 27 and ending October 20, that the last charge for curbstones is under date of October 1, and that the charge for the completed work was entered in Mr. Ross’s books on October 20, appear to the referee to be sufficient— until controverted by equally strong testimony — to establish the fact that the date of completion of the work was within six months prior to April 4, 1893, the date of filing the lien.
To controvert this testimony the defendants have produced Mrs. Eyre (now Mrs. Knowles) who says that in 1892, as now, she was living in Philadelphia; that she was in Europe while this work was being done; that she returned to Philadelphia on October 5, 1892, and on that day met her nephew, Edmund Pennell, with whom she had some conversation with reference to this work; that as the result of that conversation she came to Chester on October 8 and visited the premises, and that she found the work then finished, the pavement sanded and all the débris removed. She says she was in Chester twice during that month, but is certain that it was on the first visit that she made this examination. Edmund Pennell corroborates her testimony as to the date of his conversation with her and says that the information he gave her was communicated to him by his father, Charles D. Pennell. The latter says that he kept an eye on the work that was being done in front of his sister’s property during her absence in Europe, and that the work now in dispute was finished before her return.
It is singular that this defense was not set up at an earlier stage of this case, which has now been under way for several years, but the facts may not have been known to the counsel for the defendants and they are entitled to the full benefit of the evidence.
It is clear that if this work was in fact the last work done in that section of the city, it was not finished before October 4, because after that date there was almost daily deliveries of brick at Eighth and Fulton streets, up to the 20th, amounting to a total of 39,500 brick. If the direct testimony of Mr. Ross upon this point be set off against the direct testimony of Mrs. Eyre to the effect that she remembers seeing the completed work on October 8, the purely circumstantial evidence seems to the referee to give the weight of credibility very decidedly to the plaintiffs’ contention that the work was not completed before October 4. At the most, the direct testimony offered by the defendants goes back only to October 8.
The defendants attack this municipal lien for the following reasons : (1) Because it does not set out on the face the time when the work in question was completed, merely alleging that it was done within six months last past. (2) Because it was filed against an entire square of ground, each of the sides of which is liable to a similar lien for work that may be done in front of it. (3) Because the work was not done in the manner expressly provided by the ordinances of the city which are above set forth. (4) Because the lien includes a penalty in addition to the contract price of the work as fixed by the competitive bidding for the year 1891.
The referee overruled'the objections to the lien and reported in favor of the plaintiff for $1,025.81. Exceptions to the referee’s report were dismissed by the court and judgment entered for the plaintiff.
Errors assigned were in dismissing exceptions to referee’s report and entering judgment for plaintiff.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
