Yeager v. Mansel

Pee Cubiam,

The notes upon which this action was brought were given by the defendant to the payees for lumber they had sold him. He sets up as his only defense lack of title in them to the timber and an unkept promise or agreement by them that no action would be brought upon the notes until they had acquired title to it. He cut and removed all of it prior to March, 1909, and, after he had agreed to waive the statute of limitations in any action that might be brought against him on the notes, no steps were taken to collect them until November 7,1917, when this action was brought. More than eight years had elapsed from the time the defendant had cut and removed the timber, and any claim to it by any one was then barred by the statute of limitations. For this reason the learned court below correctly held the affidavit of defense to be unavailing. In Getty et al. v. The Pennsylvania Institu *329 tion for the Instruction of the Blind, 194 Pa. 571 , the building contract provided that the retained percentage should not be payable until all mechanics and material-men had, in writing, acknowledged that they had been fully paid by the contractors for all work done and materials furnished. After the completion of the building a final installment was due to the contractors, who in the meantime had made an assignment for the benefit of creditors. In holding that this sum could not be retained by the institution after the time for filing mechanics’ liens had expired, even if the subcontractors had not acknowledged that they had been fully paid, we said: “When, under the limitations of the mechanic’s lien law, defendant is beyond peril as to liens against its buildings and grounds, it owes a debt, in such amount as is yet unpaid of the contract price, personally to the prin-' cipal contractors, which it is bound to pay to the assignee to whom the assets have passed.”

Judgment affirmed.