Collum v. Pennsylvania Paint & Ochre Co. , 185 Pa. 411 ( 1898 )

Opinion by

Mb. Justice Gbeen,

The learned court below made the following finding, viz: “ The court finds as a matter of fact that the claim upon which the Wentz lien is based is for materials and work furnished and done in making additions to, and alterations of and in, the building in question, and not in the original construction.” This finding brings the case within the decision of this Court in Thoma & Blandy’s Est., 76 Pa. 30. The facts in the two cases are very similar in character, so much so that they require similar judicial treatment. In the Thoma case the facts are tiras stated in the syllabus: “A furnace on a new plan was built, its air and water pipes were laid, but the connections not made; the furnace was put into operation, worked for a time and then blown out on account of a defect in its plan and construction. Money was then raised on a mortgage by which all the mechanics’ claims then due, but one, were paid. Other work was done altering the construction, building new kilns, etc. Held that under the circumstances of the case the build- . ing was finished at the date of the mortgage, and the liens for work after that time were postponed to the mortgage.” It is therefore very obvious that if the finding of the court below in the present case is correct the decision in the Thoma case controls its determination.

After a very careful examination oE the testimony on the present record, we are thoroughly convinced that the finding of the court below on this important question is fully sustained by the evidence. It is not necessary to repeat the testimony here in any great detail. The fund for distribution was the proceeds of one of five manufacturing plants belonging to the Pennsylvania Paint and Ochre Co., four of which were located in Berks county and the remaining one, being the one now in question, was erected in the immediate vicinity of Allentown in the county of Lehigh, and was known as the Allentown Mill. This mill was built on leased ground near a barbed wire mill, and its purpose was to evolve Venetian red paint out of the refuse acid which was discharged from the wire mill. The mill was built by William B. Shaffer, -who was president of the Paint and Ochre Co. and was turned over by him to the company when completed,’ in pursuance of a contract between him and the company. This occurred in June, 1893. The mill was put in operation during that month by the company, and some goods were shipped as early as July 8,1893. The formal transfer to the company was made on Juty 31, 1893, and on the next day the mortgage to secure the payment of $35,000 of bonds by the company was made and duly recorded on August 10, 1893. The auditor finds that the validity of this mortgage was not impeached and upon its entry of record it became a lien upon the property in question. The plan of the mill contemplated the production of Venetian red by using the acid at the wire mill under a process never before used, without the use of a dryer before putting it in the roaster. It very soon appeared however that this could not be done, and then the plan of the mill was changed by the company deciding to erect a dryer with other appliances so as to produce brown and other colors of paint. In pursuance of this change in the plans, an additional building was put up on the north side of the mill, and the court below finds that the Wentz lien, the one in controversy, was filed for work and materials furnished by Wentz in making these additions and alterations, and that all this was done after the completion of the original building. Wentz had also furnished work and materials for the original building, and it was contended that the whole of his claim must be regarded as continuous, and therefore to be treated as a unit ending only with the last items of his bill. The auditor took that view of the claim but the court below did not sustain it, and held that the work and materials furnished after the completion of the building must be regarded as having been furnished for additions and alterations, and on this subject we think the evidence supports the finding of the court and not of the auditor.

In reference to this matter the learned court below, after reviewing the testimony of the various witnesses, says in the opinion: “It is plain that after the mill had been started it was found that it was a failure, and that those controlling it set about changing it. That change was the providing of appliances to dry the manufactured material and to make paints other than Venetian red along with that kind, and to increase the capacity of the establishment. To carry out this intention another building was necessary, and nine grinding machines and connections between the new and what was there before had to be made. These new appliances were additions and alterations, visibly so, and to make them, Wentz contracted and did what was done by him in October, 1898, and after that.” We are very clear that this is the true interpretation of the testimony and, therefore, we sustain the findings of the court on this subject.

Some question is raised in the argument for the appellant as to whether the Act of May 18, 1887, P. L. 118, amending the act of 1836, repeals the local Act of May 26,1871, P. L. 1241, relating to liens on machinery on leased estates in the counties of Lehigh and Northampton. It is only necessary to say that the act of 1887 is manifestly intended to apply to all liens for repairs, alterations or additions in all parts of the state, and therefore supplies all previous legislation on that subject. As there was no pretense that the requirements of this act were complied with in this case, it has no application. The assignments of error are all dismissed.

The decree of the court below is affirmed and the appeal is dismissed at the cost of the appellant.