Mercer Milling & Lumber Co. v. Kreaps , 18 Pa. Super. 1 ( 1901 )

Opinion by

Rice, P. J.,

The claimant followed strictly the language of the act of 1836 and set forth, in its claim, that it was “ for work done and materials furnished for and about the erection and construction and upon the credit of the building hereafter mentioned,” and after setting forth other essentials, including a description of the building, concluded with these words, “ and the said building was finished and completed on April 2,1889.” Where a claim does not use the statutory phrase to describe either class of merchanics’ liens, or any equivalent words to indicate whether it is for the erection of a new building or the alteration of an old one, a rule to strike off the lien must be made absolute: Wharton v. Real Estate Investment Co., 180 Pa. 168. But in the same case it was distinctly held, that a “ claim which shows by apt and sufficient words that it is for work or material furnished to a new building will indicate its class, although it does not use the statutory phrase; ” and, surely, if the statutory phrase, “ for and about the erection and construction of a building ” is used, there can be no doubt as to the class to which the lien belongs. Indeed the court said in the case cited that they have been uniformly understood to mean a new building.

The rule as to lumping charges does not justify the striking off of this lien. The items are given in the bill of particulars with minuteness, the prices of each and the dates of most of them are given, and it is averred in the body of the claim that all were furnished between October 10,1898, and April 1,1899. Even if it be conceded that the lien is not good as to the items for which no specific dates are given in the bill of particulars (a point not necessary now to decide), it was unquestionably good as to the other items. It is not ground for striking off a claim as a whole that some of the items are insufficient: McCristal v. Cochran, 147 Pa. 225. See further Brown v. Kolb, 8 Pa. Superior Ct. 413.

The order is reversed, the lien is reinstated and the rule to show cause is discharged, the costs of this appeal to be paid by the appellee.