
    January Term, 1882,
    No. 19½.
    January 17th, 1882.
    Schultz versus Asay et al.
    
    1. Where a mechanic’s claim is clearly shown in the bill of particulars to be an apportioned claim against houses separated by a public street, it cannot be properly treated as a single unapportioned claim, because the claim proper, as filed, is only against a single building, and is not therein apportioned.
    2. It is not competent to make an apportioned claim against buildings in different- blocks a good claim by filing such a claim separately against each building.
    3. The bill of particulars is an integral part of the claim, and must be read with it.
    4. A mechanic’s claim for $201.05 for lumber was filed against a single building and lot. The annexed bill of particulars was for lumber to the amount of $4825.08 furnished for twenty-four buildings, twelve on each side of the same street, and averred that the claimant claimed a lien for an equally apportioned pro rata or part of the said sum. It was shown by parol that the houses were all alike, and that the lumber was delivered to the twenty-four houses to be divided equally among them. Meld, That the claim was invalid.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas, No. 4, for Philadelphia County.
    
    
      Scire facias sur mechanic’s claim by Jackson S. Schultz, trading as the “ Wilcox Lumber Company,” against A. Merritt Asay, Jr., and Casper E. Asay, owners or reputed owners, and the said Casper E. Asay and William T. B. Roberts, contractors, and William N. Wheel en, who intervened as ¿erre tenant.
    
    The claim for the payment of the sum of $201.05 was filed against a certain two and one-half story building (describing it and the lot), and continued:
    “ The said debt of $201.05 being a debt contracted for lumber, hemlock joists, etc., sold and delivered at the request of the said Casper E. Asay and William T. B. Roberts by said Wilcox Lumber Company continuously to within six months last past, for and about the erection and construction of and on the credit of the said building, at the times and in the quantities in the annexed bill of particulars mentioned, to wit, from the second day of August, A.D. 1878, to the thirteenth day of January,. A.D. 1879, which said bill claimant prays may be taken and considered as part of the lien against said building, of which said A. Merritt Asay and Casper E. Asay then were and now are the owners or reputed owners, and the said Casper E. Asay and William T. B. Roberts, contractors. And the said Wilcox Lumber Company claims to have a lien on said building, and the curtilage appurtenant thereto, for the amount of said claim from the commencement of said buildings, according to the act of Assembly in such case made and provided.”
    The bill of particulars -was as follows:
    “ Casper E. Asay to Wilcox Lumber Company, Dr.
    “ For lumber ordered by W. T. B. Roberts for houses on north and south sides of Butler Street, west of Thirteenth Street, Philadelphia.”
    (Then followed items of goods sold and delivered from August 2d, 1878, to January 13th, 1879, inclusive, amounting to $4825.08.)
    And contained this averment:
    “ The materials mentioned in the aforegoing bill of particulars were furnished and delivered for and about the erection and construction, as well of the building mentioned in the annexed claim, as of twenty-three other buildings of the same or similar description; twelve of which are situated on the north side of said Butler Street west of Thirteenth Street, and the remaining twelve (of which the one within mentioned is one) of the twenty-four are situated on the south side of said Butler Street west- of Thirteenth Street, as is shown by a plan of the said buildings and lots which is hereto annexed and made part hereof, showing the location and size of the buildings and lots, and of all which the said A. Merritt Asay, Jr., and Casper E. Asay are the owners or reputed owners, and the said Casper E. Asay and W. T. B. Roberts the contractors. And against all of which buildings said claimants claim to have a lien for a proportionate of the said debt for which claims are filed in the same court with this claim to the present June term, 1879.
    “ The annexed claim is for an equally apportioned pro rata or part of the said sum of $4825.08.”
    Judgment for want of an appearance was entered against all of the defendants except Wheelen, terre tenant.
    
    Upon the trial in the Court below, the plaintiff’ offered in evidence the agreement under which the lumber was furnished, which provided, inter alia :
    
    “The same (the lumber) to be delivered by the lumber company to the said Asay, at Philadelphia, at any point on the line of the Pennsylvania Railroad, at such time and in such quantities, by the car-load, as said Asay or William T. B. Roberts, his agent and contractor, may order in writing; provided that he shall be entitled to receive the same under the terms of this contract, and that he shall indicate in his written orders for which houses in the different operations the lumber as ordered is intended.” ....
    “ And it is further agreed in case said Asay shall make default in any particular in the performance of his part of this contract, or shall suspend work on the said buildings, the said lumber company may, at their option, any time thereafter, demand in cash the whole amount due for lumber shipped, and in default of payment by said Asay, said lumber company may sue or institute such other proceedings for the recovery of the amount due, as aforesaid, as said lumber company may determine upon. Provided, however, and it is expressly understood, that nothing herein shall be so construed, taken or considered as to prejudice or interfere with the said lumber company’s right, under the law, to file mechanics’ claims for the said material against the said buildings, and maintain actions thereon for the lumber sold under this agreement, which rights said company hereby expressly reserves as a further security for the payment of the amount becoming due, until the same shall have been fully paid.”
    Witnesses for the plaintiff testified that the lumber was delivered for the twenty-four houses to be divided equally among them. It was to do the job. It was considered one job for twelve houses on the north side of Butler Street, and twelve on the south side. They were all alike, supposed to take exactly the same kind and exact amount of lumber for each house, and the lumber was delivered for these twenty-four houses, to be divided pro rata, each house alike.
    
      William T. B. Roberts, one of the defendants, testified under cross-examination:
    
      “ In making out the list I made out the list for one house, and when I gave it to Mr. Wemarth to send it to the lumber company I multiplied it by twenty-four, so that, as the houses were going on continuously, we could multiply it and divide it pro rata among the houses as they were going on.”
    lie also testified that it was part of the agreement that one twenty-fourth part of each order was to be ordered for each house; that at the time he applied for the lumber he endeavored to get an agreement that they should not have liens, and the company refused, and that the advancers saw the agreement.
    February 18th, 1881, the jury found a verdict for the plaintiff for $146.14, subject to the point reserved by the Court, “ Whether such a lien can, in point of law, be sustained at all; whether a man can file an apportioned lien against a single house under a contract to erect numerous buildings or different blocks of houses on different sides of the same street.”
    April 2d, 1881, the Court, Thayer, P. J., entered judgment for the defendant non obstante veredicto, on the point reserved, filing an opinion which, after stating the facts, continued as follows:
    “Upon the trial it appeared that under a contract between the plaintiff and Asay and Roberts, contractors, dated August 1st, 1878, a large quantity of lumber, amounting in value to $4825.08, was furnished for twenty-four houses, twelve of which were on the north side and twelve on the south side of Butler Street, one of the public streets of the city of Philadelphia. Twelve of the houses were therefoi’e in one block and twelve in a different block, the two blocks being separated by Butler Street. It was proved that the lumber was delivered to the contractor indiscriminately upon the credit of the twehty-four houses. No proof was given to show what proportion or amount of the lumber, if any, was actually used in the erection of the particular house sought to be charged by this claim, or that any of the lumber ordered went into this particular house. The plaintiff made out an apportioned claim against the twenty-four houses, and filed this claim as a single claim against each house. The Court reserved the point whether this claim, unsupported' by any other proof than that the lumber was delivered to the contractors upon the credit of all the houses in the different blocks, could be sustained. The question is whether, upon such a state of facts, the claim can be maintained as a valid and legal claim under the acts of Assembly and the construction which they have heretofore received.
    “ Upon the argument, it was contended by the plaintiff’s counsel that this is not an apportioned claim. It is true that if we look to the formal part of the claim alone as it was filed, rejecting altogether the bill of particulars which is annexed and made part of it, nothing is said there about an apportionment. But we are not at all at liberty to do that. The bill of particulars is an integral part of the claim, and must be read with it: Knabb’s Appeal, 10 Barr, 186'; Donahoo v. Scott, 2 Jones, 45 ; Calhoun v. Mahon, 2 Har., 56; Hill v. .McDowell, lb., 175; McClintock v. Bush, 13 Smith, 203.
    “ Indeed, it must be apparent that if the plaintiff were to stand upon the claim alone, rejecting the bill of particulars, it could not be maintained, for ‘ the amount of materials furnished and the time when they were furnished,’ nowhere appear with sufficient certainty, except in the bill of particulars. It is for that reason, doubtless, that the plaintiff in his claim prays that the bill of particulars may be taken and considered as part of his claim.
    “ Looking then at the bill of particulars as an essential and integral part of the claim filed, it distinctly appears that the lien claimed is for $4825.08, and is against twenty-four buildings, twelve of which are in one block and twelve in another. ‘ Against all of which buildings said claimants claim to have a lien for a proportionate part of the said debt.’ It is, therefore, perfectly p'ain that this is an apportioned claim, and not only an apportioned claim, but, so far as the bill of particulars is concerned, it is a joint apportioned claim, although if we regard the formal parts of the claim apart from and independently of the bill of particulars, it is on its face a single and unapportioned claim. But we are bound to read the bill of particulars as a part of the claim. As has been already said, if the plaintiff rejects the bill of particulars his claim is clearly invalid for uncertainty, inasmuch as it does not comply with the statutory requisites in setting out the ‘ times and quantities:’ Bussell v. Bell, 8 Wr., 54; Behrer v. Zeigler, 8 W. & S., 258 ; Lehman v. Thomas, 5 W. & S., 262 ; Witman v. Walker, 9 W. & S., 183.
    “ Is it competent then for the plaintiff to avoid the difficulty which clearly appears in his bill of particulars, that this is an apportioned claim against houses in different blocks, by saying that the claim proper as filed is only against a single building, and is not apportioned in the claim itself? In other words, if the claim itself is clearly shown in the bill of particulars to be an apportioned claim against houses separated by a public street, and which, therefore, by no latitude of construction whatever can be said to be ‘adjoining,’ can it be properly treated as a single unapportioned claim, because it would so appear if we rejected entirely the bill of particulars ? Is it competent to make an apportioned claim against buildings in different blocks a good claim by filing such a claim separately against each building? Are separate apportioned claims against houses in different blocks good, although joint apportioned claims against buildings so situated are bad ? If the law is so, then such claims may be filed against a multitude of buildings for which materials are supplied under one contract in various and remote localities, where the materials have been furnished indiscriminately upon the joint credit of all, and the only standard of charge against each is an apportionment between all made by the claimant himself.
    “So far as the right to apportion claims for materials among several houses depends upon statutory authority, it is clear that the acts of Assembly contemplate only ‘ houses and buildings adjoining each other’ as proper subjects of such apportionment, and the reason assigned for permitting the apportionment in the Act of 1831 is, that as to houses so situated ‘ it sometimes happens that it is impossible for the person who has provided materials to specify in his claim the particular house or building for which the several items of his demand were provided.’ Both the Act of 1836 and the Act of 1850, where they speak of the apportionment, clearly refer to the apportionment previously authorized; that is, to the apportionment provided for in the Act of 1831, and not to any new or different kinds of apportionment. The ease of Penuock v. Hoover, 5 R., 291, where the claims were made under the Act of 1806 and its supplement of 1808, was the case of claims filed against contiguous houses, and it was held that claims against such íouses might be filed against all the houses jointly, or they might be apportioned and separate claims filed against each. Pennock v. Hoover, as well as the subsequent eases of Dayis v. Earr. 1 Har., 167, and Harper v. Ileely, 5 H., 234, are authorities which decide that either joint or separate apportioned claims may be filed against adjoining houses. But there is no case which holds that either joint or separate apportioned claims can be filed against houses not adjoining in any sense, but which are separated by streets, and therefore situated in different blocks, or which decides that any right of fixing and charging the amount of a claim by the process of apportionment exists in the cases of houses so situated. The reason assigned by the act and by the cases for permitting a charge by apportionment does not exist in such a state of things, for, as was said in Chambers v. Yarnall, 3 Har., 268, it is as easy to distinguish between separate blocks as it is between separate houses in different streets. The words ‘several houses' and buildings adjoining each other’ have been construed to mean any number of buildings owned by the same person, provided they are all in progress and are all situated in the same block: Young v. Chambers, 3 Har., 267; Taylor v. Montgomery, 8 Har., 443; but in Young v. Chambers, and the subsequent case of Goepp v. Gartiser, 11 Casey, 130, followed in our own case of French v. Kaign, 3 W. N. C., 495, it was distinctly decided that a material-man cannot maintain a claim which rests upon an apportionment made between houses in different blocks, because such an apportionment is neither within the reason nor the letter of the acts of Assembly, nor within any previous decision. Those were cases of joint apportioned claims. 13ut the principle upon which they rest seems to us to control the present case, for, as we have already seen, the present case clearly appears by the bill of particulars to be in reality an apportioned claim against houses in different blocks, although it is ingeniously attempted to avoid the effect of that by filing a copy of this jointly apportioned claim against each house separately. There is no precedent and no authority for such a claim as this, and it would- be extremely impolitic and dangerous in practice to allow it, for if it can be done, then a contractor under a contract for the erection of a multitude of buildings in different parts of the city, no matter how remote they may be from each other and how different from each other in their dimensions and plans, may fasten upon each of the buildings a claim resting upon no certainty whatever, but depending entirely upon guesses as to the amount which should be charged to each of them, and all the proof necessary to support such a claim will be, as in the present case, proof that credit was equally given to all the houses when the contractor purchased the lumber.
    “ The cases relied upon in the able and ingenious argument of the plaintiff, Davis v. Farr; Harper v. Keely; Fitzpatrick v. Allen, 30 Smith, 294; Rush v. Bank, 2 W. N. C., 263; Armbrust v. Galloway, 2 W. N. C., 585, were all, without exception, cases of adjoining buildings, either actually adjoining, or constructively adjoining, in the sense that they were situated in the same block. All that was decided in Millett v. Allen, 3 W. N. 0., 374, was that separate apportioned claims may he filed when the materials have been indiscriminately furnished for several buildings. The case is but a confirmation of Davis v. Farr, Harper v. Kelly, and the cognate cases. The record did not raise the question whether an apportionment could be made where the houses are in no sense adjoining, but situated in different blocks and separated by streets. "Where materials are furnished to many houses, situated on different streets in different localities, it is certainly very easy to keep an account of the materials furnished for the different blocks, if not to the different houses. If a material-man will not do so much as that, and seeks to apportion a large amount, obtained by a contractor, among different houses upon different streets, surely he ought to be prepared to show by measurement, or by some similar proof, what proportion of the materials was actually supplied to the house he seeks to chai’ge. Otherwise, the practical result is that the apportionment is to be made according to his own arbitrary will, without any regard whatever to the rights of owners, and that such an apportionment is to be supported by simply proving that a large quantity of materials was obtained by a contractor upon the credit of many buildings which he was erecting in different blocks, and that the whole was supplied to him under a single contract for a gross sum.”
    The plaintiff then took out a writ of error, assigning as error the entry of judgment for the defendant non obstante veredicto.
    
    
      J. Quincy Hunsicker, for plaintiff in error.
    This is not an' apportioned claim. It is a several claim for a debt of $201.05 for materials furnished to the particular building as set forth in the body of the claim, established by the evidence and found by the jury.
    This ease is ruled by Davis v. Farr, 1 Harris, 167; and Harper v. Keely, 5 Harris, 234.
    Since a joint claim could not have been filed, if the plaintiff* cannot have a lien as filed, he can have no claim, and the first section of the Act of 1836 is practically defeated: See Millett v. Allen, 3 W. N. C., 374; Young v. Chambers, 3 Harris, 268.
    The statement at the head of the bill of particulars is not an essential part of it, and is a mere memorandum. It could be rejected as surplusage. The credit on which the goods were sold was for the jury: Church v. Allison, 10 Barr, 414,
    
      W. II. Drayton, for defendant in error.
    The claim is an apportioned claim, but one unauthorized by the Court: Russell v. Bell, 8 Wr., 54; Chambers v. Yarnall, 15 Penna. St., 265.
    The parol testimony cannot affect the lien: Bolton v. Johns, 5 Barr, 149; Dearie v. Martin, 28 P. F. Smith, 55; O’Neill v. Hurst, 33 Leg. Intel., 13; Day v. Garrett, 3 "W. N. C., 558; Nason Co. v. the Trustees, 4 W. N. C., 369.
    
      January 30th, 1882.
   — Per Curiam:

We affirm this judgment upon the opinion of the learned president of the Court below.

Judgment affirmed.  