
    Poole & Hunt v. Union Passenger Railway Co.
    On a scire facias sur ■mechanics’ lien, the plaintiffs offered evidence to show that the material was used in the building, its price, and that it was ordered by the alleged contractors. The defendant owners averred and offered evidence to prove that the alleged contractors had no authority as contractors to build the building, that the material had been sold to the alleged contractors upon their personal credit, that the material-men, whose place of business was in Baltimore, could not have furnished the material upon the credit of the particular building in which it was placed, for the reason that they had no knowledge of any such building. The court charged: “ If you find that the machinery was not furnished upon the credit of the building, although used in it, that is an end of the case, and the verdict ought to be for the defendants.” Held, not to be error.
    In such case, it is not error to decline a request to charge the jury that “ it is unnecessary to prove affirmatively that the machinery was furnished on the credit of the building. It must be true in fact that the machinery was so furnished, and such fact will be presumed where the plaintiffs have complied with the provisions of the statute relating to the lien which they claim.”
    Per Curiam. — There was enough in the defendants’ case to rebut the presumption that plaintiffs had furnished the materials upon the credit of the building; and there was no evidence that the alleged contractors had authority as contractors to bind it.
    The case of Hoar v. Gill, 111 Pa. 492, distinguished.
    
    Jan. 28, 1889.
    Error, No. 13, Jan. T. 1889, to O. P. No. 4, Phila. Co., to review a judgment on a verdict in favor of the defendants on a scire facias sur mechanic’s lien, at March T. 1883, No. 11, M. L. D.
    The lien was filed by Poole & Hunt against certain premises on Columbia avenue in Philadelphia, describing them and naming as owners the Union Passenger Railway Co. and as contractors the firm of Malster & Reaney, said building being used as an engine and machine house, stable and barn.
    The claim further stated as follows : “ The said sum of $5,594.50 being a debt contracted for materials, machinery,, and fixtures furnished and supplied for, in, and about the alterations and additions to> the brick building above described at the request of the said William T. Malster and William B. Reaney, trading as Malster & Reaney, contractors as aforesaid, by the said Robert. Poole and.G-erman H. Hunt, trading as Poole & Hunt, within six months last past, at the time and in the quantity in the annexed bill of particulars mentioned.”
    The bill of particulars is not given in the paper book of plaintiffs in error.
    • •• The defendants filed an affidavit of defense alleging that they were a corporation under the Act of 1864, P. L. 297, and subject to the general railroad Act of 1849, and supplements; “ that the machinery in said engine-house is the source of other motive power of said corporation in the traction of its cars, and the building containing the same is on ground purchased for corporate purposes; and that, without the same, the franchise of the corporation could not be maintained and executed; and for that reason this deponent is advised that said building and its contents are not subject to the lien of the claim filed herein.
    
      [“And deponent further saith, that the firm of Malster & Heaney, named as contractors in said claim, were not contractors for, in, and about the alterations and additions to the brick building in said claim described, nor wrere any of the materials obtained from them used in and about the same for such purpose. That said building was in the ownership of said company since February, 1871, and.its condition at the time that the machinery (of which that mentioned in said claim is believed to be a part) was placed therein had been caused by said corporation from its own funds and not by the aid and direction of Malster & Heaney as contractors.
    “And deponent further saith, that said corporation was merely a purchaser from Malster & Reaney of the machinery placed in said building, and before it had knowledge of the claim of the said plaintiffs had paid therefor in full, and that Malster & Reaney had no relation to said corporation as enabled them to purchase goods and chattels or materials on the credit of said building.”]
    It is stated by defendants in error, in their paper book, that the trial went off on the questions arising on the affidavit, as indicated within the brackets.
    The plea was nil debet.
    ■ The plaintiffs offered evidence to show that the material went into the building, and the price of it, and that it was ordered by the alleged contractors. The defendants offered evidence to establish the defense, averred in their affidavit of defense. The evidence is sufficiently recited in the charge of the court below. Plaintiffs, and the alleged contractors, live in Baltimore, Md.
    The court charged the jury as follows, by Arnold, J.:
    “ The question here arises upon the claim of the plaintiffs, the firm of Poole & Hunt, against the Union Passenger Railway Co. for a lien against the building used as an engine-house, formerly a stable, upon Columbia avenue near Twenty-third street. The law is well settled that, unless materials are furnished on the credit of a particular building, there is no lien, although such materials may have been used in erecting it. The first question for you to determine is, upon what credit did Poole & Hunt furnish this traction machinery. The correspondence was between Malster & Reaney, who seem to be contractors for doing machine work, and Poole & Hunt, who manufactured machinery. Malster & Reaney wrote asking what they could get certain machinery for, and Poole & Hunt replied for so much, and the material is delivered at Locust Point, Md., and not at Twenty-third and Columbia avenue. [Now if it was sold by Poole & Hunt to Malster & Heaney, for the pur?ose of being put into a particular building, known to the plaintiffs, ’oole & Hunt, and, upon the credit of that building, delivered to Malster & Heaney, this machinery at Locust Point, Md., the plaintiffs would be entitled to a lien for it.] [1.] [The point, however, is to determine upon what credit was this machinery furnished. It is stated here that the plaintiffs knew that Malster & Reaney wanted it for the Union Passenger Railway Co. Well, a railway company is a person as much as a man ; but for what building of the Union Passenger Railway Co. was the machinery required ? I recollect no evidence fixing the place where this machinery was to go which was pointed out to Poole & ITunt.] [2.] Now, if they did not, therefore, furnish this machinery to Malster & Reaney upon the credit of a building belonging to the Union Passenger Railway Co., they are not entitled to a lien, although the machinery was used in that building — you can understand that — because it was a personal credit to Malster & Reaney and not to a building. [If you find that the machinery was not furnished upon the credit of this building, although used in it, that is an end of the case, and the verdict ought to be for the defendants.] [3.] . . .
    “ Mr. King, one of the witnesses of the plaintiffs, in his deposition, says: ‘This work was made for this particular purpose .for Malster & Reaney by Poole & Hunt. This machinery was put up in a building, I think an old stable, belonging to the company. Room was made for this machinery and suitable excavations for foundations.’
    [“ I find nothing at all in this deposition, so far, which shows it was furnished by Poole & Hunt upon the credit of that building. If it was not so furnished it can be no lien, although the machinery went into the building.”] [4.]
    The court, after answering plaintiff’s points, continued:
    “ If you find any evidence in this case that Poole & Hunt furnished this machinery upon the faith or the credit of the building in which it was put, and if Malster & Reaney were contractors for its erection, then the lien is valid and may be sustained. If it was not so furnished, if it was simply sold to Malster & Reaney upon their personal credit and not upon the credit of the Union Passenger Company’s stable or engine-house, there can be no lien sustained in this case, although the machinery went there, and your verdict should be for the defendant.”
    The plaintiffs presented, inter alia, the following points:
    “ 2. It is unnecessary for the plaintiffs to allege in their claim or to prove affirmatively that the machinery was furnished on the credit of the building. It must be true in fact that the machinery was so furnished, and such fact will be presumed where the plaintiffs have complied with the provisions of the statute relating to the lien which they claim.” Ans. Refused. [5.]
    “4. The plaintiffs having shown that they furnished this material to Malster & Reaney, and that it was used by the latter in the alteration of the building of the defendant company in accordance with the undertaking of Malster & Reaney, the presumption is that it was furnished by the plaintiffs on the credit of the building.” Ans. Refused. [6.]
    “ 6. Any evidence that satisfies the jury that the work and material were furnished for and about the alteration of the building mentioned in the lien is sufficient to entitle the plaintiffs to recover;” Ans. “This is for me. It is .not for the jury to consider at all.” • [7.j
    
      Counsel excepted to tlie refusal of the points and the portions of the charge in brackets.
    Verdict and judgment for defendants.
    
      The assignments of error specified, 1-4, the portions of the charge included within brackets, quoting them; and, 5-7, the answers to plaintiff’s points, quoting them.
    
      Rowland Evans and R. L. Ashhurst, for plaintiff in error.
    Our second point is in the very words of the supreme court in Noar v. Gill, 111 Pa. 492; the fourth follows Hommel v. Lewis, 104 Pa. 471; and the sixth, Wolf v. Batchelder, 56 Pa. 89, followed in Noar v. Gill, supra.
    The jury having been first rightly instructed that they must find that the work was done on the credit of the building, were then wrongly instructed that they could not presume this from our testimony without express affirmative proof. The court overlooked the fact that we had made out a prima facie case, and that the burden was then on the defendant to satisfy the jury that some essential element of our case was wanting. Von Billiard v. Nace, 1 Grant, 234. It was not necessary that the particular building should be known to the plaintiffs. Church v. Allison, 10 Pa. 415; White v. Miller, 18 Pa. 54; Hinchman v. Graham, 2 S. & R. 171.
    Apart from authority, it is difficult to see any reason for a rule which would require the «’editor to have any special and particular building in view at the time of furnishing the material. If so, it would be practically impossible for those who furnish material for buildings at a distance to obtain a lien.
    Of what materiality is the knowledge in the mind of the material-man of the exact location % How could he be contradicted, if he swore to such knowledge; or, if the owner happened to be dead, how could he recover at all ?
    It may be fairly inferred that the particular purpose, testified to by Mr. King, included the particular location.
    
      David W. Sellers, for defendant in error.
    The instructions of the court were fairly based upon the whole evidence. The cases cited by the plaintiffs in error do not differ with the trial judge. The ruling on the points is to be referred to the general charge. R. R. v. Coon, 111 Pa. 431. Noar v. Gill, supra, was a contractor’s claim, whose relation to the building was established by a written contract. Hommel v. Lewis, supra, was a claim for materials furnished at the request of an undoubted contractor, and the materials were actually furnished for the building.
    Malster & Eeaney were not contractors and the railway company could not pre-suppose that the credit of the building had been pledged. Brown v. Cowan, 110 Pa. 588.
    Feb. 11, 1889.
   Per Curiam,

The learned judge below fairly submitted to the jury the two important questions of fact in this case, viz : (a) whether Malster & Beaney were contractors for erection and construction, and (b), whether the articles, for which the claim was filed, were furnished upon the credit of the building, or were sold to Malster & Heaney upon their personal credit. Material that is furnished to a contractor for the erection of a particular building is prima facie upon the credit of such building. If it be furnished for and entered into the construction, the burden is upon the defendant to show that it was furnished upon the credit of the contractor alone. Hommel v. Lewis, 104 Pa. 465; Noar v. Gill, 111 Pa. 488. In the case in hand, the defendants alleged that Malster & Reaney were not contractors; that they had no authority as contractors to build' the building; that the articles referred to were sold by plaintiff to Malster & Heaney upon their personal credit, and that the plaintiffs, whose place of business was in Baltimore, could not have furnished the machinery upon the credit of the particular building in which it was placed, for the reason that they had no knowledge of any such building. It was under such circumstances that the court instructed the jury that “If you find that the machinery was not furnished upon the credit of the building, although used in it, that is an end of the case, and the verdict ought to be for the defendant.” This means, in view of the facts, that the credit must have been given to the building and not to the contractor. We see no error in this instruction.

The language in the plaintiffs’ second point, taken from the opinion of this court in Noar v. Gill, supra, is entirely accurate in the sense in which it was used in that case; it is not equally applicable here. There was enough in the defendants’ case to rebut the presumption that plaintiffs had furnished the materials upon the credit of the building; and there was no evidence that Malster & Heaney had authority as contractors to bind it. Under such circumstances, it was not error to refuse the plaintiffs’ second point. None of the assignments of error is sustained.

Judgment affirmed. A. B. W.  