
    WILCOX LUMBER COMPANY vs. ASAY.
    An apportioned lien against a single house cannot oe filed under a • ■contract to erect numerous buildings or different blocks of houses on different sides of the same street.
    Error to Common Pleas No. 4, of Philadelphia County No. 19½, July Term, 1881.
    Jackson S. Schultz, trading as the Wilcox Lumber Company, entered into a written contract with C. E. Asay, A. Merritt & Wm. T. B. Roberts to furnish lumber for twenty ¿ four houses, on Butler street, west of Thirteenth, twelve houses being on the north side and twelve houses on the south side of said Butler street. The same quantity of lumber was used in each house, and the builders made out an order ‘for the lumber for one house, and then ordered twenty-four times the •quantity, as all the houses were being built together. Payment was not made and the Lumber Company filed twenty-four liens, one against each house, and each for one twenty-fourth part of the amount due for the lumber. Upon the scire facias issued upon one of these claims, the defendant contended that the lien could not be sustained. The jury rendered a verdict for plaintiff for $146.14, subject to the opinion of the Court upon the question reserved. The Court subsequently entered judgment for defendant non obstante veredicto upon the point reserved; in the following opinion, per
    
      Thayer, P. J.
    The point reserved arises out of the trial of a scire facias on a material man’s claim for $201.05 against a house on the south side of Butler Street, which claim is for lumber furnished “at the times and in the quantities in the annexed bill of particulars mentioned.” The bill of particulars contains no charges for any particular quantity of lumber furnished specifically on the credit of this house, but is “for lumber ordered by W. T. B. Roberts for houses on the north and south sides of Butler Street, west of Thirteenth Street, Philadelphia.” Then follows a large number of items charged from August 2d, 1878, to January 13th, 1879, aggregating $4,825.08. To-this is annexed the following apportionment: “The materials, &c., mentioned in the foregoing 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 saíne or similar description, twelve of which are situate 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 buildings are situate on the south side of Butler Street, west of Thirteenth Street, as is shown by a plan of the said buildings and lots which is hereunto annexed, and made part thereof, showing the location and size of the buildings and lots, and all of which the said A. Merritt Asay, Jr.,, and Casper A. Asay, are the owners or reputed owners, and the said Casper E. Asay and William T. B. Roberts, the contractors, and against all of which buildings said claimants claim to have a lien for a proportionate part of the same debt, for which claims are filed in- the same court with his claim to the present June term, 1879. The annexed claim is for an equally-apportioned pro rata or part of said sum of 825.08.
    
    
      ■ 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 $4,825.08, was furnished for twenty-four houses, twelve of which are on the north side and twelve on the south side of Butler Street, one of the public streets of Philadelphia; twelve of the houses were therefore 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 twenty-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 sin. ¿le claim against each house. The Court reserved the point whether this claim, unsupported by any other proof than that the lumber ivas 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 the As.ssmbly and the construction which they have heretofore re. ceived.
    Upon the argument, it wras 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; Donohoe vs. Scott, 2 Jones, 45; Calhoun vs. Mahon, 2 Har., 56; Hill vs. McDowell, Ib., 175; McClintock vs. Rush, 13 Smith, 203.
    Indeed, it must be apparent that if the plaintiff were to stand upon the claim alone, r ejecting the bill of particulars, it could not be main ained, for ‘-the amount of materials furnished and the time when they were furnished,” nowhere appear with sufficient certainty, except in t he 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 $4,825.08, 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 plain that this is an apporkoned 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.” Russell vs. Bell, 8 Wr. 54; Rehrer vs. Zeigler, 3 W. & S., 258; Lehman vs.' Thomas, 5 W. & S., 262; Witman vs. 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 for 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 Acts 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 case of Pennock vs. 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 houses might be filed against all the houses jointly, or they might be apportioned and separate claims filed against each. Pennock vs. Hoover, as well as the subsequent cases of Davis vs. Farr, Har., 167, and Harper vs. Keely, 5 H., 234, are authorities which decide that either joint or separate appor. tioned claims may be filed against adjoining houses. But there is no claim 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 vs. Young, 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 vs. Chambers, 3 Har., 267; Taylor vs. Montgomery, 8 Ib., 443; but in Young vs. Chambers, and the subsequent case of Goepp vs. Gartiser, 11 Casey, 130, followed in our own case of French vs. 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. But the principle upon which they rest seems to control the present case, for, as w'e 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 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 vs. Farr, Harper vs. Keely, Fitzpatrick vs. Allen, 30 Smith, 294; Rush vs. Bank, 2 W. N. C., 263; Armbrust vs. Galloway, 2 Ib., 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 vs. Allen, 3 W. N. C., 374, was that separate apportioned claims may be filed when the materials have been indiscriminately furnished for several buildings. The case is but a confirmation. of Lav s vs. Farr, Harper vs. Keely, 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 oil 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 charge. 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.
    Judgment for the defendant on the point reserved non obstante veredicto.
    
    The Wilcox Lumber Company then took this writ of error, •complaining of the entry of judgment for defendant.
    
      J. Q. Hunsicker, Esq.,
    
    argued the amount of lumber for each house was fixed, and the claim was valid, and • cited: Fitzpatrick vs. Allen, 80 Pa., 294; Pennock vs. Hoover, 5 Rawle, 291; Davis vs. Farr, 13 Pa., 167; Harper vs. Keely, 17 Pa., 234; Millett vs. Allen, 3 W. N. C., 374; Church vs. Allison, 10 Pa., 414:
    
      W. H. Drayton, Esq., contra, relied on Young vs. Chambers, 15 Pa., 268.
   The Supreme Court affirmed the judgment of the Common Pleas on January 30th, 1882, in the following opinion:

Per Curiam.

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

Judgment affirmed.  