Miller v. Barroll

Bartol, J., delivered the opinion of this court. The appellants, on the 16th of December 1854, filed in the office of the clerk of the Court of Common Pleas, their claim upon a dwelling house and appurtenances, for work done and materials furnished, at the instance of Jacob F. Kridler, who, they allege, was the owner of the properly. No scire facias having been issued, the appellee filed his petition in said court, under the 22nd section of the Act of 1838, ch. 205, alleging that he was the owner of the property, and praying that Kaufman and Miller might appear and proceed to establish their lien, as if a scire facias had issued. A trial was had, and the verdict and judgment being in favor of the appellee, this appeal has been prosecuted.

It was agreed between the counsel, “that under the plea, non assumpsit, the claimant and defendant might avail of any defence which could be made by special plea, as fully and to all intents and purposes.” In our opinion, the evidence offered by the plaintiffs, in the first bill of exceptions, was properly rejected as irrelevant. The question in issue was, whether the plaintiffs had done the work on the house, on which the lien was claimed, in pursuance of a contract with Kridler to do all the painting on that house, or to do all the painting on all the houses built by Kridler, and the proof offered was, that they had painted several other houses, in 1853 and 1854, for Kridler, and, in each instance, had done the whole painting on said houses. This evidence could not tend to prove the fact for which it was offered. But we think there was error in the ruling of the court on the second bill of exceptions.

The testimony of the witness, Miller, of the declaration made by Kridler to one of the plaintiffs, about the time when the house in question and the one adjoining thereto (which Kridler was also building) were commenced, was competent evidence to go to the ¹⁸³ jury for the purpose stated in the exception, and ought to have been admitted. We are also of opinion that the court erred in refusing the plaintiffs’ prayer, and in granting the second and third prayers of the defendant. They form the third exception, and present the question, as succinctly stated in the appellants’ brief; “whether the sale by Kridier to Barroll, of the house and lot, whilst the house was in process of erection, and unfinished, altered or affected the rights of mechanics who were then engaged in doing, and continued afterwards to do work, under a previous employment by Kridier, when owner?” Both the second and third prayers of the