Tinkey Lumber Co. v. Lay
Tinkey Lumber Co. v. Lay
Opinion of the Court
It is contended here that the affidavit filed by the plaintiff was insufficient to establish a lien for the reason that it did not include an itemized statement of the claim for the lumber sold or have such statement attached thereto. It seems to have been the contention of the defendants in the Court of Common Pleas that such itemized statement was a necessary requirement to the validity of the affidavit as required by 8314 GC. The answer to this contention is that the section in question does not expressly provide that an itemized statement shall be attached to the affidavit and.that the statutory law under which it formerly was necessary to attach such statement is no longer in effect. This condition in the law is fully explained by Beemann on Mechanics Liens, Section 84, where it is said:
“A former section of the act required that the affidavit contain an itemized statement of the valüe and amount of the lumber, material, machinery or fuel, and show an indebtedness on the part of the owner of such interest in the land. While the present section of the act does not set forth such reqixirement it may be said to be a good practice to attach an itemized account to the affidavit for the lien.”
It appears from the evidence that the material sold by the plaintiff to the defendants was purchased at various times and that the account for the same was what is generally known as a running account. The only difficulty in the matter is that the defendant Lay was making other purchases at the same time as those involved in the case before us and all these various items were charged against him in the general account. However, there seems to have been no difficulty in separating the charges for the material furnished in the construction of the building on the property described in the petition from other items arising from different transactions.
The affidavit in support of the lien followed strictly the form prescribed by Section 8314 supra and we are constrained to conclude that having followed the express provisions of the statute the failure to attach an itemized statement of the account does not impair its validity.
It is further contended that the defendant Lay made a payment to the plaintiff at one time of $700 which should have been
A finding for the plaintiff may be entered for the amount claimed in the amended petition, which is found and decreed to be the first and best lien on the premises described therein, and this cause is remanded to the Court of Common Pleas for further proceedings according to law.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.