B. F. Lee Co. v. Sherman
B. F. Lee Co. v. Sherman
Opinion of the Court
Opinion by
This case, No. 7, April Term, 1910, and No. 8, samé term and year, were sci. fa. sur mechanics’ liens, and the cases being precisely alike, were tried together in the lower court and argued together here. This opinion will be filed in No. 7, but what is said in it will apply to the other case at No. 8, and in the latter case we will simply file a short order disposing of the specifications of error and of the judgment. In both cases there were verdicts in favor of plaintiff for fixed sums of money and judgments having been entered thereon, the defendants appealed.
The first specification of error is, “The court erred in
The second specification of error offends against our rule XV, which reads: “Where error is to the charge of the court, or to answers to points or to findings of fact or law, the part of the charge or the points and answers or findings referred to must be quoted totidem verbis in the assignment.” This specification does not quote the point nor the answer, but merely gives the counsel’s conclusion as to what was done by the court. See Ewing v. Cottman, 9 Pa. Superior Ct. 444; and Crawford & Moyes v. McKinney, 165 Pa. 605. “An assignment of error will not be considered which does hot quote the judge’s answer to a point totidem verbis, although it contains the point:” Hall v. Phillips, 164 Pa. 494.
The third specification cannot be sustained for the reason that it, in our opinion, complains of a correct statement of the law. In support of this we need only refer to the last sentence of sec. 3 of the mechanic’s lien Law of June 4, 1901, P. L. 431 (see p. 433): “Materials placed on or near the curtilage appurtenant to the structure or other improvement, or delivered to the owner or contractor for use therein, shall be presumed to have been used therein.” We think the record contains sufficient evidence to warrant the trial judge in submitting to the jury the question of whether or not the materials for which the liens were filed were delivered to the defendants as averred by the plaintiff. And that question was fairly and adequately left to the jury.
Having concluded to overrule all of the specifications of error, we are not called upon to consider several matters discussed in the appellant’s argument but which are not properly raised for our consideration.
The specifications of error are all overruled and the judgment is affirmed.
Reference
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- Syllabus
- Appeals — Assignments of error — Nonsuit—Answer to point — Motion for judgment n. o. v. 1. The refusal of a compulsory nonsuit cannot be assigned for error. 2. An assignment of error will not be considered which does not quote the judge’s answer to a point totidem verbis, although it contains the point. 3. When the refusal of a motion for judgment n. o. v. is assigned as error, the motion must be printed in full, and the answer of the court should also be quoted and printed with the motion. 4. The action of the court in refusing a motion for judgment n. o. v. cannot be assigned for error where no exception has been asked for and obtained to such ruling. Mechanic’s lien — Delivery of material — Diversion of material. 5. Where a material man delivers to an owner material for a particular house, he cannot be deprived of his right to a mechanic’s lien against such house, because the owner has diverted the material to another building.