Opinion
April 27, 1928.
July 12, 1928.
Mechanics' liens — Release — Property mortgaged on strength of release — Liens subsequently disclosed — Contractor not liable to mortgagee for amount of undisclosed liens purchased to protect mortgage.
In an action of assumpsit to recover the amount paid for two mechanics' liens by a mortgagee of the property, the evidence disclosed that plaintiff took the mortgage on the strength of a release of liens, among the signers of which were the defendants. Attached to the release was an affidavit of the contractor that it was executed by all persons who did work as contractors or subcontractors upon or furnished material for the building. Two liens of material men were later disclosed which became prior in lien to plaintiff's mortgage, and plaintiff was forced to purchase them in order to protect the mortgage from divestiture by sheriff's sale on a later mortgage.
The signing of a release was not a certification of the amount of materials furnished by defendants, nor a guarantee that materials were not furnished by other contractors.
The affidavit of the principal contractor that the release was executed by all persons who did work or furnished materials for the building did not create a contract relationship between the signers of the release and the mortgagee, nor did the release establish any privity of contract between the signers and the mortgagee which would sustain an action of assumpsit. There was no understanding or assurance by the defendants in the execution of the release that they did other than release their own rights to file liens against the property.
Appeal No. 1495, April T., 1928, by plaintiff from judgment of C.P., Allegheny County, No. 363, July T., 1927, in the case of Cornea D. Tredway v. Thomas J. Ingram, trading as Kerr and Ingram.
Before PORTER, P.J., HENDERSON, TREXLER, KELLER, LINN, GAWTHROP and CUNNINGHAM, JJ. Affirmed.
Assumpsit by mortgagee against material man to recover loss sustained by relying on a release of liens. Affidavit of defense raising question of law. Judgment for defendant. Before EVANS, P.J.
The facts are stated in the following opinion of the court below:
A dwelling house was constructed for Martin P. Fischer by the Central Homes Company, it being the general contractor. The house having been finished, the Central Homes Company, the general contractor, furnished what purported to be a release of all liens for work done and materials furnished in the construction of that house. The words of the instrument which purported to be signed by all of the persons who had done labor or furnished material in the erection of the said building is as follows:
"Whereas, we, the subscribers, have erected and furnished materials for the erection and construction of a two story brick veneer residence belonging to Martin P. Fischer, house No. 56 Woodhaven Drive on a lot or piece of ground situate Lot No. 172 Woodhaven Drive, Beverly Heights, Mt. Lebanon Township, and have agreed to release all liens which we, or any or either of us, have or might have, on the said described property by reason of the materials furnished, or work performed, for erecting the same."
"Now, these presents witness, that we, the subscribers, for and in consideration of the premises, and of the sum of one dollar to each of us at or before the sealing and delivery hereof by the said Martin P. Fischer well and truly paid, the receipt whereof we do hereby acknowledge, have remised, released and forever quit-claimed, and by these presents do remise, release and forever quit-claim unto the said Martin P. Fischer and to his heirs and assigns, all and all manner of liens, claims and demands whatsoever which we, or either of us, now have or might or could have, on or against the said premises and building, for work done or for material furnished, or hereafter to be furnished, for erecting and constructing the said building or otherwise, howsoever. So that he, the said Martin P. Fischer, his heirs and assigns, shall and may have, hold and enjoy the said premises and building, free and discharged from all liens, claims and demands whatsoever, which we or any or either of us now have or might or could have on or against the same, if these presents had not been made."
"In witness whereof, we have hereunto set our hands and seals, on the day of the date written opposite our respective signatures."
Then follows the signatures to the paper, among them being Kerr Ingram, and below the different places which Kerr Ingram's name is signed are the words "milled work," "stair builder," "rough lumber." At the foot of said paper is an affidavit of J.C. Umstead, who appears for the Central Homes Company, general contractor and makes the affidavit.
"......; that the within release has been executed by all persons who did work as contractors and subcontractors upon and furnished material for said building, in the erection and completion thereof."
On the strength and the belief in the fact that all the parties that did labor or furnished material had executed the release of liens, the plaintiff loaned to Martin P. Fischer ten thousand ($10,000) dollars, receiving in security therefor a mortgage upon the premises described in the release of liens, supposing that she was receiving a mortgage which was the first lien upon those premises. Subsequently it developed that there were two persons who had furnished lumber in the erection and construction of the Fischer building, the liens for which were ahead of the Treadway mortgage. The property was levied upon by the sheriff on a mortgage which was subsequent to both the plaintiff's mortgage and the lien of the mechanic's lien, and the plaintiff bought the two mechanic's liens in order to prevent her mortgage for ten thousand ($10,000) dollars being divested by the sheriff sale.
The plaintiff brings this suit in assumpsit alleging that the defendant had signed a release of mechanic's liens and that it did not furnish all the lumber and did not furnish any lumber in the erection and construction of the Fischer house, and seeks to recover the amount of money which the plaintiff had to pay for the mechanic's liens which had been filed by the material men who had furnished lumber in the erection of the Fischer house, which mechanic's liens were divested by the sheriff sale and that the sale on the sheriff's sale was not for sufficient money to pay any amount on the mechanic's liens.
The defendant files an affidavit of defense raising questions of law. The questions of law raised are as follows:
"First: — The release of liens, a copy of which is attached to plaintiff's statement of claim, and upon which plaintiff's action depends, does not contain and is not a certificate as to the amount of lumber or materials furnished by defendant, or any other person signing said release."
"Second: — The signature of defendant to said release amounts to nothing more than a release of any lien that defendant might have against the building therein described and does not guarantee that materials of a similar kind have not been furnished by other contractors. Nor does such signature certify or guarantee that the materials specified in the printing below the signature have been furnished by the person so signing, nor that all persons furnishing such materials have signed the release."
"Third: — There is no contractual relation between plaintiff and defendant in this case sufficient to sustain this suit."
"Fourth: — Said statement is in other respects uncertain, informal and insufficient in law."
We fail to find any ground alleged in the statement of claim which would justify a recovery by the plaintiff in this suit. The releases of liens signed in this case were made to Martin P. Fischer and were simply a release of any liens which the signers had or may have. There is nothing to which the signers of the mechanic's liens certified. They simply release; and what gives to this paper of the release of liens credit is not the signatures of the various contractors, sub-contractors and material men, but the affidavit of Umstead, president of the Central Homes Company, the general contractor.
"......, that the within release has been executed by all persons who did work as contractors or sub-contractors, upon and furnished material for said building, in the erection and completion thereof."
There is no allegation that Ingram ever heard of the relationship between Fischer and the plaintiff in this case. There is no contractual relation between the plaintiff and the defendant. The plaintiff lays great stress on his allegation that Ingram by signing the signature of Kerr Ingram injured the plaintiff in some way by not having furnished any lumber at all. Now the plaintiff has made that allegation in his statement of claim and if it is material it is admitted so far as this question is concerned; but what difference does it make? He never certified to this plaintiff that he had furnished any lumber. He certainly did not certify to this plaintiff that other dealers in lumber may not have furnished material. We cannot see any contractual relation at all between this plaintiff and the defendant, and therefore the questions of law raised by the defendant in his affidavit of defense are found in favor of the defendant.
The court sustained the affidavit of defense. Plaintiff appealed.
Error assigned was the judgment of the court.
W.T. Tredway, for appellant. — The certifying and signing of the release was an apparent warranty which misled the plaintiff and an action of assumpsit will lie: Hexter v. Bast, 125 Pa. 52; Cox v. Highley, 100 Pa. 249; Cooper v. Gastieger, 278 Pa. 544; Gillespie v. Hunt, 276 Pa. 119; Rock, Executor, v. Cauffiel, 271 Pa. 560; Dowd v. Crow, 205 Pa. 214; Delefant v. Shapiro, 73 Pa. Super. 186. Robert A. Rundle, of Wright Rundle, for appellee.
Argued April 27, 1928.
The judgment is affirmed on the opinion filed by President Judge EVANS, of the Court of Common Pleas of Allegheny County.