delivered the opinion of the court November 9th, 1885.
This case arises upon a scire facias sur mechanics’ lien, issued by Cowan & Steele against Samuel H. Brown, owner, and J. D. Barnes, contractor; the claim is $213.07 for lumber sold by the plaintiffs to Barnes, a part of which, at least, was used in the construction and repair of a dwelling house belonging to Brown. It is conceded that the purchase of the lumber was by Barnes, and that Brown knew nothing whatever of Cowan & Steele in the transaction. The vital question in the cause for determination at the trial was whether or not at the time of the purchase of the lumber any such relation subsisted between Barnes and Brown as would, under the mechanics’ lien law, bind the property of Brown for the price. The lien exists only by Statute, and. the right in any case to maintain it must, of course, be found in the Statute. " The Act of 16th June, 1836, contemplates that the work or materials for which a lien may be entered may be performed or furnished either under a contract with the owner, or with the contractor, architect or builder. It is admitted that Cowan & Steele did not furnish this lumber, directly or indirectly, under any contract with the owner; Brown was, therefore, in no way personally responsible for it. But was the dwelling house of Brown, with the curtilege appurtenant, liable for the lumber *592through the contract of Barnes ? This involves the question whether or not Barnes was a contractor, architect or builder within the meaning of the Act of 1836.
In Duff v. Hoffman, 63 Pa. St., 191, a contractor is defined to be a person employed to erect or construct a building or any main division thereof; and, of course, where a lien is allowed for work or materials for the repair, alteration or addition of a building, the contractor is the person employed to construct the same. A contractor is not a mere workman nor a material man; there is a plain and obvious distinction between a contract to erect or repair, and a contract to furnish towards the erection or repair whether it be of work or materials. An architect or builder is the agent for the owner, and, representing him, has power by contract to subject the building to a lien for work or labor procured by him; the contractor, however, builds upon his own credit, and binds the building by virtue of the peculiar statutory relation he bears to the owner under the contract.
Upon a careful examination of the entire testimony in this case, we find no evidence which would justify a jury in finding that Barnes was either a contractor, architect or builder. There is no proof, whatever, that he had the contract for the erection or repairs of this building or any part of it; and it is not pretended that he was an architect or a builder. At the time the lumber was purchased, he was not employed in any capacity whatever, either as a workman or otherwise; his contract was to furnish lumber, that and no more, and it is well settled that one who merely furnishes lumber or other materials towards the erection of a building is not a contractor; there is no privity between him and the owner through which those from whom he may purchase the materials may subject the building to a lien. It does appear that Barnes worked upon the building a day or two after the building had beer about half completed, and received wages at the rate of $2 or $2.50 per day; that, at the same time, he agreed to superintend the work to some extent, but, having other work to do, after two days labor had been performed, he ceased both to work and to superintend, and thereafter had no connection whatever with the building.
The learned judge, however, seems to have been of the opinion, and so instructed the jury, that it was immaterial whether Barnes was in fact a contractor, architect or builder if, at the time of the purchase, he represented himself to the plaintiffs to be such, and the lumber was furnished upon the faith of these representations, and upon the credit of the building.
In his.general charge, he says: “Did Mr. Barnes represent *593to the plaintiffs that he was the contractor for the building to be repaired or put up, and that the lumber was for Mr. Brown’s building? Did he represent that to the plaintiffs? He may have represented a falsehood ; it may be that he was not stating the truth; that does not affect the plaintiff's. Did he represent that he was the contractor? Did the plaintiffs part with their property on the faith and credit and confidence that the building would be subject to the payment of their claim, as the mechanics’ lien law authorizes?”
After the jury had retired, they returned, and propounded to the court this inquiry: “Is the fact of Barnes being considered the contractor essential in determining a verdict?” To which the court replied as follows: “I suppose jmu mean by that it is essential to find from the proof, if satisfied on that question, whether or not Barnes was actually the contractor, in the sense and meaning of the word contractor. We think we said to you that, if he.held himself out and represented himself to the plaintiff here, Mr. Cowan, as a contractor or as having a contract, and if you find that the plaintiff parted with the lumber on that strength, and upon that faith, it is not necessary, in the trial of this case, to follow that up and ascertain the contract, what shape it was in between the contractor and owner. The matter for the jury to ascertain, under the proofs in this case, is what led the plaintiff to part with his property. This man, Barnes, may have been a fraud, or he" may have been a villain, and possibly was, or he would not have left this debt unpaid.”
This instruction was palpably erroneous. That the owner of a building could thus be entrapped into the payment of a debt which he never contracted, and which was not contracted by any one having any legal authority to bind him, or his estate, is so monstrous that the mere statement of the proposition is a sufficient argument to refute it. If the law were so, the owner of a building, in process of construction, would be at the mercy of every lying scoundrel who could induce a purchase of materials upon the supposed credit of the building under the false pretence that he was a contractor', in whole or in part, for its erection.
It is the plain and obvious duty of one who deals with an alleged contractor to know the relation which he bears to the owner; failing in this, he furnishes labor or materials at his peril. In this case, the owner did nothing which he should not have done, he omitted nothing which, under the circumstances, he should have done to protect himself in the purchase of this lumber. On the other hand, the plaintiffs seem to have accepted the statement of Barnes without inquiry; they gave no such diligence to the ascertainment of the exact authority *594of Barnes as a reasonable degree of prudence demanded; by shipping the lumber to Barnes, they intrusted him with the possession which is the indicium of ownership and one of the muniments of title to personal property. Brown was or seems to have been a bona fide purchaser from the apparent and accredited owner, and it is a rule well settled in the law that, when a loss must fall upon one of two innocent pai'ties, it must be borne by the party whose negligence or lack of prudence aud forethought occasioned the loss.
Judgment reversed, and a venire facias de novo awarded.