The opinion of the Court was delivered by
Sergeant, J.— This was an action of assumpsit in the Court below, brought by B. & J. Naglee against William Linn, in which the plaintiffs declared in indebitatus assumpsit, for lumber and materials found and provided for the defendant by the plaintiffs, alleging in the first and second counts, that they were to be applied in and about, and were furnished on the credit of a factory and other buildings erected by the defendant, on a lot described. The fact appeared to be, that the defendant was not the owner of the lot or building, but was merely the contractor engaged by the owner to put up the buildings; and the plaintiffs alleged that the defendant had ordered the materials and used them for that purpose. No claim had been filed by the plaintiffs within the six months allowed by the act of assembly in relation to the liens of mechanics and others, but the suit was brought within the period of two years from the time of delivering the materials. Two questions seem to have been discussed in the Court below; and the answers of the Court in relation to them have been assigned as errors here. First, whether the plaintiffs could in this suit charge the buildings themselves;— secondly, whether the defendant was liable as debtor: and on both these points the Court below answered in favour of the plaintiffs.
It was settled by this Court in the case of Klingler v. Rogers, (3 Wharton’s Rep. 332,) that according to the true construction of the act of 28th of March, 1808, and the prior acts, in no case whatever, *97(except where there is a judicial sale of the premises within the two years,) can the plaintiff have recourse to the buildings themselves for work done or materials found, by a scire facias, or by-a personal action against the contractor, not being the owner, unless the plaintiff has filed his claim within six nnonths from the time when the work was done or the materials foutnd. This is an indispensable prerequisite in every such case. It follows- therefore, that as.the . plaintiffs in the present case had not filed their claim within the six months, that part of the inquiry pursued in the Court below which related to the liability of the buildings for the present debt, was irrelevant to the case : and though the Court below erred in their answers to the questions propounded by the defendant on this head, yet according to the se'ttled law, an error in the trial of a part of the issue, which is altogethér immaterial, and which therefore can prejudice no one, will not be used as an instrument of reversal, when there is another and material averment in the declaration, which is sufficient to determine the merits of the cause. Edgar v. Boies, (11 Serg. & Rawle, 451.) That other averment in the declaration was, that the articles had been furnished by the plaintiffs at the defendant’s request, and that he promised to pay for them. On this point it is not denied, that the. Court charged correctly, namely, that this action must be brought against the original debtor, and that it was a question of fact whether the defendant was the, original debtor. We therefore think, the judgment ought not to be reversed for this mistake, more especially as it appears to have been wholly introduced into the cause by the plaintiff in error himself.
A bill of exceptions was taken to the admission in evidence of the plaintiffs’ book of original entries, in which the charges were made to William Linn, for factory, on account of Williams & Nixon— to Williams & Nixon, got by Linn — -Williams & Nixon, got by W. Linn — Williams & Nixon, got by Linn for factory — Williams & Nixon.. It was not, however, till strong evidence had been given by the plaintiffs, tending to show that the defendant had ordered the lumber in question, that these books were admitted by the Court. When they were offered in the first instance, they were rejected,, as they showed no charge against the defendant. But after other evidence was given, tending to substantiate such a charge, then we think the books were admissible to show the amount and price of the articles alleged to be the same, which had been already proved.
Judgment affirmed.