Claimants entéred into a written contract with the contractor to furnish and install plumbing fixtures in the owners’ dwelling for $406.35. The contract specifies the kind, number and quality of the several fixtures to be installed in the house itself, as well as the connections to be made from them to the main pipes at the curb-line. After performing a part of the work required by the terms of the contract, that is, after installing what is called the “rough plumbing,” the claimants ceased work, alleging that the contractor had not made the payments called for by the contract. (It should be here stated that a time for payment does not appear in the contract.) Because of this cessation of work, claimants were not obliged to install certain fixtures called for by the contract. These fixtures, claimants aver, were worth $116. Accordingly, from the total amount of the contract ($406.35) there is deducted the value of the fixtures not furnished ($116), and the resultant ($290.35) is said to be the cost of the “rough plumbing” furnished for which the lien is filed. A credit of $150, representing a payment made by the contractor, is allowed and the net amount for which the lien is filed is $140.35. The sum of $290.35 must be taken to represent either labor or material, or both, actually furnished to owners’ building, and if the claim sets forth “the nature or kind of work done or the kind and amount of materials furnished, or both, and the time when the materials were furnished or the work done, or both, as the case may be” (Act of April 17, 1905, § 1, P. L. 172), the lien is sustainable.
To support the lien, claimants have attached an exhibit entitled “itemized statement of rough plumbing installed at . . . between Sept. 6, 1923, and Sept. 14, 1923.” Then follow forty-four separate items. Of these, forty state the quantity and kind of pipes, ells, plugs, lead, nipples, etc., but not stating the specific dates when they were installed nor the prices charged therefor. A typical item is: “85 feet, 4 inch X H Soil Pipe.” One item is for “Carfare, $6.92,” and three items are for labor, of which the following is typical: “Hess, plumber, 461 hours.”
This statement, the owners contend in support of their motion to strike off the lien, constitutes a lumping charge, and rely upon Burrows v. Carson, 244 Pa. 6. In that case, a sub-contractor for furnishing and erecting stairs in a dwelling-house averred that labor and material were furnished “between the dates of April 4, 1911, and Nov. 20, 1911,” and supported this by an itemized
Upon appeal to the Supreme Court, the judgment of the Superior Court was affirmed, and from the opinion there rendered we extract the following: “The claim as filed shows that the material and labor ‘substantially consisted of furnishing and erecting stairs in said house,’ and that they ‘were furnished between the dates of April 4, 1911, and Nov. 20, 1911.’ This was not a compliance with the statutory requirement as to the nature or kind of work or when it was done. The items of materials and the dates when they were furnished are stated in the claim, but, as suggested by the Superior Court, it fails to show the nature of the work, whether it was done in preparation of the materials at the shop of the plaintiff, or in incorporating them into the building by carpenters, cabinet-makers, assistants or laborers. The only information as to the time when the labor was furnished is the statement that it was performed between the dates of April 4th and Nov. 20, 1911; that is, sometime during a period of seven months. Such claims have never been held to be sufficient as to the kind of work or the time when it was done, either under the present or prior legislation on the subject. They fail to give the necessary information to the owner to enable him to determine the correctness of the claim for which the contractor is primarily liable. The claimant here is a sub-contractor, who dealt with the contractor and not with the owner, and the latter is liable for the debt which is that of the contractor only when claimant complies with the provisions of the statute which gives him the lien.”
On the other hand, the claimant relies upon Bennett L.& M. Co. v. Hartrick, 61 Pa. Superior Ct. 456. In that case a sub-contractor furnished lumber and mill-work under a contract consisting of “the oral acceptance on or about Dec. 19, 1911, by T. O. Reese, of a written bid made by claimant to furnish certain lumber and millwork for said building for $900.” It is also alleged that “of said lumber and millwork so agreed to be furnished there was furnished between the dates of Dec. 19, 1911, and April 23, 1912, the following,” and here follow ten items of frames and doors, valued at $247, but without statement as to when the several items were installed in the structure. The claim is for materials only; there is no charge for labor; apart from this, the lien bears a striking resemblance to the one in the instant case. Noticing the objection that the claim is a lumping charge, the Superior Court says: “It is further objected that the lien is a lumping charge, in that the price in each item of materials is not given. The 11th section of the Act of June 4, 1901, P. L. 431, as amended by the Act of April 17, 1905, P. L. 172, directs what shall be set forth in a claim of this character. The second paragraph of the section requires a statement of ‘the amount or sum claimed to be due and the nature or kind of the work done or the kind and amount of materials furnished, or both.’ This provision calls for a statement of the amount claimed to be due and of the kind and amount of materials furnished, but there is no statutory requirement calling-for a statement of the price of each article. The object of such information is to give the owner the necessary knowledge to enable him to determine the correctness of the claim, and where the information contained in the lien is sufficient, on inquiry, to give him such knowledge, it is all that the law requires. ‘All the cases agree that a substantial compliance is sufficient, and this is shown to exist wherever enough appears on the face of the statement to point the way to successful inquiry:’ Ameri
This decision sustains the lien, although the dates when the several items were furnishred does not appear. The Superior Court does not refer to this factor in its opinion, but the subject had the attention of the court. For it was upon this ground that Judge Kephart filed a vigorous dissent, in which, after reviewing a number of authorities, including Burrows v. Carson, 244 Pa. 6, he contends that the lien was defective because the dates upon which the several items were furnished did not appear.
Upon first blush, these two cases appear to be in conflict. That is, under the Burrows case, a charge for labor furnished between certain dates is not sustainable, while in the Bennett ease a charge for materials furnished between certain dates is sustainable. Ordinarily, a conflict of decisions between our appellate courts involves no difficulty; that of the Supreme Court is authoritative. But the question cannot be solved in that manner, for the Supreme Court has cited the Bennett case with approval: Ott v. Du Plan Silk Corporation, 271 Pa. 322, 327. Moreover, in the last cited case the Supreme Court has distinguished the Burrows case. In the Ott case, from the meagre report of the facts, it appears that a sub-contractor for excavating filed a claim which set forth the number of cubic yards removed, the price charged per unit and the total amount due on account thereof. It does not appear that the dates upon which the work was done were set forth, except the date of completion. It does not appear that objection was made to the fact that no dates were stated, but objection was made to the lien as a lumping charge, and concerning this the court said: “This case is to be distinguished from those in which liens have been held defective in charging a lump sum against several properties without setting forth the nature and amount of the work done on each: McFarland v. Schultz, 168 Pa. 634; Brant v. Hartrick, 60 Pa. Superior Ct. 507; or where, as in Burrows v. Carson, 244 Pa. 6, the claim was for labor, covering a considerable period, in building stairs for a house, no indication being given as to whether it was performed ‘in preparation of materials used in the house, at the shop of plaintiff, or in incorporating them into the building by carpenters, cabinet-makers, assist
The problem is still further complicated by the circumstance that the Superior Court has distinguished its Bennett case. In Barker Painting Co. v. General Carbonic Co., 78 Pa. Superior Ct. 493, a sub-contractor submitted to the contractor a written estimate for painting and glazing the structure, which estimate the contractor accepted verbally. To fulfill the contract, the claimant furnished: “Two painters at different times from Feb. 5, 1920, to June 11, 1920, each of whom worked ten days; three painters at different times from Feb. 5th to June 11, 1920, each of whom worked five days; four painters from Feb. 5, 1920, to June 11, 1920, each of whom worked four days.” The materials furnished were itemized, but “no dates are given showing when the various materials were furnished, except the time of beginning and ending the work.” The lien was condemned, and toward the end of the opinion (page 496) it is said that: “In Bennett L. & M. Co. v. Hartrick, 61 Pa. Superior Ct. 456, 469, there was a written contract for the material to be furnished for a lump sum. It was there held that the statement of claim was sufficient. It would have been otherwise, however, if the claim had been based on an account for the market value of the material.”
Probably, the last ease furnishes the solution of the problem; for, in addition to what has already been stated, the Superior Court said: “A careful reading of the lien gives the impression that the claimant intended that he made an estimate of what the work would cost, that the contractor authorized him to proceed with the undertaking and that the contractor charged, not a lump sum on the contract, but what the labor and material were worth. If this is the correct view of the claim, the appellant’s account is for the actual value of the labor and material, in which case, as a sub-contractor, it was his duty to set forth the dates and amounts of the materials and the labor performed in the execution of the work. ... In the absence of an express contract calling for a .lump sum, the claim of a sub-contractor should set forth the dates when the material was furnished or the work done, in order that the owner may have information as to the character and integrity of the account.”
In short, without a further attempt to reconcile whatever differences may appear in the cases under discussion and others that might be mentioned in this connection, it appears that the true rule is this: That when a sub-contractor claims upon a contract which specifies a lump sum for the work and materials, his lien will be sustained, even though it does not itemize the materials and labor furnished and does not state the specific dates when they were furnished, if it fairly apprises the»owner of sufficient facts “to point the way to successful inquiry:” American Car and Foundry Co. v. Alexandria Water Co., 215 Pa. 520. On the other hand, if the sub-contractor claims the market value of the labor and materials, as in the Barker case, or upon a contract which calls for work on several structures and there is no apportionment of the claims, as in the Burrows case, or if, as in the same case, a claim for labor covers a considerable period and does not indicate whether it was performed in preparing the materials or in incorporating them into the structure or is otherwise insufficient “to point the way to successful inquiry,” he is obliged to set forth the dates when the labor and materials were furnished. And the fact that the work called for by the contract was not entirely
Applying these principles to the instant case, it is apparent that the claim is not subject to objection. Claimants stand upon a written contract for the furnishing of labor and material for one house for a lump sum price. They state the labor and materials which they furnished and the value of them, and show how they arrived at that value, i. e., by deducting from the total lump sum price the value of the articles they were not obliged to furnish. They do not state the dates upon which the items were furnished, but this, as we have seen, is unnecessary. Nor can we see how they could have done better. They state that the work was done between “Sept. 6, 1923, and Sept. 14, 1923” — a period of seven working days. The labor items, therefore, do not extend over a long period, as in the Burrows case, and, adopting the reasoning of the Superior Court in that case (page 495), the items show that the work was fairly continuous and that each workman expended about seven and a-half hours daily of labor on the work. Nor do we think that claimant could more accurately specify the dates upon which each item of material was installed. How could he tell when the eighty-five feet of pipe were installed? Perhaps some of it was laid on Sept. 6th and part of it on the 9th. However, further discussion is unnecessary, in view of the conclusion we have reached. The claim contains sufficient information to enable the owners to determine the correctness of the claim.
This conclusion applies as well to the .sub-contractor’s notice of his intention to file a lien.
Now, Dec. 8, 1924, the motion to strike off is overruled and discharged.
From Edwin L. Kohler, Allentown, Pa.