NORTH MOUNTAIN WATER SUPPLY CO. v. TROXELL

the learned judge, was "simply to permit the NORTH MOUNTAIN WATER SUPPLY CO. flow from the lake into the creek, of water

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

rights of the parties judicially determined. | no lien should be filed against the contemThe trial judge concedes that in continuing plated building, either by itself or by any the preliminary injunction he decided the subcontractor. Jonker D. Lit was the origmatter "largely upon the public interest in- inal owner of the ground, and it was with volved, and expressly upon the understand him upon August 8, 1907, that Moore & Co. ing that the private right to claim damages entered into a written contract for the conshall not be prejudiced." It appearing that struction of the building. Subsequently the at the date of the final decree there was no Locust Realty Company was incorporated, occasion for issuing or continuing the injunc- and by deed dated October 8, 1907, Lit contion as prayed for in the bill, the decree was veyed the premises on which the building in erroneous, and therefore in entering the final question was in course of construction, to decree there was no necessity for determin- the Locust Realty Company, and at the same ing the rights of the parties to the waters of time assigned to the Realty Company his inthe lake and creek or the right of the defend- terest in the contract with Moore & Co. The ants to maintain the dam. The decision of contract between the plaintiffs in this case those questions may well await an occasion and Moore & Co. was made January 2, 1908, when their judicial ascertainment in an ap- and the first materials were delivered by propriate action is required to determine the them on January 16th. Upon the trial plainissue between the parties. tiffs contended that they were not bound by the stipulation against liens in the contract between Lit and Moore & Co., but that there was a later verbal contract between the latter and the Locust Realty Company under which materials were furnished by them. The trial judge held that the plaintiffs were not entitled to recover, and directed a verdict for defendants. He gave no reason for his

The decree is reversed and the injunction is dissolved, each party to pay the costs which they respectively incurred in the court below, and the appellee to pay the costs of this appeal.

(232 Pa. 123)

FELIN et al. v. LOCUST REALTY CO., Inc., conclusion and filed no opinion. In Pennock

et al.

(Supreme Court of Pennsylvania. May 23,

1911.)

MECHANICS' LIENS (§ 103*)

STIPULATION

AGAINST LIENS-SUBCONTRACTORS.

A subcontractor is bound by stipulation in contract between the owner and contractor against liens, and is not relieved because the property was conveyed during the construction of the building, and before the contract between himself and the contractor was made, nor because the plans submitted to him showed the name of the new owner, where the contract was indexed in the prothonotary's office in the name of the contractor, as provided by Act June 4, 1901 (P. L. 440) § 18.

[Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. § 135; Dec. Dig. § 103.*] Appeal from Court of Common Pleas, Philadelphia County.

Action by Charles F. Felin and others, trading as Charles F. Felin & Co., against the Locust Realty Company, Incorporated, and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

v. Realty Company, 224 Pa. 437, 73 Atl. 930, the validity of a mechanic's lien filed by another subcontractor in the same operation as that which is here in question was involved. It was there held that the subcontractor was bound by the stipulation against liens contained in the original contract, and that he was not relieved by the fact that the property had been conveyed to another party during the construction of the building and before the contract with the subcontractor was made. Our Brother Elkin, speaking for the court, there said: "In the case at bar there was no new contract. The building was erected from the beginning to completion under the original contract. The rights and

duties of the parties were fixed by that contract. The materials and labor were furnished under that contract. The notice as to the waiver of liens filed of record bound every one who furnished materials or labor

under that contract."

In the present case, unless there was eviArgued before FELL, C. J., and MESTRE- dence of a new contract sufficient to be subZAT, POTTER, STEWART, and MOSCH-mitted to the jury, the trial judge was right ZISKER, JJ.

Wayne P. Rambo and Ormond Rambo, for appellants. Preston K. Erdman and Charles L. Lockwood, for appellee Locust Realty Co. D. Howard Evans and Henry P. Brown, for appellee Moore & Co.

POTTER, J. In this action, which was a scire facias upon mechanic's lien, the only defense set up was the fact that the contractor, Moore & Co., a corporation, by its agreement duly executed and filed in the office of the prothonotary, had stipulated that

in giving binding instructions for the defendants. It is not suggested that there was a new express contract; but it is argued that one may be inferred from the circumstances. We can see nothing in the evidence in this case to distinguish it upon its facts from the principle upon which the decision in Pennock v. Realty Company, supra, was based. It appears from the undisputed evidence that the building was completed in accordance with the terms, and for the price agreed upon, in the original contract with Lit. Counsel for appellants urge that in the plans

Pa.)

HUEY v. CHRIST

159

and specifications submitted to them the "The plaintiff claims $19,604.40 of the debuildings were described as the property of the Locust Realty Company, and it is suggested that, if the plaintiffs had examined the mechanic's lien docket, they would have found no contract with that company on file or indexed in its name. But in section 18 of the act of June 4, 1901 (P. L. 440), it is provided that "the prothonotary shall enter it (the contract) in the judgment index in the name of the contractor," in order to bind subcontractors. Appellants, as subcontractors, made their contract with Moore & Co., the original contractor, and were bound to search against it. If they had done so, they would have found the contract for the erection of the building upon which they were asked to estimate; and, further, that it contained the stipulation that no liens should be filed against the property.

It becomes unnecessary to consider the question of the constitutionality of the statute, which was raised by counsel for the defendants. From the discussions in the opinions of this court in Vulcanite Portland Cement Co. v. Allison, 220 Pa. 382, 69 Atl. 855, and in Taylor Lumber Co. v. Carnegie Institute, 225 Pa. 486, 74 Atl. 357, it appears, in substance, that the mechanic's lien act of June 4, 1901, in so far as it is not clearly divergent from, and an advance upon, the old law, is valid and must be sustained. It cannot be fairly contended in the present case that the lien under consideration falls under any of the provisions of the statute which change or add to the mechanic's lien law, as it was prior to 1901.

fendant. It is conceded that the defense set up is good to the extent of $13,713.28. This last-mentioned amount is made up of $1,851.78, which it is averred has been paid by the defendant on behalf of the plaintiff in satisfaction of sundry bills enumerated in a schedule annexed to the affidavit of defense, and of $11,851.60, which constitutes half of the sum paid by the defendant in satisfaction of the debt secured to the Cosmos Building & Loan Association by a mortgage on No. 1209 Market street, Philadelphia. Against the remainder of the plaintiff's demand, viz., $5,891.12, the defendant sets up by way of defense counterclaims aggregating $11,521.17, which may be itemized as follows: (1) Interest on half of the amounts advanced by defendant for interest, dues, etc., on the Cosmos Building & Loan Association mortgage secured on No. 1209 Market street, $4,134.48; (2) half of the amount advanced by the defendant for premiums on fire insurance policies pledged to holders of the mortgages secured on No. 1209 Market street, $1,934.75; (3) interest on half of the amount advanced by the defendant for said insurance premiums, $301.89; (4) half of amounts advanced for taxes, interest, and in reduction of the mortgage debt on Cape May lots, $2,539.12; (5) interest on half of the said advances on Cape May lots, $513.93; (6) dividends on 122 shares of the stock of the Philadelphia Rye Whisky Distilling Company collected by plaintiff, $2,078.

"Without going into a discussion of the general subject of the right of a partner or The assignments of error are overruled, a tenant in common to insure the property and the judgment is affirmed.

(232 Pa. 131)

HUEY v. CHRIST.

(Supreme Court of Pennsylvania. May 23,
1911.)

PARTNERSHIP ($ 304*)-ACCOUNTING-RIGHTS
OF SURVIVING PARTNER.

In accounting between the administrator of the deceased partner and the surviving partner, the latter is entitled to credit for money paid in renewal of insurance policies on properties mortgaged in securing the joint bond of the partners, for payment of taxes, interest on the mortgage, and payments in reduction thereof, and to interest on such advances.

in which he is interested, and demand from his copartner or cotenant reimbursement to the extent of the latter's proportionate part of the outlay, it is sufficient to say that in our opinion the right of the defendant to insure No. 1209 Market street at the common expense of the plaintiff and himself is quite clear. When Mr. Huey died, the property was subject to the payment of two mortgage debts. The bonds which had been given to the mortgagees bound both him and the defendant, and provided that they should keep the property insured in a specified amount for the benefit of the mortgagees. The failure of the surviving obligor to perform this condition would have resulted in a demand for the repayment of the principal of the mortgage debts, and, in default thereof, the foreclosure of the mortgages. Had Mr. Huey lived, there can be no doubt that the defendant might have protected their joint bond by performing its condition, and would have had the right, had he done so, to call on his co-obligor for the return of half of his outlay in the matter. The death of Mr. Huey Audenried, J., filed the following opinion did not deprive the defendant of that right. in the court below: Moreover, the agreement made on April 28,

[Ed. Note. For other cases, see Partnership, Cent. Dig. §§ 701, 702; Dec. Dig. § 304.*] Appeal from Court of Common Pleas, Philadelphia County.

Action by Arthur T. Huey, administrator of the estate of William H. Huey, against Amos H. Christ. From an order discharging rule for judgment for want of a sufficient affidavit of defense, plaintiff appeals.

Affirmed.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

1903, between the various parties interested in No. 1209 Market street, contemplated the continuance of the loans secured thereon by existing mortgages. This could not have been effected except by the renewal from time to time of the fire insurance policies pledged to secure these loans. It was therefore absolutely essential to the carrying out of the purposes of that agreement that the insurance should be kept alive, and we think that by necessary implication the defendant was authorized to do so at the expense of the plaintiff to the extent of one-half of its cost.

"The lots at Cape May, N. J., formed originally part of the assets of the firm of Huey & Christ. They were expressly excluded from the purchase which the defendant made of certain of the assets of that firm, and continued to be copartnership property. It was the right of the defendant, as surviving partner, to manage and dispose of the remaining assets of the firm, and for one-half of his necessary expenditures in preserving the common property pending sale he has a right to reimbursement against the plaintiff, as administrator of his deceased partner. The necessity of the expenditures made by him for the payment of taxes and interest cannot be questioned; nor have we any doubt, under the facts stated by the affidavit of defense, that the payment made by the defendant in reduction of the mortgage indebtedness charged on this property was equally necessary. There is nothing in the fifth clause in the agreement of April 28, |

1903, to justify the contention that the defendant may not claim reimbursement for his outlays in this behalf before a sale o the Cape May lots has been effected.

"The only remaining question relates to the defendant's counterclaims for interes: on his advances made for the preservation of the partnership properties in the payment of

interest, insurance premiums and mortgage debts. This requires no extended discussion. As pointed out above, the defendant had the right to make these payments. Half of them were for the benefit of the estate of his deceased partner, now represented by the plaintiff. The general rule is that on money advanced for the use of another interest at the lawful rate is payable from the time when the advance is made. A contract to pay interest is in such case implied by the law. Sims v. Willing, 8 Serg. & R. 103; Harris v. Mercur, 202 Pa. 318, 51 Atl. 971. This rule was not questioned by the Supreme Court in the case of Guthrie v. Baton, 227 Pa. 339, 76 Atl. 71, cited by the plaintiff. All that was decided in that case was that under the agreement then under consideration interest could not be included in the computation of the 'original cost' of certain land in which the parties had been dealing. There is nothing in the agreement of April 28, 1903, that excludes from the operation of the general rule above laid down any of the items of outlay on which the defendant claims interest.

"We are of opinion that, with the exception of the sixth, all of the counterclaims above enumerated constitute valid defenses to the plaintiff's claim, and that since their amount exceeds the sum of $5,891.12, for which judgment is asked, the plaintiff's rules must be discharged."

Argued before FELL, C. J., and MESTREZAT, POTTER, STEWART, and MOSCHZISKER, JJ.

Maurice Bower Saul, for appellant. Thos. D. McGlathery and H. Le Grand Ensign, for appellee.

PER CURIAM. The order of the court discharging the rule for judgment is affirmed on the opinion of Judge Audenreid.

FRAZIER v. W. H. H. SLACK & BRO.

profit, and held that the latter was taxable. 6. TAXATION (353*)-PRESUMPTIONS-PER- It is not necessary to inquire as to the justFORMANCE OF STATUTORY DUTIES. In the absence of any finding on the sub-ness of the comparison drawn by the plainject, the court will presume that listers, adopt- tiff. In the case cited there was a charter ing the quadrennial valuation in determining exemption from all taxation, and it is well the valuation of property for taxation, found that the owner's failure to include the property in his inventory was not willful, so that the right to double the ascertained value, given by P. S. 561, for the willful failure to make an

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes