Commonwealth v. Reinhold.

The same principle applies where a constituent offense is set forth in a separate count. In Harman v. Commonwealth, 12 S. & R. 69, it was held that a count for a rape may be joined in the same indictment with one for an assault and battery with intent to ravish; but, if the defendant be found guilty generally, he can be sentenced only on the count for a rape." And in Commonwealth v. Gouger, 21 Sup. 217, it was said: "It is well settled that it cannot be objected in error, or on demurrer, or in arrest of judgment, that two or more offenses of the same nature on which the same or similar judgment may be given are contained in different counts of the same indictment."

I am not sure that I understand the fifth and sixth reasons assigned. It is admitted that the evidence of the prosecutrix as to what she said immediately after the commission of the offense, and also that of John F. Weaver and Margaret Speece as to what she said to them at that time, was admissible for at least one purpose. It was a test of her accuracy as well as of the veracity of the testimony given by her. There is nothing to show that it was admitted or used for any other purpose. In Wharton's Criminal Law, Vol. 1, pl. 566, 10th Ed., it is said: "In prosecutions for rape, when the party injured is a witness, it is admissible to prove that she made complaint of the injury while it was recent, but the particulars of her complaint have been held not to be evidence, except to corroborate her testimony when attacked. They are admittedly simple as part of the proof of the corpus delicti, and in this view the reply as well as the statement, when the two cannot be severed, is received." But, as a matter of fact, the record shows that the testimony of Mr. Weaver and Mrs. Speece was not objected to by the defendant, and surely the prosecutrix had the right to tell, not only what occurred, but what she did and said immediately thereafter. Their evidence was in corroboration of the story told by her, and to support its truth.

The seventh and eighth reasons are without merit. On page 12 of the Notes of Testimony, John F. Weaver, without objection, testified: "Then, when I opened the door, Reinhold came out the alley (meaning the alley of the house wherein the rape was alleged to have been committed), pale as anybody could be, and staggering,-pale and scared." Mrs. Mary Isburn testified (p. 22): "I seen Reinhold coming out of the alley. He was pale and he was white and he shook." Harry Steiger testified (p. 27): "I seen him coming out of the alley, sure thing, and as pale as death." In the face of this testimony, the defendant's counsel presented the second point, which reads: "The statements of witnesses that he was pale or looked frightened are irrelevant and should not be considered by the jury." The point was refused. Suppose there had been evidence presented that there were scratches on Reinhold's face, would not his appearance and all other similar facts have been admissible in evidence, at least to corroborate the prosecutrix if for no other purpose? In Commonwealth v. McManiman, 27 Sup. 304, it was said: "Evidence of the conduct of one accused of a crime at the time of his arrest is competent to show consciousness of guilt." How much more important are his conduct and appearance at or about

Commonwealth v. Reinhold.

the time of the commission of the offense and on the ground, both for that purpose and, in a case of this character, to support the good faith of the charge made against him.

The ninth reason relates to the answer to the third point. The point was: Upon the evidence of good character alone, the jury may return a verdict of not guilty." The answer was: "That point is affirmed. The jury have the right to do that, if they find that this man had a good character. Of course, even if he had a good character prior to the commission of this offense, if you find beyond a reasonable doubt that he did actually commit the offense, his good character would not save him. But, if you believe that he has established a good character, and that a man of such a character as he has established would not commit this offense, then, of course, upon that evidence, you may find a verdict of not guilty." But, in addition, in the General Charge it was said: "He has presented before you the evidence of eight persons, who testified to his good reputation for chastity prior to this charge having been made against him. Evidence of good reputation is always admissible for the defendant in a criminal case. It is to we weighed and considered in connection with all the other evidence. It may of itself, in some instances, create the reasonable doubt which would entitle the accused to an acquittal. When you are considering this evidence which he has presented and giving it the weight which under the law as I have stated it is entitled to, you must also consider the evidence of three witnesses, who were called for the Commonwealth, who testified that his reputation for chastity was not good in that neighborhood." It seems to me but a waste of time and effort to discuss this proposition any further.

In Commonwealth v. Eckerd, 174 Pa. 137, practically the same complaint was made that is advanced in this case. The Judge in the Court below charged: "Where the jury is satisfied beyond a reasonable doubt under all the evidence that the defendant is guilty, evidence of previous good character is not to overcome the conclusion which follows from that view of the case." The Supreme Court held that "this was a correct statement of the law." To the same effect are Commonwealth v. House, 36 Sup. 363; Commonwealth v. Harmon, 199 Pa. 521; and a number of other cases.

No request was made for instructions on the point raised by the tenth reason, and no depositions have been presented to sustain the eleventh reason. It is not necessary, therefore, to discuss them as serious propositions.

I think the case was fairly and properly tried, and that the defendant has advanced no valid reason which would warrant this Court in setting aside the finding of the jury.

The rule for a new trial is, therefore, discharged.

Rule discharged.

Court of Common Pleas of Lancaster County

Snyder, Sener and Reese v. Emil F. Bordt.

Mechanics' liens· Time of filing - Notice Contractors and subcontractors-Change of ownership-Addition to building-Act of

June 4, 1901, P. L. 431.

Where a contractor who had erected a row of houses for sale, sold a house and garage to the defendant and after his deed was recorded but before he moved in agreed to build for him a substantial addition to the garage, and the plaintiffs who had done the brick work on the other buildings also did the brick work on the addition to the garage, they are sub-contractors and cannot file a mechanics' lien against the defendant without giving him written notice of such intention as required by the Act of June 4, 1901, nor can such lien be filed more than three months after the completion of the work.

When the facts with regard to a building operation are admitted, any controversy as to the character of the structure is for the court.

As neither the owner nor the contractor did anything to mislead the plaintiffs, and the owner's deed was on record, they cannot invoke Section 4 of the Act of 1901 to make the real owner liable "as if he himself had made the contract."

66

The Act of 1901 provides that a substantial addition to a structure shall be treated as a new erection."

Rule for judgment for defendant n. o. v. February Term, 1919, No. 63.

T. Roberts Appel, for rule.

F. Lyman Windolph, contra.

January 15, 1921. Opinion by LANDIS, P. J.

There is no conflict concerning the facts of this case, and the proposition is solely whether, under the law, the plaintiffs are entitled to maintain their verdict.

It appears that a contractor, by the name of Henry B. Hook, erected a row of houses on North Pine Street, Lancaster City. The plaintiffs, who are bricklayers, did the brick-work upon them. On the lot on which was erected the corner house, No. 700 Pine Street, a garage was built, about twenty feet in front by fifty feet in depth. The lot, with the house and garage, was sold on February 14, 1918, by Hook to Emil F. Bordt. The deed was at once placed on record; but, as the house was not completed, Bordt did not move into it until some time later. After the purchase, he asked Hook whether he would build an addition for him to the garage. On March 4, 1918, Hook submitted a written proposal for an addition, eight feet by fifty-two feet, and eighteen feet high. The contract price was to be $650.00. The proposal was accepted by parol and Hook proceeded with the work. and his men tore out the east wall of the garage, put in foundations, and upon them the plaintiffs, at the instance of Hook, built the brickwork. All the old material that could be used was used, and in addition Hook procured what was necessary to finish the garage. The work for which this claim is made was started by the plaintiffs on March 22, and, so far as they were concerned, was finished on March 30, 1918. As finished, there are three large double doors in the garage, while there were only two in the original structure. Hook did not tell the plaintiffs VOL. XXXVII, No. 79

Snyder, Sener and Reese v. Emil F. Bordt.

that he had sold the house, nor did the defendant inform them that he had purchased it, and they made no inquiries concerning the ownership. At the time they began the work, Hook's automobile was in the garage. One of the plaintiffs testified that he saw Mr. Bordt around there four or five times, but that Bordt did not give any instructions concerning the work and did not in any way interfere with it. The agreement between Hook and the plaintiffs was, that they should "go and do the job and we will do it day-work." Bordt was engaged at sheet metal work and tin sheet and slag roofing. He did considerable work for Hook, and on May 19, 1918, they made a settlement, Bordt giving a check for the balance ascertained to be due. It is admitted that the plaintiffs gave Bordt no notice of their intention to file a lien, nor did they make any demand of him prior to the filing of the lien. They, however, on August 23, 1918, filed a Mechanics' Lien against the house and lot on the northwest corner of North Pine and West New Streets, in the City of Lancaster, Pennsylvania, and it was therein stated that the structure was "a two-story brick dwelling house and brick garage, known as No. 700 on said North Pine Street;" that "said brick dwelling house and brick garage are both owned by the defendant and form parts of a single business and residential plant." The nature and kind of work done, as claimed in the lien, was the erection of a brick garage, or a substantial addition thereto, and the amount claimed to be due is $101.40. Under this state of facts, a verdict was rendered in favor of the plaintiffs for $116.60, and a rule was then granted to show cause why judgment should not be entered in favor of the defendant non obstante veredicto.

In section 2 of the Mechanics' Lien Act of June 4, 1901, P. L. 431, it is provided that "every structure or other improvement, and the curtilage appurtenant thereto, shall be subject to a lien for the payment of all debts due to the contractor or sub-contractor in the erection and construction or removal thereof, in the addition thereto, and in the alteration and repair thereof. . . But no lien shall be allowed for labor or materials furnished for purely public purposes. . . . Nor shall any claim for alterations or repairs. . . be valid, unless it be for a sum exceeding one hundred (dollars); and, in the case of a subcontractor, unless, also, written notice of an intention to file a claim therefor, if the amount due be not paid, shall have been given to the owners or some one of them, or for him to an adult member of his family or the family with which he resides, or to his architect, agent, manager, or executive or principal officer, on or before (the) day the claimant completed his work or furnished the last of his materials."

It is the law that, when the facts with regard to a building operation are admitted, the point in controversy as to the character of the structure must be determined by the Court. See Warren v. Freeman, 187 Pa. 455. That being so, in this case our first inquiry is: Was the improvement as detailed a new building, or did it fall within the class of alterations and repairs? There is no provision in the Act of 1901 which requires notice of an intention to file a lien where the contract was made with the owner; but the law is different as to sub-contractors.

Snyder, Sener and Reese v. Emil F. Bordt.

It is conceded in this case that no written notice of an intention to file a lien was ever given to the defendant or to any one for him, and it follows that, if the plaintiffs were sub-contractors or the claim was for alterations or repairs, they cannot recover.

The plaintiffs, however, invoke the fourth section of the Act of 1901, which declares that " any owner. . . who shall knowingly suffer or permit any person, acting as if he were the owner, to make a contract for which a claim could be filed, without objecting thereto at the time, shall be treated as ratifying the act of such person acting as if he were the owner, and the claim may be filed against the real owner, with the same effect (as) if he himself had made the contract. Ratification shall also be presumed, and a like subjection to lien shall follow, if the owner, . . subsequently learning of such contract or of work being done upon his property, shall not, within ten days thereafter, repudiate the same, either by notice to the contractor and sub-contractors or by posting such repudiation on the most public part of the structure or other improvement." It is true, under this section, that the real owner who purposely consents or wilfully suffers or permits some other person to falsely represent that he is the owner, or, acting as if he were the owner, to make a contract for improvement to his real estate, becomes liable with the same effect as if he had made the contract himself. Cappelletty v. West Warren Real Estate Co., 40 C. C. R. 247. But it is held, and we think rightly, that these conditions only apply when the legal owner knowingly permits such erection. A requirement for the enforcement of the provisions of the Act is, that the owner shall be guilty of some inducing act, or of silence, amounting to legal fraud on his part. Meile v. McCuean, 18 Dist. Rep. 675. The Act applies only where the legal owner stands by and allows another person to pretend to be the owner, and thereby deceives those who furnish labor and material for the improvement of his property. Panner v. Staub, 18 Dist. Rep. 676. If, however, neither the owner nor one with whom the contract is made does anything to convey the impression that the land belongs to the contracting party, no lien can be filed. Land Title and Trust Co. v. Bittle, 11 Del. 342. It would appear, therefore, that this section has no bearing upon the present case. Hook built the row of houses for sale, and the plaintiffs had knowledge of this. He sold this property to the defendant, and made a deed for the same, which was immediately placed upon the record. Inquiry by the plaintiffs would fully have informed them of this situation. They, however, failed to inquire, and the resulting injury, we think, is to be charged to themselves. They were not misled by either Bordt or Hook, for neither of these parties was guilty of actual or constructive fraud. Bordt made a contract, as he had a right to do, with Hook, and Hook did the work and was paid for it. There mere fact that Hook had owned the ground and had erected the row of houses was not sufficient to lead the plaintiffs to believe that he had not parted with this house, when they made the contract for the laying of the brick-work on the addition. If they did not inform themselves of the true condition, and were not deceived by any one concerning it, they did the work at their own risk.