contractors could not escape liability because the city had changed the method. And there was some evidence tending to establish this part of plaintiff's case. It seems to be made more prominent here than in the court below. Appellants' seventh point, however, fairly embraces it, and the refusal of the court to unqualifiedly affirm it would, if another trial could be ordered, be ground for reversal.

But there is another point made by appellees to sustain their judgment which, it seems to us, is conclusive against the appellant. The evidence shows, without dispute, that the Bushkill street sewer in front of the church, between Second and Third streets, was finished by defendants about the 12th of June following the date of the contract, and that outlet connections were soon after made with it. Further, that on August 12th following it was fully completed, and an ordinance was adopted regulating the connections to be made with it by residents, and permits were issued to those entitled to use it. The sewer had been in possession of and in actual use by the city for more than four months before the damage was done the church. The street, the surface of which was twenty feet above the sewer, had been repaired, and all traces of construction 576 at this point had disappeared. Clearly the city had in fact resumed fuli possession of this part of it. That a formal ordinance accepting the whole of the work done in the city under the contract was only adopted October 10, 1891, subject to the conditions of the contract, does not affect the question we are considering. This is not a contention between the city and its contractors, but between a third party and the contractors. It was the defendants' duty to construct the sewer according to their contract; that is, their contract duty, and they were answerable to the city for any breach of it, under certain circumstances, even after the work was taken off their hands. But the injury was caused after the completion of this part of the work, and after it had been in full use and possession by the city for months. An action of this character in this state, against the contractor, rests on the principle that, pending the performance of the work, he is in the place of his employer: Reynolds v. Braithwaite, 131 Pa. St. 416. The Pennsylvania rule, deducible from all the cases, is, that if the employer, at the time he resumes possession of the work, from an independent contractor, knew, or ought to have known, or from a careful examination could have known,

that there was any defect in the work, he is responsible for any injury caused to a third person by defective construction. Whatever defects there were in this work, if any, must have been known to the city when they took possession in August, and not only made connection with other sewers for outlet, but with the properties of residents for inlet.

Their engineer, especially qualified, every day during its construction saw the material used and the character of the work; besides, gave special directions as to how it should be done. In Curtin v. Somerset, 140 Pa. St. 70, 23 Am. St. Rep. 220, the contractor for a hotel building had completed his contract, and it was accepted by the architect and building committee of the hotel company. Four days afterward, when a number of the guests of the hotel, among them the plaintiff, were on the porch witnessing a display of fireworks, one of the girders supporting the porch gave way, and plaintiff was seriously injured. He brought suit for damages against the contractor, alleging negligence, in that the girder was of hemlock, an unsuitable wood to sustain weight; that it was smaller in size than the contract specification called for; that it was cross-grained, besides had been 577 notched with an axe. This court held that an independent contractor who builds a house, bridge, or does any other work owes no duty to third parties after the work is taken off his hands by the owner. The rule laid down in Wharton on Negligence, sections 438 and 439, is decided to be the law: "There must be a causal connection between the negligence and the hurt; and such causal connection is interrupted by the interposition between the negligence and the hurt of any independent human agency. . . . Thus a contractor is employed by a city to build a bridge, and after he has finished his work, and it has been accepted by the city, a traveler is hurt when passing over it by a defect caused by the contractor's negligence. Now, the contractor may be liable on his contract to the city for his negligence, but he is not liable to the traveler; .... because, between the traveler and contractor intervened the city, an independent, responsible agent, breaking the causal connection."

In the case cited it was held by this court that the court below should have instructed the jury that, as the accident happened after the work had been accepted, and the owner had resumed possession, there could be no recovery by a third party against the contractor for negligence. The Eng

lish cases, as well as those in this state, were noticed, and it was decided that none of them were in conflict with this principle. The "causal connection," as Mr. Wharton terms it, is broken, not by a resolution or ordinance, but by a fact. Has the contractor abandoned his temporary possession and the owner resumed his permanent one? If 80, the answerability of the contractor for breach of duty is to the owner, under his contract, not to third parties, for as to them he no longer owes any duty. He no longer stands in place of the owner, for the latter has resumed his relation to the public.

On this ground alone the defendants were entitled to a peremptory instruction in their favor; and, while the instructions on the first question were not as full and explicit as appellants had a right to ask, no harm was done them, for they, on the whole evidence, were not entitled to a verdict.

The judgment is affirmed, and appeal dismissed at costs of appellants.

STERRETT, C. J., dissented.

MASTER AND SERVANT-EMPLOYER'S LIABILITY TO THIRD PERSON FOR INDEPENDENT CONTRACTOR'S NEGLIGENCE.-An employer is liable for dam. age which ensues to another by reason of something having been done as a part of the work contracted for in consequence of the employer's interference in such work or any of its details: Davie v. Levy, 39 La. Ann. 551; 4 Am. St. Rep. 225, and note; Linnehan v. Rollins, 137 Mass. 123; 50 Am. Rep. 287, and note; Larson v. Metropolitan etc. Ry. Co., 110 Mo. 234; 33 Am. St. Rep. 439, and note; Meier v. Morgan, 82 Wis. 289; 33 Am. St. Rep. 39; but he is not responsible for the negligence of the contractor when the latter is given entire freedom in the use of means to accomplish a result: Roddy v. Missouri Pac. Ry. Co., 104 Mo. 234; 24 Am. St. Rep. 333, and note; Lancaster Ave. Imp. Co. v. Rhoads, 116 Pa. St. 377; 2 Am. St. Rep. 608, and note; Bennett v. Truebody, 66 Cal. 509; 56 Am. Rep. 117. This question will be found fully discussed in the notes to the following cases: Atlanta etc. R. R. Co. v. Kimberly, 27 Am. St. Rep. 241; City of Erie v. Caulkins, 27 Am. Rep. 647; Harrison v. Collins, 27 Am. Rep. 702; Stone v. Cheshire R. R. Corp., 51 Am. Dec. 200; and Blake v. Ferris, 55 Am. Dec. 318.

MCCOLLUM V. RIALE.

[168 PENNSYLVANIA STATE, 603.]

MECHANICS' LIENS. SECRET AGREEMENT AGAINST.-A materialman who furnishes material on the order of the record owner of land, without knowledge of a secret conveyance thereof to another, or of a verbal agreement between the vendor and purchaser that the former is to build a house on the land for the latter, and not to allow any mechanic's liens to be entered against it, is not bound by such conveyance or agree. ment, and is entitled to a mechanic's lien against the property.

ACTION by McCollum against Riale and Messenger to enforce a mechanic's lien for material furnished in the erection of a house. Judgment for the defendants, and the plaintiff appealed.

W. M. Stephens, for the appellant.

H. T. Ames and T. H. Hammond, for the appellee.

607 MCCOLLUM, J. Four-fifths of the materials for which this claim was filed were furnished on the order of Messenger while he was the apparent owner of the lot, and all of them except the transom door frames were furnished before the materialman was informed that Riale had any legal or equitable title to or interest in it. All the appearances were in accord with Messenger's representations, when he ordered the materials, that they were for a house he was building on his lot on Park avenue. His deed for the lot was on record, and there was no visible change in his possession of it. There was absolutely nothing discernible anywhere to suggest or in the remotest degree indicate any change in his relations to the property, or that in erecting a house upon it he was the representative or agent of another. In short, the record, the appearances, and Messenger's representations to the appellant united in presenting the case of an owner of a lot ordering the materials for and erecting a house 608 upon it. But it is urged that the appellant is not entitled to a lien for his claim because: 1. In August, 1889, Messenger verbally agreed with Riale to sell the lot to him, and that in pursuance of this agreement a deed of it was made and delivered to the latter on the 5th of October following; and 2. That soon after the agreement to sell the lot he verbally agreed with his vendee to build for him a house upon it, and "not to allow any lumberman's or mechanic's lien to be entered against it." The agreement in respect to the

erection of the house was not reduced to writing and signed until September 26, 1889, or six days after the materials were ordered, nor was any thing paid on the lot until that time.

The appellant, whilst conceding the principles enforced in Schroeder v. Galland, 134 Pa. St. 277, 19 Am. St. Rep. 691, and kindred cases, contends that upon the facts above recited he is entitled to a lien upon the building for materials furnished and used in its construction. In considering this contention it must be remembered that when Messenger ordered the materials for the house he was the owner of the lot and his title to it was shown by the record. Riale had then no enforceable equity or claim in or upon the lot because the verbal agreement gave him none, and he had done nothing in pursuance of it which prevented his vendor from successfully repudiating it. Messenger's possession of the lot when he commenced the erection of a house upon it was in accord with his title, and so were his representations that the materials he ordered were for a house he was building on his lot on Park avenue. What was there in the circumstances surrounding the transaction to suggest to the materialman the existence of an equitable interest or title in Riale, or any one else, or to put upon him the duty of further inquiry? Absolutely nothing. The case before us is therefore wholly unlike the cases relied on by the appellees, in which it is held that a subcontractor is bound by a stipulation against liens, in the contract between the owner and the principal contractor. In none of them is it held or suggested that a secret verbal agreement, such as is interposed here, will prevent or defeat a lien. They were cases in which the labor was done or the materials were furnished on the order of or under a contract with the principal contractor who was known as such, not, as in this case, on the order of, or under a contract with, 609 the apparent owner. In them the subcontractor was chargeable with knowledge of the contract between the owner and the principal contractor, because he had an opportunity, and it was his duty to ascertain its terms before performing labor or furnishing materials on the credit of the building. In this case no such opportunity was presented or duty imposed. It is in accordance with equity that the subcontractor should be bound by the terms of the contract between the principal contractor and the owner, in the former case, and against it to hold him bound by the terms of the secret agreement relied on in this case to defeat the claim of the appellant.

AM. ST. REP., VOL. XLIII. -52