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GINGRICH v. DISSINGER ET UX. (07/25/57)

July 25, 1957

GINGRICH
v.
DISSINGER ET UX., APPELLANTS.



Appeal, No. 55, Oct. T., 1957, from judgment of Court of Common Pleas of Lebanon County, March T., 1953, M.L.D. (G), page 418, No. 238, in case of Hiester J. Gingrich v. Clode R. Dissinger et ux. Judgment affirmed.

COUNSEL

James R. Koller, with him Robert E. Siegrist, and Siegrist, Koller & Siegrist, for appellants.

Calvin D. Spitler, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Woodside

[ 184 Pa. Super. Page 309]

OPINION BY WOODSIDE, J.

This is an appeal from a judgment against defendants Clode and Martha Dissinger upon an action of scire facias sur mechanic's lien. Defendants, husband and wife, were owners by the entireties of a property in the City of Lebanon upon which Hiester J. Gingrich, the plaintiff did plumbing work during the construction of a home. The case was tried before a jury which returned a verdict in favor of the plaintiff in the amount of $1724.46.

The verdict of the jury would establish that the plaintiff and the defendant, Clode Dissinger, entered into an independent contract. The plaintiff was, therefore, not a sub-contractor of Earl Jordan, the general contractor who had entered into a stipulation against the filing of mechanics' liens. The verdict would also establish that plaintiff did not complete the plumbing work because of the conduct of defendants and their attorney.

[ 184 Pa. Super. Page 310]

In order for the jury to return a verdict for the plaintiff, it had to find that defendant Martha Dissinger ratified the contract made between the plaintiff and her husband. The question before us is whether the facts of this case, and the presumption of ratification contained in § 4 of the Mechanics' Lien Act of June 4, 1901, P.L. 431, 49 PS § 28, support this finding. Defendants claim that there was insufficient evidence of ratification, and that this section of the act cannot apply to the facts of this case.

Section 4 of the Mechanics' Lien Act provides as follows: "Any owner, not being a committee, guardian, or trustee, as aforesaid, 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 if he himself had made the contract. Ratification shall also be presumed, and like subjection to lien shall follow, if the owner, not being a committee, guardian or trustee, as aforesaid, 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."

In order to bring the wife within this section of the act, plaintiff called her as his witness upon cross-examination. She testified that she visited the construction site on Sundays; that she was informed that plaintiff was doing the plumbing work; that her husband had told her that he was at plaintiff's place of business; and that she did ...


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