CROSKEY and Another against CORYELL and Another, 2 Whart. 223

The opinion of the court was "delivered by Kennedy, J. All the errors assigned here seem to grow out of the construction put by the judge of the District Court upon the agreement of the 16th of May, 1832, which was given in evidence on the trial of the cause. If the agreement were susceptible of no other construction than that given by the judge in his charge to the jury, we are not prepared to say that his instruction on the other matters excepted to, could have been considered erroneous.

We however think that his honour erred in directing the jury, that if they should be of opinion from the evidence, that the two last items, consisting of panel boards or plank, charged by the plaintiffs in their books on the 5th and 7th of February, 1833, and furnished by them for window-shutters to the house in question, were not actually used for that or any other purpose in the construction thereof, the plaintiffs had failed to file their claim within the time prescribed by law, for the materials furnished by them and actually used in building of the house; and having thus lost their lien, the jury ought to find for the defendants.

That materials of the like kind with those charged in the two last items, were furnished by the plaintiffs and used in the construction of the house of the defendant is not denied. But then it is contended that the house is not chargeable with the materials mentioned in these two items; because according to the terms of the agreement, unless they be the identical materials that were actually used in the construction of the house, they were not to become a lien thereon. And this, it seems, was the opinion entertained by the judge of the District Court, and by him delivered in his charge to the jury.

Now although that part of the agreement which declares “ that no lien shall be filed against, or claim made by either party thereto against either of the other parties for any labour or materials furnished for or to either of the above mentioned buildings, except against the party or for the building, which each shall have agreed to erect, and for such labour and materials only as shall be contained in such building respectively,” might very well admit of this construction; yet when the subject-matter of the agreement, and the various occupations and employments of the several parties thereto, together with the other provisions contained therein, are all taken into view, we are inclined to think that this could not have been intended by the parties; and if it were not, it certainly ought not to prevail.

By the agreement, it appears that the parties, who were nine in number, and of the various occupations usually employed in the building of houses,, such as material-men and mechanics, had agreed to erect within the course of a year thereafter, nine buildings, that is, a house for each one of the parties severally, adjoining to each other on the north side of Market street in this city, between Schuylkill 6th and 7th streets, each building to be “ a substantial brick store, or a store and dwelling, twenty feet front, and not less than forty-five feet deep, of uniform materials and appearance in front, and of four stories high.” Some of the 'parties to the agreement being mechanics, whose labour was requisite in the construction of the buildings, each was to do" all that kind of work necessary to be done in his particular art; and others being material-men and lumber-men, whose business it was, to furnish the lumber and materials necessary for the erection, and completion of the buildings, each of them was to provide and furnish in his particular line of business, the lumber and materials wanting; and accordingly it was agreed, among other things, “ that each subscribing party thereto should furnish to the other subscribing parties thereto, the following materials and workmanship necessary for the construction of each and all the buildings, &e. at the regular times required for their application and use in the construction of said buildings, within the year, and at the following prices for each to each of the others respectively, &c.” And then follows the prices at which each one in his particular line of business was to do his work, or to provide and furnish the requisite lumber and materials.

Now- it is evident from the whole tenor of the agreement, that it was the intent of the parties, that the nine buildings should all be carried up and built at the same time.

And one of th5 parties, being a briekmaker, was to provide and furnish brick in the progress of the building thereof, as they should be wanted; and another of the parties, being a bricklayer, was to lay all the brick, and to be employed in carrying up the front walls of the nine buildings together, and at the'same time; and a third of the parties, being a lime merchant or burner, was to furnish the lime as it should be wanted for the purpose of making mortar to lay the bricks with.

It was not expected, nor could it well be, that the same cartload of brick or lime would be put into the same building, nor in any given-number of them. The brick thus brought, from the nature of the work, the time and manner of doing it, and the same person having to lay all the brick, would be almost of necessity distributed and used in the building of two, three, or more of the contiguous buildings, if not occasionally among the whole.

The bricklayer, who has his hands employed under him and at work in laying brick at the same time throughout the whole line of the front of the nine houses, says to the party who is the brickmaker, you must furnish me with so many thousand bricks every day for the front of the nine buildings, until it is finished; the brickmaker of course is bound to do so, and accordingly does it; but having done it, it is obvious that it will not be very practicable for him, under such an arrangement, to know or to prove in what particular building or number of the nine, any one thousand of the brick so furnished on the same day, were used; and much less would it be practicable to show the particular number and proportion of the thousand brick used in each house.

But as the same quantity and quality of brick were to be used in the front of each building, it would be sufficient, in order that each house might not beicharged with more than the "actual quantity used in it, winch was the only object that the parties could have had in view in introducing into the agreement the clause in question, to charge each building with one ninth of the brick so furnished from time to time as they were delivered.

And'this, according to the evidence, seems to have been the rule that was adopted by the plaintiffs; whose business it was under the agreement, to provide and furnish the lumber and materials necessary for the carpenter work of the buildings.

And certainly there does not appear to be any good reason why it would not be quite as impracticable for them to ascertain in what particular house, or number of the nine houses, any part of the lumber furnished by them was actually used, as it would be for the brickmaker to establish in which of the buildings, whether in one" or all of them, the brick furnished by him on any one day, had been actually used.

Suppose the party who is the carpenter, and bound by the -agreement to do the carpenter work of the nine buildings, calls upon the plaintiffs and says to them: I want lumber or materials of a particular description for making the window-sash or the window-shutters that are to be used in the front of the nine buildings, where the work and materials were to be precisely the same in each, so that the whole when finished, might exhibit in front on Market street, a perfect uniformity of appearance.

It becomes the duty of the plaintiff, upon such request, to furnish the materials for this purpose ; and if a part of the requisite quantity only can be supplied on the same day, but still as much as is wanted for the time being, and to keep the hands of the carpenter continuously employed, it is not likely that even the carpenter himself would be able to tell, after the whole work was finished, in which of the buildings, or whether in all or only in a part; the materials so furnished on that day -had been used ; and certainly much less able would the plaintiffs be to do so.

Charging therefore each building with its due proportion of the lumber and materials so furnished, arid with no more in amount than has been actually used in the construction of it, seems to be not only just and equitable, according to the tenor pf the agreement, but the only practicable rule that can be adopted and applied to the case.

It cannot be pretended that it was not the intent of the parties, that each one should have a lien against each building separately, excepting his own, for the price of the work and labour performed by him in the construction of it, or for the lumber and materials actually used in the execution thereof; and hence as long as the rule adopted and applied does no more than charge this amount, it is clear that no injustice is produced by it.

Nothing more seems to be done by the application of the rule here; but what seems to make it the rule which the parties by their agreement must have intended, is, that it is almost the . only practicable one which the plaintiffs had it in their power to resort to, and apply to their case.

The subject-matter of the contract, the manner in which the parties by their agreement' contemplated it should be executed, and their various occupations all tend to show that the clause in the agreement, which declares “ that no lien shall be filed, and claim made by either party thereto against either of the other parties, &c. except for suck labour and materials only, as shall be contained in such building,” was intended merely to protect each one of the parties and his buildings, from being charged with more labour and materials, than should be actually performed and used in the construction of it.

Besides, it is by no means clear that this construction is not in conformity with the literal meaning of the wor^s employed therein, for it is only by giving to the word “ such” immediately preceding the words “ labour and materials,” the meaning of the word “ same” that it can be said that this construction of the clause is not strictly a literal one.

But the word “ such,” although used sometimes to identify or denote the same thing previously mentioned, yet it is frequently used and intended to denote things of ike like kind; and taking it in this sense here, it renders our construction of the clause not only literal, but makes it comport with-what seems to have been the chief design of the parties. But if a doubt existed in this respect, the settlement made between the plaintiffs and N.

Jackson, one of the defendants to this suit, being then the owner of the building in question, on the 10th of January, 1833, ought to remove it; for though he, (Jackson,) made some objection at first, yet he agreed that the two- last items should be charged ; and he accordingly gave his note for the amount of the plaintiffs’ claim, including them. But according to the express terms of the agreement, neither he nor the building was to be charged therewith, unless such materials as are mentioned in these items, were contained in the building.

If he was properly chargeable with them, then the building was equally so. In closing the account, and by giving his note to the plaintiffs for an amount including these items, without even an allegation now that it was done through either fraud or mistake, he has- shown that according to their understanding of the agreement, these items were properly chargeable against himself as the owner then of the building, and of course against thé building itself.

For we have seen that the words of the agreement in regard to this are “ that no lien shall be filed or claim made by either party thereto against either of the other parties, tj-c. except for such labour and materials only as shall be contained in such buildings.” The judgment is reversed4 and a venire facias de novo awarded.