Vansciver v. Churchill

Citations

• 35 Pa. Super. 212
• 1908 Pa. Super. LEXIS 14

Syllabus

<p>Practice, C. P. — Trial—Continuance—Discretion of court — Appeals.</p> <p>The refusal to continue a cause is -within the discretion of the trial court, and if no abuse of discretion appears, such refusal is not assignable as error.</p> <p>Mechanic’s lien — Discharge of lien by entry of security — Pleading— Issue — Act of June 4,1901, sec. 25, P. L. 431.</p> <p>In proceedings under the Act of June 4, 1901, sec. 25, P. L. 431, providing for the discharge of a mechanic’s lien upon entering security, the issue to be tried is made by the lien filed, and the defense set up in the petition to enter security. In such a case a lien stands in place of a scire facias, as no writ of scire facias can issue after the discharge of the lien; the petition sets up the defense; therefore the case may be tried on the merits.</p> <p>In proceedings under the Act of June 4, 1901, sec. 25, P. L. 431, a mere formal amendment which does not change the cause of action nor increase the liability of the surety, may be allowed without discharging the surety.</p> <p>Mechanic’s liens — Covenant against liens — Fraudulent representations.</p> <p>A covenant against liens procured by false and fraudulent representations made at the very time the contract was executed will not be enforced. Thus a covenant against liens will not be enforced where it appears that at the time the contract was made the owner falsely represented to the contractor that there was only one mortgage on the property, whereas in fact there were two, and that he could set aside as security to the contractor, three properties, whereas in fact he did not own or control such properties. In such a case the contractor will not be deemed to have waived the fraud because he received payments after he had discovered the fraud.</p> <p>Mechanic’s lien — Contract with owner — Bill of particulars.</p> <p>In case of a contract with an owner no bill of particulars need be attached to a mechanic’s lien.</p> <p>A complaint that a mechanic’s l