Aste v. Wilson

• Decision Date: 08 January 1900
• Parties: ASTE v. WILSON et al.
• Court: Colorado Court of Appeals

59 P. 846

14 Colo.App. 323

ASTE v. WILSON et al.

Court of Appeals of Colorado

January 8, 1900

Appeal from district court, Arapahoe county.

Action to enforce mechanics' liens by Joseph Wilson and others against A.J. Aste. From a decree for plaintiffs, defendant appeals. Affirmed.

S.L. Carpenter, for appellant.

F.A Williams, for appellees.

WILSON J.

This is an action to enforce mechanics' liens. Aste, the owner entered into a written contract with Elrod & Burnett, general contractors, whereby the latter agreed to provide the material and labor, and erect for him a six-room terrace, on certain lots owned by him, for a certain aggregate sum, to be paid partly in installments during the progress of the work and the entire contract price after its completion. Among other stipulations in the contract was the following "And the first parties covenant and agree that they will not suffer or permit any one or more liens or claims for work, labor, or material to be pleaded, set up, or asserted by any person claiming to be a subcontractor, laborer, or otherwise, under them, the first parties, or, if any are set up, asserted, or pleaded, will cause the same to be satisfied and canceled of record." Also, the following covenant: "It is agreed by the parties that fifteen per cent. of the contract price shall be held by the owner as part security for the faithful performance of the work, and may be applied, under the direction of the supervising architects, in the liquidation of any damage under this contract; also, furnishing to the owner a release from any liens, or right of lien, when requested." Thereafter, and upon the same day, the plaintiffs, as subcontractors, entered into a contract in writing with Elrod & Burnett, whereby the former agreed to do all of the brick and stone work, and furnish all material, labor, and scaffolding necessary in the erection of said building. This contract also contained a covenant in the same language as that which we have first quoted. Upon the back of this contract was a written guaranty signed by defendant John A. Keefe and A.J. Schulte, in which they guarantied "to said Elrod & Burnett the full and faithful performance by the said Wilson & Morris of the aforesaid contract on their part in every particular." About the same date Elrod & Burnett entered into a written contract with one Timothy Ryan, whereby the latter agreed to make the necessary excavation for said building. This contract also contained a stipulation by Ryan against liens and claims, in the same language as those to which we have referred. Defendant Baldwin claims a lien by virtue of employment by said Ryan in this work of excavation, and also as assignee of the claims of several other laborers engaged with him in the same employment. Defendant Keefe furnished the brick for the building under agreement with the plaintiffs, and for this he claims a lien. The decree was in favor of the lien claimants, who are the appellees here; and from this, Aste, the owner of the property, appeals. The principal contention of his counsel, upon which he relies to defeat all of the liens, is that the several claims of subcontractors, laborers, and material men rest upon the original contract between Aste, the owner, and Elrod & Burnett, the general contractors, and that all such persons are presumed to have notice of the existence of such contract, a general knowledge of its terms, and the rights and obligations of the parties thereto, and to have taken subcontracts and contributed labor and materials in furtherance of the work in strict subordination to such terms, and that the general contractors having covenanted with the owner that they would not suffer or permit any liens or claims to be pleaded, set up, or asserted by any subcontractor or laborer under them, the latter are thereby estopped from so doing.

That a contractor, subcontractor, material man, or laborer may himself, by contract, waive his statutory right to a lien, seems to be true, both upon reason and authority. With reference to the broad doctrine asserted by counsel, that in all cases, regardless of the provisions of the statutes of the state in which the contracts are executed, the original contractor may, by a contract to which he and the owner alone are parties, waive or destroy the statutory right to a lien of others, not parties to the contract, who may do work upon or furnish materials for the structure, it is not conclusively established by the authorities, nor is the reasoning by which it is supported entirely clear and convincing. Apparently, however, he is not without very respectable authority in support of it. It seems to be the established rule in one state (Pennsylvania), the decisions of whose supreme court are entitled usually to much weight and consideration. Without making a long list of citations, we refer only to the two leading cases, in which references are made to a number of others supporting the same contention: Schroeder v. Galland, 134 Pa.St. 277, 19 A. 632; Morris v. Ross, 184 Pa.St. 241, 38 A. 1084. The reasoning of the court in announcing this rule was, substantially, that, the subcontractor and laborer deriving their rights to a lien solely through the original contractor, they cannot have the benefits of the builder's contract without accepting the conditions upon which those benefits are conferred; they being to the extent of their undertaking bound to do just what their principal was bound to do, they must perform it, of course, according to the express limitations in his contract. Mechanics' lien laws are wholly creatures of statute, and it is safe to say that in all of the states they differ in many respects, more or less materially. It is unsafe, therefore, to rely wholly upon the authority from another state announcing a principle applicable to a lien law, however general the principle may seem to be in its application, unless we are advised as to the particular provisions of the entire statute in that state. We are not advised as to what the lien law in Pennsylvania is or was. It is true that the broad principle enunciated by the courts in that stated would seem to be applicable to lien laws generally. It is possible, however, that there might have been some special statutory provision in that state which materially affected or controlled the decisions on this point. We are not advised--and this is a most important consideration--whether, under the statute then in force in that state, the lien of a subcontractor, material man, or laborer was in terms made direct, and not dependent on the contract of the owner with the principal contractor, or whether is was indirect, and wholly dependent upon such contract. It is strenuously insisted, and with much force, that the lien statute in this state now in force, and under which this suit arose, gives a direct lien to such persons (Laws 1893, p. 315). We simply suggest this, without intending to decide it, because it is not necessary to the determination of this case. We have also been referred to a case in California which seems to be in line with the Pennsylvania authorities. Bowen v. Aubrey, 22 Cal. 566. In that case it was held that the subcontractor knew that there was a contract between the owner and the general contractors, and this was sufficient to put him upon inquiry, and he was to be considered as affected with notice of the contents and stipulations of this contract. In that case, also, the original contractor had expressly, by his contract, waived his own right to file a lien, and the court said that the subcontractor had no higher rights than the original contractor. How far these considerations affected the decision, does not appear. In a subsequent case (Dore v. Sellers, 27 Cal. 594) the court, speaking of the right which the employés of a contractor have to assert a lien under the statute, said that they had the right, not for the reason that the employer's property had been benefited by the labor or materials furnished by the employés, but because they had furnished the labor or materials for the contractor, to whom the law had granted a lien for the amount which became due to him under the contract in consequence of their labor and materials. It would seem, therefore, that under the statute of that state, as construed by the supreme court, the lien of a subcontractor or other employé was not direct, but depended upon the contract of the owner with the principal contractor. In Benedict v. Hood (Pa.Sup.) 19 Am.St.Rep. p. 699 (s.c. 19 A. 635), Mr. Freeman, the distinguished editor, in speaking of the case of Bowen v. Aubrey, supra, says: "This case was decided in 1863, under the California mechanics' lien law of April 19, 1856, as amended by the act of April 22, 1858. It has been cited in several subsequent cases in California on other points, but not upon the question under consideration. The decision of that case seems to have been overruled in the later case of Whittier v. Wilbur, 48 Cal. 175." The question under consideration, to which Mr. Freeman refers, was the effect of an agreement by the principal contractor, in a contract with the owner, that he would not suffer or permit any lien to be put on the structure. Against the doctrine announced by the Pennsylvania courts there is also a respectable array of authority.

Norton v. Clark, 85 Me. 359, 27 A. 252; Miles v. Coutts, 20 Mont 47, 49 P. 393; Clough v. McDonald, 18 Kan. 114. In the first-cited case, the court, in construing a stipulation in a building contract with the original contractor, that no lien should exist or be claimed for any labor or materials furnished by him or any others employed by him, said, "This particular stipulation, like all other stipulations, binds only those who made it or assented to it."...