Gray v. Jones

• Citation: 47 Or. 40,81 P. 813
• Parties: GRAY v. JONES et al.
• Decision Date: 31 July 1905
• Court: Supreme Court of Oregon

81 P. 813

47 Or. 40

GRAY v. JONES et al.

Supreme Court of Oregon

July 31, 1905

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Action by John Gray against M.L. Jones and another. Judgment for plaintiff. Defendants appeal. Reversed.

W.M Kaiser and W.T. Slater, for appellants.

Geo. G Bingham and P.H. D'Arcy, for respondent.

BEAN, J.

This is a suit to foreclose a mechanic's lien. On March 25, 1903 the plaintiff agreed to furnish all the labor and material necessary for the construction and completion of a frame dwelling house, with cement basement, for defendant according to certain plans and specifications, for the sum of $4,150. The contract stipulated that alterations and additions might be made to the building during the progress of the work when requested by the defendant, without in any way affecting the validity of the contract, but the fair and reasonable value thereof should be added to or deducted from the contract price, as the case might be; and that the plaintiff would save the defendant "free and harmless from the payment of any and all liens which may be enforced on account of any material furnished or labor performed on said building and premises, or any part of either thereof and the said party of the second part further covenants and agrees that he will not allow any laborer's, mechanic's, materialman's, or any lien or liens to be filed against the said building and premises, or any part of either thereof, and, further, that the said building and premises and every part of either thereof shall be at all times free from any and all liens." Certain alterations and changes were made, for which plaintiff charges $2,582.15. The defendant paid the contract price in full and $1,465.16 on the extra work, which he claims is a fair and reasonable value for all that was ordered or requested by him or done by his authority. The plaintiff filed a mechanic's lien on the building for $1,117.05, the balance alleged to be due him, and subsequently brought this suit to foreclose it. The defendant pleads, among other matters, the covenant in the contract against liens as a bar to this suit, and the effect of such covenant is the only question necessary to consider on this appeal.

The statute (B. & C. Comp. § 5640) giving a mechanic, laborer materialman, or contractor performing labor upon or furnishing material to be used in the construction of a building a lien on such building for the labor done or material furnished, confers a privilege upon the persons named, which they may waive, and any contract or agreement inconsistent with the existence of the lien is deemed such a waiver. As said by the Supreme Court of Maryland: "It [[the lien] is brought into operation by the established law of the land, and, in the absence of special arrangements to the contrary, parties are presumed to have contracted for work and materials with reference to this law. But no statute will be so construed as to prohibit the formation of contracts not in conflict with public policy. If, therefore, parties deem it advisable to enter into an agreement inconsistent with the existence of a lien, the statute will not be construed to operate so as to create a lien and thereby destroy the special contract." Willison v. Douglas, 66 Md. 99, 6 A. 530. Thus a surety on a contractor's bond, to protect a building against liens, cannot himself enforce a lien for material furnished by him, unless he has been released from his obligation by the owner, because it would be inconsistent with his contract for him to do so. Hand Mfg. Co. v. Marks, 36 Or. 523, 52 P. 512, 53 P. 1072, 59 P. 549; Spears v. Lawrence, 10 Wash. 368, 38 P. 1049, 45 Am.St.Rep. 789. So, too, a covenant of a contractor to keep a building free from liens is a waiver of the right to file or cause to be filed a claim for lien in his own favor. 2 Jones, Liens (2d Ed.) § 1500; Phillips, Liens, § 272; Boisot,...