Miles v. Coutts
| Decision Date | 21 June 1897 |
| Parties | MILES v. COUTTS et al. |
| Court | Montana Supreme Court |
Appeal from district court, Park county; D. J. Rose, Judge.
Action brought by A. W. Miles against A. F. Coutts and others to foreclose a mechanic's lien. From the judgment of the lower court, plaintiff appeals. Reversed.
This is an action to foreclose a mechanic's lien, brought by plaintiff, who is a material man, and claims a lien as such. The complaint is in the usual form used in cases of this kind. The answers, after denying the several allegations of the complaint, allege: "And, for a further and separate defense to the said action, defendant alleges that on the 27th day of May, 1892, the defendant Frank Henry entered into a written contract with A. F. Coutts for the erection of a dwelling house upon lots named in the complaint, by the terms of which the said Courts was at his own cost and expense to build and erect the dwelling house mentioned in the complaint, and was to furnish all labor and material for the construction thereof at his own proper cost and expense under the direction of Galbraith and Fuller, architects according to certain plans and specifications mentioned in the contract." It is conceded that the building contract provided for and included the furnishing of the glass to be used in the building, for which plaintiff sues in this action. Said Coutts, by the terms of the contract, was to have said dwelling house completed on or before the 1st day of November, 1892, and agreed to pay for all labor and material, and to allow no liens to be filed on said dwelling. Defendant Henry claims that, by the terms of said contract between himself and Coutts, the plaintiff is estopped from claiming any lien for material furnished upon said premises or any part thereof. The written contract referred to in defendant's answer is filed as an exhibit with the answer. The eleventh clause of said contract reads as follows: "Said contractor agrees to pay for all labor and material, and allow no liens to be filed on said building, and the said proprietor reserves the right to pay off and discharge any liens that may be filed, out of sums due said contractor, as hereinabove provided." To the answer the plaintiff filed a demurrer, on the ground that it did not state facts sufficient to constitute a defense. The court below overruled the demurrer, and, plaintiff declining to further plead, the cause came on for trial, and judgment was rendered against the plaintiff for costs. From this judgment, plaintiff appeals.
J. A. Savage and E. C. Day, for appellant.
A. J. Campbell, for respondents.
PEMBERTON C.J. (after stating the facts).
The plaintiff in this case is a material man, and, as such, is endeavoring to enforce a lien against the premises in question. It is conceded that he is entitled to the relief he seeks in this suit, unless he is estopped and barred from claiming a lien by the terms of the eleventh clause of the contract entered into by and between the original contractor and the owner of the building and premises in controversy, which clause is pleaded by the defendants. This clause is given in full in the statement above. It cannot be disputed that our lien law gives a material man a lien for the materials furnished by him in the construction of a building. He is as much entitled to a lien under the law as a contractor, subcontractor, or laborer. The material questions here presented are two: First. Are the terms of the clause in the contract between the contractor and owner of the building so explicit as to admit of but one interpretation, namely, to forbid the claiming of a lien by the original contractor and all other persons furnishing labor or material in the construction of the building? Second. Can the contractor and owner of the building, by contract, deprive all other persons who labor and furnish materials in the construction of a building of their right to claim a lien thereon without their assent?
It is not disputed that all persons to whom the law gives a lien may waive it by proper agreement. These questions have been very extensively discussed by the supreme court of Pennsylvania. The laws of that state are very similar to ours as to the persons who are entitled to a lien. In a number of cases the supreme court of that state has held, in effect that, where a contractor covenants with the owner of the building not to file a lien or permit liens to be filed by others, the subcontractor and all persons furnishing labor or materials were estopped or deprived by such contract from claiming liens on the premises. This holding is upon the theory that, "the only connection between the owner and the subcontractor being through and by means of the contract between the owner and the principal contractor, the subcontractor is chargeable with notice of all its terms and stipulations, and is bound thereby." Schroeder v. Galland, 134 Pa. St. 277, 19 A. 632. In Nice v. Walker, 153 Pa. St. 123, 25 A. 1065, the court collate and discuss their former decisions on these questions. In the case just cited, the court, while it adheres to the doctrine as laid down in Schroeder v. Galland, supra, and other cases commented upon,...
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