Nice v. Walker

• Decision Date: 13 February 1893
• Docket Number: 272
• Parties: Nice, Appellant, v. Walker
• Court: Pennsylvania Supreme Court

25 A. 1065

153 Pa. 123

Nice, Appellant, v. Walker

No. 272

Supreme Court of Pennsylvania

February 13, 1893

Argued February 2, 1893

Appeal, No. 272, Jan. T., 1893, by plaintiff, William Nice Jr., from judgment of C.P. Montgomery Co., June T., 1891, No 13, M.L.D., on verdict for defendants, Alpheus M. Walker et al.

Scire facias sur mechanics' lien.

The facts appear by the opinion of the Supreme Court.

At the trial, before WEAND, J., the court gave binding instructions for defendant. [1]

Verdict and judgment for defendant. Plaintiff appealed.

Error assigned was, (1) instruction, as above, quoting it.

The judgment is reversed, and a venire facias de novo awarded.

Edward Saunders Dixon, B. E. Chain with him, for appellant. -- It was never intended by the agreement in question to deprive the subcontractor of the right to lien, and the agreement by its terms has not deprived him of this right.

The word "owner" in the contract, considered in connection with the entire contract, certainly cannot be construed to mean building; and as it does not appear anywhere in the contract that liens shall not be filed, we have no right to infer it, and thereby deprive this plaintiff of his statutory right to file a lien: Lloyd v. Krause, 29 W.N. 430 .

De Forrest Ballou, Henry M. Brownback with him, for appellee, relied upon Benedict v. Hood, 134 Pa. 289; Schroeder v. Galland, 134 Pa. 277; Dersheimer v. Maloney, 143 Pa. 532; Tebay v. Kirkpatrick, 146 Pa. 120.

Before PAXSON, C.J., GREEN, WILLIAMS, MITCHELL and DEAN, JJ.

OPINION

MR. CHIEF JUSTICE PAXSON:

This action was a scire facias sur mechanics' lien in the court below. The learned judge held that it was ruled by Dersheimer v. Maloney, 143 Pa. 532, as appears by the following extract from his charge to the jury: "It has been ruled by the Supreme Court in the case of Dersheimer v. Maloney, 143 Pa. 532, which was a precisely similar proceeding, in which these precise words occurred, that this was a covenant against filing any lien, or which would bar any claim either against the owner or his property, and I am bound to rule this case in the light of that decision."

It is manifest there is some confusion in the professional mind as to the line of cases commencing with Schroeder v. Galland, 134 Pa. 277, in regard to the right of a subcontractor to file a mechanic's lien, and if any portion of this confusion is justly chargeable to this court we cheerfully accept our share of the blame. It may be that some of the cases will have to be slightly modified. In any event it seems necessary to review this line of cases to the extent at least of seeing just where we stand, and laying down a rule which will leave nothing in doubt as to the future.

In Long v. Caffrey, 93 Pa. 526, the contractor for the erection of the building stipulated in writing with the owner that he would not file a mechanic's lien against said building, and we held that he was bound by his contract. This case was followed by Scheid v. Rapp, 121 Pa. 593, in which the contractor covenanted "for himself, his heirs, executors and administrators, that he will not suffer or permit to be filed . . . . any mechanic's lien or liens against the said building for the period of six months after its completion." The lien in this case, as in Long v. Caffrey, was filed by the contractor himself, and we held, as in that case, that he was debarred by his own covenant from filing the lien.

In Schroeder v. Galland, supra, we went one step further, and held that where the contractor had covenanted with the owner not to file a lien, nor to permit liens to be filed by others, the subcontractors were bound by the covenant of the contractor with the owner, and, as he could not file a lien, they could not. This was an inevitable and logical conclusion from the doctrine laid down in the prior cases. As was held in Schroeder v. Galland, 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. He cannot have the benefits of the builder's contract without accepting its conditions. The only ground upon which the contractor can bind the building for either materials or labor is by virtue of the authority delegated to him by the owner, and where no such authority is delegated, but, on the contrary, is expressly withheld, and he covenants that no liens shall be filed against the building, he cannot file a lien himself nor can his subcontractors do so.

In a per curiam opinion, filed at the commencement of this term, and which has not yet been reported [the preceding case], it was said in substance that the principle intended to be decided in Schroeder v. Galland, was, that the subcontractor cannot file a lien where the contractor has expressly covenanted not to do so, or where such covenant appears by necessary implication from the contract itself. It is believed that the words, "necessary implication" have not been understood as we intended them to be, and that most of the confusion arising in this class of cases grows out of this misunderstanding. It is possible we have not been sufficiently explicit upon this point. Hence, we have had case after case, in which the contention has been, whether the peculiar language of the contract between the owner and the contractor amounts to a covenant not to lien a building. If I am right in this it is quite time that the law upon this subject should be defined so clearly that it cannot readily be misunderstood. It should be so plain that every mechanic and material man, though of limited education, can understand it at a glance, and not be compelled to submit its interpretation to a lawyer, with the risk of a decision against him in the court of last resort.

To illustrate my meaning upon this subject I will now consider briefly the particular provisions of the contract in Schroeder v. Galland, and the cases which have followed it, so far as they have been reported.

In Schroeder v. Galland, the contract between the owner and the principal contractor stipulated that the building should be built, finished, and delivered over to the owner "free of all liens and incumbrances or any claims whatever that might arise under any action of the party of the second part or his legal representatives under this contract." It was further provided, as is usual in such contracts, that all wages of artisans and laborers and all persons furnishing materials to the contractor on account of the contract, shall be paid by the contractor. These are the essential features of the contract, and we held in that case that the stipulation against liens was not only obligatory upon the principal contractor, but also upon the subcontractors, and that they could not recover.

In Benedict v. Hood, 134 Pa. 289, the agreement between the contractor and owner contained an express covenant against liens in the following words: "And it is further agreed that the party of the first part will not at any time suffer or permit any lien, attachment, or other incumbrance, under any law of this state, or otherwise, by any person or persons whatsoever, to be put or remain on the building or premises, into or upon which any work is done, or materials are furnished under this contract, for such work and materials, or by reason of any other claim or demand against the party of the first part; and that any such lien, attachment, or other incumbrance, until it is removed, shall preclude any or all claim and demand for any payment whatsoever, under or by virtue of this contract."

This is sufficiently explicit, and does not need comment. It will be noticed that the covenant is much stronger than in Schroeder v. Galland, the difference being that in the one case there is an express covenant not to file liens, while in the other the covenant is only to be implied from language about which laymen might differ, and, possibly, lawyers.

In Murphy v. Morton, 139 Pa. 345, it was held that a covenant by the contractor for the erection of a building, that, before the final payment shall become due, he will furnish releases from all persons having a right of lien, will not protect the owner from mechanics' liens for work done or materials furnished in good faith by subcontractors and material men, and was not a covenant on the part of the contractor not to file a lien. On the contrary, there is a recognition of the right of subcontractors and material men to lien the building. The provision of the contract that before the contractor shall receive his last payment he shall furnish releases from all persons entitled to file liens, is a recognition of the right to file them.

In Willey v. Topping, 146 Pa. 427, the original contract for the erection of the building contained no prohibition of mechanics' liens, and we held that a subsequent release of his right did not prevent the filing of a lien by a material man, though the materials were furnished after the release was delivered; that while a subcontractor is bound by the terms of the original contract between the owner and the contractor, he is not bound to inquire from time to time whether such contract has been changed or modified. To the same point is Cook v. Murphy, 150 Pa. 41.

In Moore v. Carter, 146 Pa. 492, it was held that a stipulation that the contractor shall furnish releases from subcontractors, etc., before the last instalment...