Pinning v. Skipper
| Decision Date | 15 November 1889 |
| Citation | 18 A. 659,71 Md. 347 |
| Parties | PINNING ET AL. v. SKIPPER. |
| Court | Maryland Court of Appeals |
Appeal from superior court of Baltimore city.
Argued before ALVEY, C.J., and MILLER, ROBINSON, STONE, and BRYAN JJ.
Fred C. Cook and Jesse N. Bowen, for appellants.
Henry T. Tapman and J. V. L. Findlay, for appellee.
The mechanic's lien law provides that "no person having such lien shall be considered as waiving the same by granting a credit, or receiving notes or other securities, unless the same be received as payment, or the lien be expressly waived." Code, art. 63, § 3. It is conceded that under this provision the lien may be waived by a special contract inconsistent with its existence or enforcement. Such a contract is, in effect, an express waiver of the lien. The lien claim in this case, amounting to $991.56, was filed by the appellants against 22 brick houses built on contiguous lots of which the appellee was the owner or reputed owner and builder. The itemized account is for sand used in laying the bricks, for digging the foundations and cellars, grading the yards and pavements, of these houses, and for grading under back buildings. It appears from the record that these lots owned by the appellee, and on which he intended to build these and other houses, contained a large quantity of valuable sand, and on the 21st of July, 1887, before any of the work was begun, he and the appellants entered into a special written contract. By this contract the Pinnings agreed (1) to do all the excavation necessary for the erection of 89 houses, more or less, on these lots, to grade the yards and alleys in rear of the same, to grade Castle street from Chew street to the alley in the rear of the houses to be erected on Eager street, and to furnish so much good sharp sand as may be necessary for the brick-work and plastering these 89 houses at 45 cents per 1,000 bricks, said 45 cents to include the plastering sand; (2) to do all this work and furnish this sand for the privilege of removing and selling the surplus sand for their own use; (3) not to excavate for sand within 10 feet of the rear wall of or where any of these houses are intended to be built; (4) to excavate the cellars and foundations as Skipper may require the same to be excavated, to grade the yards by the time the buildings are completed, and to supply the sand for the buildings as Skipper may require it; (5) that, should they fail to comply with and fulfill their part of this contract, Skipper should have the right to employ other persons to complete the work and in that case all the work they may have done shall be forfeited to Skipper as liquidated damages; (6) they agree to give to Skipper a good lien bond as a bar against liens upon said houses, or either of them, for work done or material furnished or for labor or hire; (7) to take a house or houses in full payment for the sand delivered as above mentioned; and should there be any balance due to Skipper they agree to pay the same to him. Skipper on his part agreed to give the Pinnings the surplus sand in consideration of their performance of the above work, and to give a good and sufficient deed of assignment to them for the house or houses above mentioned. At the same time the Pinnings gave to Skipper their bond, with a surety therein, to which a copy of this contract was attached, in the penalty of $1,000, conditioned for the faithful performance on their part of the terms and conditions of this contract.
There may be some difficulty as to the construction and effect of this contract in other respects, but we find none in determining that it is utterly inconsistent with the enforcement of a mechanic's lien against either of these houses by the appellants. The stipulation that they would give a bond "as a bar against liens upon said houses, or either of them," and the giving of the bond conditioned for the faithful performance of their part of the contract clearly, in our...
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