Van Dyck Heating & Plumbing Co. v. Cent. Iowa Bldg. Co.

• Decision Date: 17 November 1925
• Docket Number: No. 36621.,36621.
• Citation: 200 Iowa 1003,205 N.W. 650
• Court: Iowa Supreme Court
• Parties: VAN DYCK HEATING & PLUMBING CO. v. CENTRAL IOWA BLDG. CO. ET AL.

200 Iowa 1003

205 N.W. 650

VAN DYCK HEATING & PLUMBING CO.

v.CENTRAL IOWA BLDG. CO. ET AL.

No. 36621.

Supreme Court of Iowa.

Nov. 17, 1925.

Appeal from District Court, Polk County; Jos. E. Meyer, Judge.

Action to foreclose a mechanic's lien, in which proceeding a counterclaim was filed, resulting in a judgment for the plaintiff for the sum of $4,877.13, and the foreclosure of his mechanic's lien. Defendant R. B. McGregor appeals. Reversed.Havner, Flick & Powers, of Des Moines, for appellant.

C. C. Putnam and Judson E. Piper, both of Des Moines, for appellee.

ALBERT, J.

Appellee had a written contract with the appellant for the furnishing and installation of plumbing and heating in the Iowa building in the city of Des Moines. Among other provisions of said contract was the following:

“The said contractor hereby waives all liens and claims to liens against the said building and the land on which the same is erected, which he * * * may have or be entitled to under and by virtue of the statutes of the state of Iowa by reason of work done and to be done, and material furnished and to be furnished said building under this contract. The said contractor further agrees that the completed work called for by this contract and offered to the owner for acceptance shall be delivered free from any and all claims and encumbrances of any description whatsoever.”

Notwithstanding this provision, the lower court held that the appellee was entitled to a mechanic's lien and entered decree foreclosing the same. It is now urged by appellant that this was error on the part of the court.

A mechanic's lien is a right or privilege given to a contractor to protect himself against loss for material and labor furnished. It is wholly a creature of statute. We know of no reason, and none has been urged, which would prevent the contractor waiving such a lien by contract so as to be binding in a contest between the property owner and the original contractor. We have been unable to discover any Iowa case involving this proposition, but the question has been repeatedly determined in other jurisdictions. Cushing v. Hurley, 112 Minn. 83, 127 N. W. 441;Gray v. Jones, 47 Or. 40, 81 P. 813;Fuhrman v. Frech, 60 Ind. App. 349, 109 N. E. 781;Arizona E. R. Co. v. Globe Hardware Co., 14 Ariz. 397, 129 P. 1104;Fidelity Mut. Life Ass'n v. Jackson, 163 Pa. 208, 29 A. 883, 43 Am. St. Rep. 789;Brzezinski v. Neeves, 93 Wis. 567, 67 N. W. 1125;Sanders' Brick Co. v. Barr, 76 Mo. App. 380;Weinberg v. Valente, 79 Conn. 247, 64 A. 337;Pinning v. Skipper, 71 Md. 347, 18 A. 659;Frost v. Falgetter, 52 Neb. 692, 73 N. W. 12.

[1] Appellee does not seem to seriously contend otherwise but says that the contract stipulation waiving the right to a mechanic's lien must be explicit and free from all ambiguity and doubt. Citing Davis v. La Crosse Hospital Ass'n, 121 Wis. 579, 99 N. W. 351, 1 Ann. Cas. 950;Concord Apt. House Co. v. O'Brien, 228 Ill. 476, 81 N. E. 1076;Aste v. Wilson, 14 Colo. App. 323, 59 P. 846. As said in the Davis Case just cited, where there is ambiguity and doubt it should be resolved in favor of the lien. We are agreed with this proposition as stated by appellee, but it has no application to the contract stipulation before us, for the reason that the waiver heretofore set out is perfectly clear and unambiguous in every respect. It states in so many words that the contractor waives all liens and claims to liens against said land and building, etc. To our minds, no more apt language could be used to express the idea of a waiver than that used in this contract. It must therefore follow that the appellee was not entitled to assert and foreclose a mechanic's lien against this property, and the district court erred in holding that it did.

As usual in large building contracts like the one under consideration, many changes were made varying the original plans and specifications. Payment was made to the contractor from time to time as provided in his contract, but when the contract was near completion dissension arose between the parties, and a settlement was attempted, but no agreement reached. The architect in charge was Henry L. Newhouse, of Chicago. When the parties were unable to agree to an adjustment of their difficulties, Newhouse was called into conference, and all the various matters of contention between the parties were gone over with him without reaching a result. Before he left the conference to return to Chicago he said: “I will send you a certificate and we will settle it.” On his return to Chicago, under date of July 23, 1920, he forwarded to both parties a certificate in the following form:

This is to certify that Van Dyck Heating & Plumbing Company, contractor for the plumbing and heating of your building, Sixth and Grand avenue, Des Moines, Iowa, has been overpaid nine hundred twenty-two and 93/100ths dollars ($922.93) according to the terms of the contract.

Henry L. Newhouse, Architect.

+-------------------------------+
                ¦Contract price      ¦$58,970 00¦
                +--------------------+----------¦
                ¦Additional work     ¦9,161 69  ¦
                +--------------------+----------¦
                ¦Allowances          ¦5,208 12  ¦
                +--------------------+----------¦
                ¦Former certificates ¦63,846 50 ¦
                +--------------------+----------¦
                ¦Total amount issued ¦63,846 50 ¦
                +--------------------+----------¦
                ¦Overpaid            ¦922 93    ¦
                +-------------------------------+
                

Remarks: _____.

This certificate, whether issued as final or otherwise, is an opinion only, and is in no sense a guarantee on the part of the architect. It is not to be interpreted as an acceptance of any work or material which is defective or which is not in accordance with the contract, and in making payment under it the owner reserves the right to hold the contractor strictly responsible for defective work or material, or for any violation of the contract.

I agree to the above, and hereby acknowledge receipt of the amount stated on this certificate.

Date: _____.

Contractor.

This case is presented to us and argued by both sides on the theory that a “final certificate” from the architect, Newhouse, is binding and final on both parties, but it is the contention of the appellee that the certificate above set out is not a “final certificate,” and therefore appellee is not bound thereby. This is one of the crucial questions in the case. The appellee states his position in relation thereto as follows:

“A certificate of an architect which is upon its face a mere opinion, and does not purport to be final, is not conclusive upon the...