Waters v. Wolf

• Decision Date: 11 July 1894
• Docket Number: 278
• Citation: 162 Pa. 153,29 A. 646
• Parties: Waters, Appellant, v. Wolf, Exrx., et al
• Court: Pennsylvania Supreme Court

29 A. 646

162 Pa. 153

Waters, Appellant, v. Wolf, Exrx., et al

No. 278

Supreme Court of Pennsylvania

July 11, 1894

Argued November 8, 1893

Appeal, No. 278, Oct. T., 1893, by plaintiff, John W. Waters from order of C.P. No. 3, Allegheny Co., Nov. T., 1892, No 169, discharging rule for judgment for want of sufficient affidavit of defence against defendants, Anna Wolf, executrix of Nicholas Wolf, owner, and Thomas White, contractor. Affirmed.

Rule for judgment for want of sufficient affidavit of defence on sci. fa. sur mechanic's lien entered by subcontractor.

The affidavit of defence alleged that the building was erected under contracts made between the owner and contractor, which contained stipulations providing that "Before the payments are made all releases on the parts of work finished shall have been signed by the contractors furnishing material and labor on said building. The contractor agrees that no liens shall be filed against said works, or on account of the said contractor; neither shall there be any legal or lawful claims against the contractor, in any manner, from any source whatever, for work or materials furnished on said works."

A subsequent clause in the contract was, in part, as follows: "The proprietor will not, in any manner, be answerable or accountable for any loss or damage that shall or may happen to the said works, or any part or parts thereof respectively, or for any of the materials or other things used and employed in finishing and completing said works."

Rule for judgment discharged. Plaintiff appealed.

Error assigned was order refusing judgment, quoting it.

The judgment of the court below is affirmed, and the appeal is dismissed at costs of appellant.

Thomas Patterson, William A. Way with him, for appellant. -- The act of June 8, 1891, P.L. 225, only requires the contract to be in writing. It does not affect the contract, but only requires certain evidence of its existence.

The act does not impair the obligation of contracts, as it only applies to contracts made after its passage: Sturges v. Crowninshield, 4 Wheat. 122; McMillan v. McNeill, Id. 209; Ogden v. Saunders, 12 Wheat. 213; Boyle v. Zacharie, 6 Pet. 348, 635; Watson v. Mercer, 8 Pet. 88; Beers v. Haughton, 9 Pet. 359; Suydam v. Broadnax, 14 Pet. 67; Planters' Bank v. Sharp, 6 How. 328; Baldwin v. Hale, 1 Wal. 223; 2 Kent's Com. *392; McCracken v. Hayward, 2 How. 612.

The act does not extend or construe the terms of any existing act. It is aimed at the rule announced in Schroeder v. Galland, 134 Pa. 277. It simply declares a new rule to take the place of the one announced by that decision: Felts's Ap., 1 Mona. 282; Sankey v. Hawley, 118 Pa. 30. It does not attempt to invade the province of construction, as did the act of June 17, 1887: Titusville Iron Works v. Keystone Oil Co., 122 Pa. 627.

The provisions of the contract are not sufficient to prevent the filing of liens: Cresswell Iron Works v. O'Brien, 156 Pa. 172; Loyd v. Krause, 147 Pa. 402; Nice v. Walker, 153 Pa. 123; Smith v. Levick, 153 Pa. 522.

Frank P. Iams, Cyrus C. Brock with him, for appellees. -- The act of June 8, 1891, considered as an attempt to amend the acts of 1836 and 1845, violates art. 3, § 6, of the constitution of Pennsylvania.

The plaintiff must accept the whole or none of the contract: Share v. Anderson, 7 S. & R. 43.

The act is void because it is an invasion of the province of the judiciary in that it provides that a contract shall be construed contrary to its own inherent terms, if certain things are not done at its execution: Art. 5, § 1, Const.; Titusville Iron Works v. Keystone Oil Co., 122 Pa. 633.

The act violates art. 1, § 1, of the constitution: Faas v. Warner, 96 Pa. 217; Plank Road Co. v. Davidson, 39 Pa. 440; Sharpless v. Mayor, 21 Pa. 165; Harlan v. Rand, 27 Pa. 511; Edward's Ap., 108 Pa. 290; Godcharles v. Wigeman, 113 Pa. 437; R.R. v. Baty, 6 Neb. 37; Lumber Co. v. Savings Bank, 77 Mich. 199; McMasters v. Normal School, 2 Dist. R. 759 [affirmed; reported below].

The contract excluded all liens: Nice v. Walker, 153 Pa. 123; Benedict v. Hood, 134 Pa. 289.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and THOMPSON, JJ.

OPINION

MR. JUSTICE DEAN:

The plaintiff filed a mechanic's lien as subcontractor for work done and materials furnished in the erection of a four story brick hotel for Nicholas Wolf in McKeesport, Allegheny county. Wolf, the owner, made his contract for the work and materials in the construction of the building with Thomas White, a contractor and builder. The contracts with White were two, one dated June 15, 1891, and the other November 7th of the same year. Both contracts contained this stipulation: "The contractor agrees that no liens shall be filed against said works, or on account of the said contractor, neither shall there be any legal or lawful claims against the contractor in any manner from any source whatever, for work or materials furnished on said works."

During the progress of the work White made an agreement with Waters, the plaintiff, as subcontractor, for work and materials on the building. Waters made no agreement with White with reference to filing a lien, nor did he consent in writing to be bound by the stipulations of White's contract with the owner. He filed this lien for a balance of $413 due him, on which sci. fa. issued, and Wolf, the owner, filed affidavits of defence, averring that, by his contract with the principal contractor, no lien could be enforced. Plaintiff then took a rule for judgment for want of a sufficient affidavit of defence, which rule, after argument, on May 3, 1893, the court discharged without filing opinion. From that decree plaintiff took this appeal, assigning for error the decree discharging the rule.

If the decisions of this court touching the rights of the owner, in a long line of cases preceding and following Schroeder v. Galland, 134 Pa. 277, of which that opinion is only a concise summary, be the law, this appeal cannot be sustained. But it is argued, the rule laid down in that and like cases is swept away by the act of June 8, 1891, passed subsequently, with the intention of rendering that rule inoperative as to all cases arising after the passage of the act. And this result is conceded by the appellee, if effect be given that act according to its terms.

The act referred to contains two sections, as follows:

"1. No contract which shall hereafter be made for the erection of the whole, or any part of a new building, with the owner of the lot upon which the same shall be erected, shall operate to interfere with or to defeat the right of a subcontractor, who shall do work or shall furnish materials under the agreement of the original contractor in aid of such erection, to file a mechanic's lien for the amount which shall be due for the value of such work or materials furnished, unless such subcontractor shall have consented in writing to be bound by the provisions of such contract with the owner, in regard to the filing of liens. Without such written consent of the subcontractor, all contracts between the original contractor and the owner, which shall expressly or impliedly stipulate that no such lien shall be filed, shall be invalid as against the right of such subcontractor to file the same.

"2. All persons contracting with the owner of ground for the erection or construction of the whole or of any part of a new building thereon, shall be deemed the agent of such owner in ordering work or materials in and about such erection or construction, and any subcontractor doing such work or furnishing such materials, shall be entitled to file a mechanic's lien for the value thereof within six months from the time the said work was completed by said subcontractor, notwithstanding any stipulations to the contrary in the contract between the owner and the contractor, unless such stipulations shall have been consented to in writing by such subcontractor."

The constitutionality of this act is denied by the appellee, and, as a consequence, the decision in Schroeder v. Galland, it is alleged, is not abrogated by it.

The first statute on this subject, that of 1803, gave a lien to mechanics and material men against the building for debts contracted by the owner. The intervention of a contractor or builder, who might subcontract with mechanics and material men, was not recognized by that act. Then came the act of March 17, 1806, which, like the act of 1803, applied only to the county of Philadelphia, but which, by the act of 1808 was extended to the boroughs of Lancaster, Pittsburg and Erie, and by subsequent acts still further extended. This act provides that every dwelling house or other building, thereafter constructed, should be subject to the payment of debts contracted for or by reason of any work done or materials furnished in the erection or construction of any house or other building, before any other lien which originated subsequent to the commencement of the work. And by the same act, the act of 1803, which applied only to Philadelphia, Southwark and Northern Liberties, was repealed. In Steinmetz v. Boudinot, 3 S. & R. 541, the materials were furnished before the act of 1806, and it was decided, that as the contract for furnishing material was not made with the owner of the legal title, but with one who had contracted to purchase on a ground rent, a lien could not be sustained under the act of 1803; but it was stated by TILGHMAN, C.J., who delivered the opinion, that the act of 1806 was passed to relieve against such hardship, by giving a lien to the mechanic or material man, whether the work was done or material furnished on the credit of the owner or not. This last statement was outside of the question decided. Whether the...