Willison v. Douglass
| Decision Date | 12 November 1886 |
| Citation | 6 A. 530,66 Md. 99 |
| Parties | WILLISON v. DOUGLASS. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Allegany county. In equity.
Bill to enforce mechanic's lien. Decree of dismissal. Plaintiff appeals.
Josiah H. Gordon and Robert H. Gordon, for appellant.
David W. Sloan and A. Hunter Boyd, for appellee.
The appellant filed a bill in the circuit court for Allegany county for the enforcement of a mechanic's lien. No question in relation to the regularity of these proceedings has been presented. If it be conceded that the plaintiff ever had any lien which could be enforced, the mode of procedure has been in strict conformity with the requirements of the statute. That the materials for the erection of the building were furnished, is not denied; but the question presented for determination is in relation to the proper construction and effect to be given to certain agreements entered into by the parties interested some months anterior to the time when this lien claim was filed. These proceedings were commenced on the twenty-ninth day of December, 1882. The claim is for materials furnished between the twenty-fifth day of May 1882, and the twenty-second of September in the same year. On the third day of June, 1882, which was very shortly after the first delivery of materials, an agreement under seal was executed by Schofield, the contractor, by Willison, the plaintiff, who furnished the lumber, and by one Brady jointly. By the terms of this contract the building was to be erected, in conformity to the specifications, for the sum of $1,493. These specifications, under seal, were signed by the parties aforesaid, who at the same time executed a bond, by the condition of which they were to "save the said John C. Douglass harmless from any and all liability for work and labor done upon or materials furnished for said building beyond the sum of $1,493." Douglass then signed an agreement to pay $500 on delivery of the lumber, and another sum of $500 on completion of outside building, and to execute a mortgage in favor of Willison for $493, bearing interest at 5 per centum per annum, and payable in two years. The proof shows that $1,000 was paid by Douglass in cash, in accordance with the terms of the agreement, and the plaintiff, Willison, admits in his testimony that he agreed to receive from Douglass a mortgage as security for the balance, amounting to $493. It is shown by the evidence that Douglass afterwards offered to execute the mortgage, and that Willison refused to accept it, on the ground that Douglass only had an equitable title to the property; and that Douglass then offered to pay the sum intended to be secured by the mortgage in cash, which offer was rejected by Willison. It is also proved that Douglass has already paid other lien claims on the said building, amounting to $395.42, under a decree of the circuit court for Allegany county. As the plaintiff had entered into a bond to save the defendant harmless from all sums in excess of $1,493, it follows that in no aspect of this case can Douglass be held liable for more than $97.58; whereas the claim now sought to be enforced by the plaintiff amounts to the sum of $851.96.
Whether the contract entered into by the parties, and a part compliance by the defendant by the payment of $1,000, and his offer to fully comply with all the terms of said contract by the execution of a mortgage or the offer of payment in cash of the sum intended to be thereby secured, operated as a waiver of the lien, is the sole question presented for determination in this appeal. It is provided by section 3 art. 67, Revised Code, that a mechanic's lien shall not be considered as waived "by granting a credit, or receiving notes or other securities, unless the same be received as payment, or the lien be expressly waived;" but it is manifest that, if an express contract under seal be entered into inconsistent with the operation of a lien, the lien is expressly waived by the legal effect of such express contract. This seems to be a general principle applicable to all liens created by operation of law. In Crawshay v. Homfray, 4...
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