160 Pa. 377 | Pa. | 1894
Opinion by
The mechanic’s lien in this case was filed on the 18th day of January, 1892, against Annie Heron, Isabella Heron and Patrick Heron, owners, and Patrick Heron, contractor. In February, 1893, the record was amended by consent by striking out the names of Annie Heron and Patrick Heron as owners, leaving the defendants to stand as Isabella Heron, owner, and Patrick Heron, contractor. At the trial an agreement in writing was placed upon the files setting forth that Isabella Heron became the owner in fee of the land on which the row •of houses was built, on the 5th day of March, 1891, by deed from Annie Heron, that she was the owner when the writ of scire facias issued, and that Patrick Heron was the contractor for the erection of the houses. The agreement further stipulated “ That this admission may be given in evidence on the trial on the above case, as proof of the facts above stated.” It was used, as we understand, by the plaintiff in making out a case in chief. The defendants replied by a denial of the plaintiff’s claim for extra work, and by putting in evidence the contract between Isabella Heron, the owner, and Patrick Heron, the contractor, which expressly stipulated that no lien should be entered “ for the work or materials necessary for the erection of the houses.” To escape from this stipulation the claimant made an attack upon the contract, alleging that Patrick Heron was in whole or part the owner of the lots; that Isabella Heron held the title as a trustee for her brother, so that Patrick Heron was in fact contracting with himself; and that the whole arrangement was a device to defraud subcontractors and material men. If the facts were found by the jury to be as thus .alleged, the contract was without effect, and presented no obstacle to a recovery by the claimant. On the other hand, if Isabella Heron was the owner of the lots, and Patrick Heron was only a contractor for the erection of the houses, then the •contract was valid and the subcontractor would be bound by its terms. This question of the relation of Patrick Heron to the title, the court below submitted to the jury as the important question of fact on which their verdict should depend, telling them if Patrick Heron was an owner in part or in whole of the lots on which he contracted to build the houses, the covenant not to enter a lien was not binding upon him or upon
There is also an apparent contradiction upon the record which we think should be noticed. The learned judge told the jury that if Isabella Heron was the owner of the lots, their verdict should be in her favor. This was clearly right. The defendants, however, presented to.the court a series of points, four in number, in which the reasons for holding a subcontractor bound by the waiver of the contractor were presented in their order. In the first of these the court was asked to say that when a contractor covenants, in express terms, not to file a lien for his labor and materials employed in the work he has contracted to do, he is bound by his covenant, and cannot sustain a lien filed in disregard of it. The second point asked the further instruction that the right of the subcontractor to file a lien is derived through, and is dependent on, that of the contractor, so that
This whole subject of the position of a subcontractor has been so frequently considered in the last four years that it cannot be necessary to enter upon any general discussion of it. The general rule is that the parties to a contract make their own bargains, and if unwilling to trust to the personal integrity or pecuniary responsibilitj^ of those with whom they deal, require them to give security for their faithful performance of that which they undertake to do. In the case of contracts to build, the legislature has undertaken to provide security for one party to the contract by subjecting the property of the other to a statutory lien in advance of any judgmentfixing the amount due. The owner of the building is left to protect himself by action on the contract; but the mechanic or material man is taken care of by the statute. The contract to build is the basis on which the lien is made to rest.« The lien itself is an additional remedy, a statutory security, for the price of work done or materials furnished under the contract. This is class legislation. It is a paternal interference between parties for the protection of one at the cost and inconvenience of the other. It assumes the inability of certain persons to protect themselves, and the consequent duty of the state to intervene in their behalf. We are not questioning the wisdom of such legislation as applicable to mechanics and material men. That is a legislative question with which we have nothing to do. Our ques
The answers to the points were inconsistent with the general charge, and at variance with the decisions of this court in the cases cited and many others.
For the reasons given this judgment must be reversed, and a venire facias de novo awarded.