225 Pa. 400 | Pa. | 1909
Opinion by
The plaintiff filed a mechanic's lien, which it is conceded is regular upon its face, and in accordance with the Act of June 4, 1901, P. L. 431, and its supplement. The S. R. Moss Cigar Company, the owner, presented a petition praying the court to strike off the lien on the ground that a contract waiving liens had been entered into by the owner and contractors and had been duly filed in the prothonotary’s office as required by the act of assembly. The court granted a rule to show cause why the prayer of the petition should not be granted. The plaintiff filed an answer in which he claimed the lien should not be stricken off because: (1) being regular upon its face, the court has no jurisdiction to strike it off; (2) the alleged agreement of waiver of liens was not an agreement against the filing of liens; and (3) the alleged agreement was not a valid contract as it was signed only by the contractors and not by the owner. The court below sustained neither of these positions, made the rule absolute, and struck the lien from the record. We will consider these positions separately, beginning with the second and concluding with the first.
The agreement signed by the contractors and duly filed in the prothonotary's office provided, after reciting the original contract, as follows: “ Now, for a valuable consideration, the said parties of the first part agree that no lien or claim of mechanics or material men or of any other nature whatsoever, shall be filed by anyone whatsoever, excluding the contractor
Section 15 of the act of June 4, 1901, as re-enacted in sec. 1 of the Act of April 24, 1903, P. L. 297, 3 Purd. 2490, provides as follows: “If the legal effect of the contract between the owner and the contractor is, that no claim shall be filed by any one, such provision shall be binding; but the only admissible
It was error for the learned court to strike the lien from the record. It is settled on reason and authority that a mechanic’s lien will not be stricken off which is regular on its face for matters dehors the lien. This rule was early established in this state and has been uniformly adhered to by this court. The right to a mechanic’s lien being entirely statutory, not only the right itself, but the method of enforcing it, must depend upon the statute, and must be pursued in strict compliance with the terms of the statute: 27 Cyclopedia of Law & Procedure, 317; Stoke v. McCullough, 107 Pa. 39. The statute enacts that the lien shall be enforced by a scire facias and provides the form of the writ. It also provides the mode of service of the writ and the defenses which may be made to the action. The lienor may proceed voluntarily on the lien, or the owner or contractor may require him to do so. The statute provides a remedy for the disposition of the lien by all parties concerned, and that remedy must be pursued. Mr. Justice Clark, speaking for the court in Stoke v. McCullough, 107 Pa. 39, said (p. 42): “The claim is a specific lien under the statute, and the court
The existence of the contract, its legality, or its sufficiency to prevent the filing of a lien are questions which should be determined on the trial of the cause. When interposed as a defense on the scire facias, the plaintiff may contest its validity and defeat it as a defense by showing that it is a forgery, that it was not signed and filed in the prothonotary’s office as required by the statute, or by any other matter which would prevent its use for defeating the plaintiff’s lien. He may show that the contract under which he performed the labor or furnished the material was not the contract which waived the right to file a lien. This was done in the very recent case of Pagnacco v. Faber, 221 Pa. 326. That was a scire facias on a mechanic’s lien in which the owner defended on the ground that the contractor had waived the right to file a lien. The owner set up a contract under which he alleged the work was done which waived the right to file a lien; the claimant alleged and proved to the satisfaction of the jury that he had performed the labor under a subsequent contract which did not waive the right to file a lien. Mr. Justice Stewart delivering the opinion of the court said, inter alia: “The one issue of fact was whether Pagnacco, the claimant, had waived his right to file a lien. . . . The jury found that the original contract with Nyce (former owner) had been superseded by the contract with Faber, and that under the latter there was no waiver of the right to file a lien.”
While we are compelled to reverse the judgment of the court below on the ground of error in striking the lien from the record, our conclusion on the other two points in the case will defeat an action on the scire facias, unless the contract against
The assignments of error are sustained, the judgment is reversed, and the mechanic’s lien is reinstated.