48 Pa. Super. 39 | Pa. Super. Ct. | 1911
Opinion by
The plaintiffs were subcontractors under A. McDowell who had a contract with W. A. Roberts, the owner of the premises, for the erection of three brick veneer dwelling houses. The plaintiffs furnished the lumber used in the construction of one of the houses with the exception of the stair work and mantels. The contractor having failed to pay, a mechanic’s lien was filed against the property by the plaintiffs. The claim is resisted on the ground that in the contract between the owner and McDowell it was stipulated that neither the contractor nor any subcontractor or material man should file a mechanic’s lien for work or labor done or material furnished to any of the buildings covered by the contract, the right to file such a lien being expressly waived by the contract. This contract was duly filed in the office of the prothonotary of the county and is set up as a defense to the plaintiffs’ claim. It is held by the latter to be ineffective, however, for the reason that the property is incorrectly described in the contract and, therefore, did not give notice to the plaintiffs. The inaccuracy referred to is that the property is described as located on Clearview street, whereas it in fact is on Chislett street in the nineteenth ward of the city of Pittsburg. The fifteenth section of the Act of June 4,1901, P. L. 431, provides that the right to file a claim may be waived by agreement between the claimant and the party with whom he
The judgment is reversed and a v. f. d. n. awarded.