81 P. 813 | Or. | 1905
delivered the opinion of the court.
This is a suit to foreclose a mechanic’s lien. On March 25, 1903 the plaintiff agreed to furnish all the labor and material necessary for the construction and completion of a frame dwelling house, with cement basement, for defendant, according to certain plans and specifications, for the sum of $4,150. The contract stipulated that alterations and additions might be made to the building during the progress of the work when requested by the defendant, without in any way affecting the validity of the contract, but the fair and reasonable value thereof should be added to or deducted from the contract price, as the case might be.
The contract contained this clause:
“The party of the first part will save the party of the second part free and harmless from the payment of any and all liens which may be enforced on account of any material furnished or labor performed on said building and premises, or any part'of either thereof; and the said party of the second part further covenants and agrees that he will not allow any laborer’s, mechanic’s, materialman’s, or any lien or liens to be filed against the said building and premises, or any part of either thereof, and, further, that the said building and premises and every part of either thereof shall be at all times free from any and all liens.”
Certain alterations and changes were made, for which plaintiff charges $2,582.15. The defendant paid the contract price in full and $1,465.16 on the extra work, which he claims is a fair and reasonable value for all that was ordered or requested by him or done by his authority. The plaintiff filed a mechanic’s lien on the building for $1,117.05, the balance alleged to be due him, and subsequently brought this suit to foreclose it. The defendant pleads, among other matters, the covenant in the contract against liens as a bar to this suit, and the effect of such
The plaintiff testified that about the time the work was commenced the defendant said to him that he wanted a good building, and was willing to pay for it; but that whenever it was found necessary to make any changes or additions as the work progressed he consulted the defendant, “and he always directed me what to do.” The lien as filed affirms and is based upon the original contract. There is no room, therefore, for the contention that the original contract was abandoned, and a new one substituted ; and, as the plaintiff’s contract is a waiver of his right to file a lien, it follows that the decree must be reversed, and the complaint dismissed, and it so ordered.
REVERSED.