137 P. 752 | Or. | 1914
delivered the opinion of the court.
Several points are urged on this appeal but may all be covered by three principal grounds of defense: (1) When an owner of a building makes a contract with a builder containing a stipulation that no mechanics’ liens shall be filed, such a stipulation by the contractor binds or precludes the laborers, materialmen or subcontractors from filing a lien for labor or material furnished and used in the construction of the building; (2) that the materials furnished by the plaintiff, namely, sand and cement, from which the cement blocks and the tile were constructed, were not lienable; (3) that the error of $606.10 in the statement of the account in the lien filed rendered the lien void. All other questions discussed by appellant in his brief are a part of or included in one of these three.
This is the holding in Norton v. Clark, 85 Me. 357 (27 Atl. 252), which is quoted with approval in Miles v. Coutts, 20 Mont. 47 (49 Pac. 393), in which it is said :
“We think * * the stipulation under discussion, ‘like all other stipulations, binds only those who made it or assented to it,’ is the only just and legal conclusion of which the case is susceptible. We are not prepared to hold, notwithstanding the majority of the decisions be that way, that rights conferred upon a person by statute may be contracted away by a contract made with others, to which he has never assented, and of which he has no knowledge. We think such a construction of our statute in relation to mechanics’ liens is unauthorized and would result in defeating the end had in view by its enactment by practically depriving the persons sought to be benefited of all protection under its provisions. ’ ’
And many other courts hold to the same rule. This is the holding in Cost v. Newport Builders’ Supply & Hdw. Co., 85 Ark. 407 (108 S. W. 509), reported in 14 Ann. Cas. 144, where the cases are collated. To the same effect are the courts of Iowa, Michigan, Missouri, Colorado, Ohio and Indiana.
In Gimbert v. Heinsath, Madden et al., 5 O. C. D. 175, 180, the court says:
“The statute seems to give importance to the contract only as giving consent of the owner that the improvement be made on his land. The statute gives to laborers and materialmen a direct lien, not through any rights the contractor may have, but direct upon the consent of the owner to the improvement on his land and the performing of labor or the furnishing of materials. This right is by virtue of the statute, and*481 the statute puts this right into * * every consent he gives for the erection of a structure for him on his land. If, then, the law makes these rights a part of the contract, as much as though written therein, what right have the owner and the contractor to strike them out and write the very opposite in without the assent of the laborer and materialman? This cannot be done without their assent. This being a positive statutory right, it cannot be taken from those who were intended to be benefited by it without their assent being clearly shown. To take from them this right by implication would be construing a remedial statute intended for their benefit most strongly against them. This cannot be done without violating an elementary rule of construction.”
But, on the other hand, a few states follow the holding in Pennsylvania, as stated in Schroeder v. Galland, 134 Pa. 277 (19 Atl. 632, 19 Am. St. Rep. 691, 7 L. R. A. 711), in which the contractor bound himself to erect and deliver over to the party of the first part, free from all liens and encumbrances, or any claims whatever that might arise, a certain building; it being held that a mechanic’s lien cannot be filed by a subcontractor for work or material furnished by him toward the erection of the building, and that the only connection between the owner and the subcontractor is through and by means of the contract between the owner and the contractor, so that the subcontractor is chargeable with notice of all its terms and stipulations and is bound thereby. To this effect are the cases in the District of Columbia, Wisconsin and Indiana. By this rule the laborer is not consulted, and he must accept the work under the conditions of the original contract, in the making of which he had no voice. It was to protect the workman against such conditions that our lien law was enacted. A lien is not given through the contractor by subrogation but is a direct
“It has been held that the express stipulation against liens will affect not only the contractor but all persons acting under him or depending upon the original contract as a basis for their liens, upon the principle that persons agreeing to furnish labor or materials to the original contractor do so with reference to such origh nal contract in subordination to its provisions.”
In the case of Geo. B. Swift Co. v. Dolles, 39 Ind. App. 653 (80 N. E. 678), the whole argument is based on that principle, citing the Pennsylvania cases as authority and also the case of Bowen v. Aubrey, 22 Cal. 566, which has been superseded by a later statute. See Whittier v. Wilbur, 48 Cal. 177, where it is said that the contractor and owner cannot deprive the material-man of his lien by introducing a stipulation into the
The decree is affirmed. Affirmed.