184 Pa. 241 | Pa. | 1898
Opinion by
The present proceeding is a scire facias upon a mechanic’s lien, filed by the plaintiff, as subcontractor, against the owner and contractor. The contract between the owner and contractor contained the following provision, “No lien shall be filed against the building by either the contractor or subcontractors.” This is an express, positive provision against any liens by either the-contractor or subcontractor, and is without any qualification or condition whatever. That it is binding on both the contractor and subcontractor ever since the case of Schroeder v. Galland, 134 Pa. 277, under all the decisions is not, and cannot be denied. It is not contended by the appellant that it would not be binding on the plaintiff if it stood alone in the contract. But it is argued with much force and earnestness, that because there is another clause in the contract which, if it stood alone, would be consistent with a right to file liens, there is a repugnance between the two clauses which avoids the positive prohibition against any lien. If the basis of the argument were sound it would not at all follow that the prohibitory clause would be avoided, but we do not consider that there is any repugnance between the two clauses. The contention of the appellant is-founded upon those decisions which had been made by this Court, where the contract did not contain any positive prohibition against any lien, but only a provision of a character similar to the one contained in the present contract, providing for a release of all liens. Where such was the case the inference is that the parties contemplated the filing of liens and provided for their release. Such an inference would naturally arise where the provision was of the character indicated, and provided only for the discharge or release of liens. Of this class of cases are Loyd v. Krause, 147 Pa. 402; Nice v. Walker, 153 Pa. 128; Evans v. Grogan, 153 Pa. 121; Murphy v. Ellis, 153 Pa.
Judgment affirmed.