224 Pa. 437 | Pa. | 1909
Opinion by
An interesting question of practice has been suggested by the learned counsel for appellee in this case, but it is unnecessary to rest our decision on this ground because we cannot accept as sound the position of appellant on the real question involved in this controversy. The question here arises under the mechanic’s lien Act of June 4, 1901, P. L. 431. It is whether a subcontractor whose agreement to furnish materials and labor made after a conveyance to a new purchaser, is bound by the contract between the original owner and the contractor, filed of record and containing a waiver of liens. The owner at the time the building contract was entered into, in order to protect himself against liens, caused to be inserted therein a waiver clause and then filed this agreement in writing of record. Subsequently and while the building was being constructed, the owner conveyed the property to the appellee, the present owner. The contention of appellant is that under these circumstances appellee cannot claim the protection of the waiver clause in the building contract. Two of our recent cases are relied on to sustain this position. They are Wyss-Thalman v. Beaver Valley Brewing Company, 216 Pa. 435, and Pagnacco v. Faber, 221 Pa. 326. This court did not intend to announce any such doctrine in these cases, nor is anything said in those opinions reasonably susceptible of the meaning now attempted to be taken from what was there written. These cases recognized the right of the contracting parties, or of subsequent parties standing in the place of the original parties, to make a new contract binding upon them, containing a covenant not to file a lien, or by failing to provide
Order of the court below discharging rule for judgment for want of a sufficient affidavit of defense affirmed at the cost of appellant.