173 Pa. 237 | Pa. | 1896
Opinion by
There is nothing in the original contract between Kountz Bros, and the defendant that would prevent the plaintiff from filing his lien and recovering upon it. The ninth article of the agreement provides that, “ Before final settlement the parties of the second part shall furnish the party of the first part a release of liens properly signed and attested to by all parties that would have a legal right to file liens against said building.” Instead of this being a covenant against liens it is a full recognition of the right to file liens by anybody having furnished labor or materials. But the plaintiff entered into another and entirely different contract directly with the defendant, and the question at issue arises upon that contract. He joined as surety in a bond with Kountz Bros, to the defendant the condition of which was, “ that if the said principal obligors shall well and faithfully perform said contract and complete and deliver said building to said obligee, its successors or assigns on or before the first day of March, 1890, free from all charges, claims, liens, mechanics’
If the plaintiff can recover upon a mechanic’s lien against this building, the condition of the bond would be violated, and he would thereupon become bound upon a breach of condition to reimburse to the defendant whatever the defendant was obliged to pay him as a mechanic’s lien creditor. He voluntarily made himself a surety for the original contractors that he would indemnify the defendant against “all charges, claims, liens, mechanic’s liens, or any incumbrance or debt in the nature of a. lien or charge, of any kind whatsoever.” This is not a mere undertaking not to file a lien, but a contract by this particular-plaintiff that the building shall be delivered to the defendant free of all charges, claims, liens, mechanics’ liens or any incumbrance or debt in the nature of a lien or charge of any kind. To perform this contract there must be no debt, charge or lien of any kind at the time of delivery. How then can the plaintiff have a lien himself without being bound to remove it, just, as much as if it were held by a stranger ? But if he is bound to remove it he certainly cannot be permitted to enforce it.
This very question was decided in Benedict v. Hood, 134 Pa. 289, where the plaintiff with others joined in a guaranty that, the original contractor would faithfully perform all the covenants of his contract with the owner. One of those covenants, was that the contractor would not permit any person to file a. lien, and that the last installment of the contract price should not be payable until after a full release of all liens had been delivered. Wé held in that case that the words were sufficient, to prevent the filing of a lien by any one. That part of the decision has been since overruled, but we also held that the plaintiff was disabled from filing a lien because of his liability on the guaranty, and that he thereby waived his right to any lien. In the case of Cresswell Iron Works v. O’Brien, 156 Pa. 172, in which Benedict v. Hood was overruled as to the sufficiency of the words to create a positive covenant against all liens, we nevertheless held that the case was rightly decided on the ground that the plaintiff, being a surety for the faithful performance of the contractor’s agreement could not file a lien himself. Our*
It will be observed that the present case is much stronger on this point than Benedict v. Hood. For here the contract is not a mere guaranty that the contract of the principal should be faithfully performed, in general terms, but is a direct specific contract made by the plaintiff himself with the defendant that the building should be delivered to the defendant free of all liens, claims, debts or charges in the nature of liens of any kind whatsoever. It is not a question whether this particular claimant would be debarred from filing a lien as a subcontractor by force of the terms of the contract between the contractor and the defendant, but whether he may himself become a lien creditor in the face of his contract of suretyship that the building should be delivered free of all liens or charges. The distinction is broad and perfectly clear. When the necessary legal effect of his contract as a surety is that he would be bound to discharge a lien in his own favor the moment it was obtained, he must be held to have waived all right to file such a hen. For these reasons we must reverse the judgment on the first and third assignments of error. The other assignments become of no importance.
Judgment reversed.
