Sanders' Pressed Brick Co. v. Barr
1898 Mo. App. LEXIS 200
Mo. Ct. App.
1898
Check Treatment
Bond, J.

The plaintiff asks for a personal judgment against the general contractor one Barr, and a lien upon the property of the owner of a building on account of material furnished in its construction. The answer of the owner admitted the making of a building contract with Barr, in consideration of which it averred that the plaintiff agreed m writing with the owner that it would furnish all the bricks required for the work of the general contractor, and expressly stipulated for a release of “all mechanics’ lien, right and interest, which it (plaintiff) would otherwise have for any material which it might thereafter furnish.” The reply qf plaintiff alleged that it ratified a written contract made by one of its employees with the defendant owner “not to file any lien on said defendant’s property for the material to be furnished and expressly *385waiving a right to alien” and containing no mention of the consideration of said contract; that the consideration orally agreed upon by the parties was that the owner “should withhold from Barr, the builder, all of the contract price for building the house, after payment of other inchoate liens, and out of the same to pay plaintiff for its material before paying any such contract price to Barr;” that in pursuance of such agreement the materials were furnished and used; that the owner disregarded such contract and paid over to Barr, the-builder, the entire contract price, wherefore plaintiff averred there was a failure of consideration of the contract waiving the lien, which rendered it unavailable as a defense to this action. The court sustained the objection of the defendant owner to any testimony, whereupon plaintiff took a nonsuit, with leave, and its motion to set aside the same being overruled duly appealed to this court.

Question for review. *386Substitution of contracts. *385The only question for review is the ruling of the trial court upon the assumed verity of the foregoing allegations of the pleadings. The right to enforce a mechanics’ lien may be waived by contract. It is alleged in the answer, and more explicitly in the reply, that plaintiff entered into a written contract with the owner of the building, whereby such lien was expressly waived in advance for all material to be furnished to the building, which was to be paid for by the retention by the owner of a sufficient sum for that purpose out of the money due the general contractor. It was further pleaded that the material for which the lien is sought to be enforced in this action was subsequently furnished and received under the above contract, and that the owner did not carry out his contract with reference to the retention of money for its payment, but paid over the entire *386amount to the general contractor. An analysis of the contract pleaded shows that the consideration therefor to the owner was the release of any and all rights to a mechanics’ lien upon the proposed building; that the consideration to plaintiff was the making of a contract by the owner for the construction of a building and the reservation of enough of the contract price to pay for the material which plaintiff should furnish under a contract with the general contractor. These considerations were clearly sufficient to support the contract of waiver of a mechanics’ lien. If the right expressly waived by the plaintiff had been derived from a contract and not from a mere possibility of statutory application, still it would have been extinguished by the subsequent agreement to that effect between the parties under the well settled rule, that a valid contract made in substitution for one of a prior date, annuls the obligation of the former, and of itself furnishes a sufficient consideration for the release of the first agreement. Bishop on Contracts, sec. 68; Lancaster v. Elliott, 55 Mo. App. loc. cit. 255; Wirt v. Schuman, 67 Mo. App. 172; Pim v. Greer, 64 Mo. App. 175. This principle of the substitution of contracts, giving rise to the extinction of one by the execution of another, applies with equal, if not greater, force when the right of interest extinguished for the new agreement is neither vested, nor resting in contract, but is wholly contingent. According to the pleadings in this case at the time of its contract of waiver plaintiff had no right inchoate or otherwise to a mechanics’ lien; it had furnished no material; had no contract authorizing it so to do, nor had the owner entered into a general contract for the improvement. Plaintiff secured all this to be done in consideration of its contract of waiver and thereafter furnished the material, the payment for which the owner agreed to secure as above *387stated. That the owner failed to comply with its agreement in this respect, was undoubtedly a breach of contract, but that a mere breach of contract revives any prior rights which were waived or released by the terms of the contract, is a notion alike opposed to reason and authority. When a contract is broken either party may compel the other to respond in damages, but neither can treat the contract as a nullity and revive rights which were surrendered when it was entered into. The learned circuit judge evidently took this view of the responsibility of the parties under the allegations contained in their pleadings, hence there was no error in his exclusion of all testimony in the present suit to enforce a mechanics’ lien. The judgment overruling the motion to,set aside the voluntary nonsuit was correct, and it is affirmed.

All concur.