Opinion by
Postee,, J.,
The defendant entered into a written contract with Saar & Rosser, builders, to furnish the material for and construct a house upon land of which he was the owner. The contract contained a stipulation against liens, and was duly filed in the office of the prothonotary. Saar & Rosser ordered of the plaintiff company certain material, and one load of lumber was delivered, when the officers of the company discovered that the contract containing the stipulation against the filing of liens had been filed, and thereupon refused to furnish further materials. The officers of the plaintiff company notified the defendant, the owner, that they would not furnish to Saar & Rosser the material necessary for the construction of the building. The plaintiff offered testimony which if believed established that the defendant entered into an agreement with the representatives of the plaintiff that the latter should furnish the material for the construction of the building, as ordered by Saar & Rosser, and charge it to him, the defendant, “ on the credit of the building.” The plaintiff company furnished material, as ordered from time to time, which was actually used in the construction of the building, which they charged to the defendant, and for the balance remaining unpaid upon which they filed this lien. The learned judge of the court below was of opinion that the agreement between the plaintiff and the defendant did not constitute a new contract, nor was it a sufficient waiver of the covenant against liens contained in the contract between the defendant and Saar & Rosser, and accordingly gave binding instructions to the jury to find a verdict in favor of the defendant. The plaintiff appeals and assigns for error this instruction of the court.
The testimony produced by the plaintiff, if true, established a new and independent contract. It was not an agreement to *202pay the debt of Saar & Rosser, or to pay in case the principal contractors failed to do so, but a direct, original undertaking, that the material should be furnished upon the sole credit of the owner and the building. It was not dependent upon the state of the accounts between the defendant and Saar & Rosser. True it is that.,Saar & Rosser were to designate the materials to be furnished, but in doing so they were acting as the agents of the owner, expressly so constituted by the agreement into which the latter had entered with this plaintiff. The defendant may in the making of this contract have done something which would tend to create confusion in his accounts when it came to settling with Saar & Rosser, but he was competent to act for himself and had full power to make the contract which the witnesses called by the plaintiff testified that he entered into. The testimony was conflicting but it was on each side direct, clear and positive, and the disputed question of fact was for the jury to determine. The testimony produced by the plaintiff established a contract to which Saar & Rosser were not parties; if that testimony is true there was no contractual relation between that firm and this plaintiff, and the defendant was so far as this plaintiff was concerned both owner of and contractor for the building. This being the case, there was no necessity for a waiver, by the defendant, of the protection of any covenant against liens, for no such covenant having any connection with the new contract was in existence. The power of an owner to make contracts is not exhausted when he has with one party entered into an agreement which contains a covenant against liens; he may make new contracts with other parties, and if he does so may be called upon to perform. The reasoning in the opinion of President Judge Rice, in Waters v. Wolf, 2 Pa. Super. 200" court="Pa. Super. Ct." date_filed="1896-07-16" href="https://app.midpage.ai/document/waters-v-wolf-6271596?utm_source=webapp" opinion_id="6271596">2 Pa. Superior Ct. 200, leads to the conclusion that the present case ought to have been submitted to the jury, and the questions here involved were, by the Supreme Court, directly determined in accordance with the contention of the appellant in Camden Wood Turning Company v. Malcolm, 190 Pa. 62" court="Pa." date_filed="1899-02-20" href="https://app.midpage.ai/document/camdem-wood-turning-co-v-malcolm-6245180?utm_source=webapp" opinion_id="6245180">190 Pa. 62. The weight of the evidence may have been in favor of the defendant, but it was for the jury to pass upon the conflicting testimony.
The judgment is reversed and a venire facias de novo awarded.