Scheid v. Rapp.
A covenant by a contractor not to suffer or permit any mechanics’ lien to be filed, for a certain period after the completion of a building, will operate as a waiver of the right to file, or to authorize to be filed, a mechanics’ lien in his own favor.
May 14, 1888.
Error, No. 87, July T. 1887, to O. P. Lancaster Co., to review a judgment on a verdict for plaintiff on a scire facias sur mechanics’ lien, by H. Rapp against Yalentine Scheid, at Sept. T. 1885, No. 72. Trunkby, J., absent.
The evidence was to the following effect, at the trial, before Patterson, J.:
By a written contract' the plaintiff agreed to erect and complete a building for the defendant by Aug. 1, 1884, for $3,090, payable $300 every two weeks during the intervening five months. He also covenanted “for himself, his heirs, executors and administrators, that he will not suffer or permit to be filed in the court of common pleas of Lancaster Co., any mechanics’ lien or liens against the said building for the period of six months after its completion.”
At the trial, the defendant tendered to the plaintiff $329, without admitting the right of the plaintiff to file the lien.
The defendant objected to the reception of any evidence on the part of the plaintiff in this proceeding, the contract, a copy of *431which was attached to the lien filed, providing that no mechanics’ lien should be filed.
The court: “ Objection overruled. It is not a case parallel with Long v. Caffrey, 93 Pa. 526. Exception.” [1]
After the testimony was closed, by leave of court, all the pleas but the plea of nil debet, were withdrawn by the defendant. The pleas originally entered, as printed in the paper book of plaintiff in error, were nil debit, payment, payment with leave, set off and no lien.
The defendant presented the following point:
“ By the contract entered into for the erection of the building, a copy of which is annexed to the claim filed, the plaintiff agrees that no mechanics’ lien should be entered against the said building; he is therefore estopped from filing a lien, and cannot recover in this case. Ans. That question has been before us, and the court thinks he can recover in this case. Therefore, we negative this point. We decline to affirm this point. We think this suit can be maintained under the language of that contract. And therefore you will render your verdict in favor of the plaintiff for the sum of $478.27.” [3]
Yerdict and judgment for plaintiff for $478.27.
The assignments of error specified, 1, the rulings on the evidence, quoting the bill of exception ; 2, the action of the court in admitting any evidence on the part of plaintiff in this proceeding after the reception of the lien and contract in evidence; 3, the answer to defendant’s point, quoting it.
J. Hay Brown and John A. Coyle, for plaintiff in error.
This case is ruled by Long v. Caffrey, 93 Pa. 526. See also Given v. Bethlehem Church, C. P., 11 W. N. C. 371.
Neither the technical definition of the word “suffer or permit,” nor their accepted meaning in everyday use, confines their operation to the mere allowance or toleration of the acts of others, but extends it to the actual consent to, and the authorization of, the doing an act by or for the covenantor himself. Com. v. Curtis, 9 Allen, 271; Cowley v. People, 83 N. Y. 471; Hobson et al. v. Middleton, 6 B. & C. 295, 303 ; Selleck v. Selleck, 19 Conn. 505.
S. H. Reynolds and B. F. Davis, with them W. H. Roland, for defendant in error.
In Young v. Lyman, 9 Pa. 449, there was a clause as follows: “All materials to be paid for, four months after the completion of the job, and Young to give security in $500 that no liens shall be entered on the houses.” Counsel for defendant in error in that case contended: “ There is an express stipulation not to file a lien.” Rogers, J., in speaking of the stipulation, said: “ It is that no other person, or sub-contractor shall file a lien.” And the supreme court held, that, in the absence of such stipulation, the lien filed by the contractor was valid.
Given v. Bethlehem Church does not apply, because the lien *432there was filed by a sub-contractor, and the court merely held that the sub-contractor could not file a lien.
In Pennock v. Brown, C. P., 14 W. N. C. 43, on a rule to strike off a mechanic’s lien, it appeared that the lien was filed by the contractor against the owner. The report of the case shows the contract contained the following clause, viz.: “ The balance . . . shall be due ” the plaintiff after the completion of the new building, “on the production and delivery of a full and complete release . . . of all liens and claims whatsoever.” The court said the case should go to the jury and discharged the rule.
In Mulrey v. Barrow, 11 Allen, 152, it was held: “A lien may be enforced for labor performed in the erection of a house, under the employment of one who has agreed with the owner of land to erect the house thereon, and to pay and discharge all claims for labor and materials furnished, and used in the erection thereof, so that there shall be no liens upon the premises.” In that case, one of the parties to the agreement and the representatives of the other were the parties to the lien.
In all the eases considered, when it was stipulated not to file liens, so far as we have been able to ascertain, it has been held, unless the agreement specifically includes the contractor as a person who shall not file a lien, as in Caffrey v. Long, that the stipulation did not bind the contractor not to file a lien himself, but simply held him to keep material-men and sub-contractors from filing liens.
The plaintiff in error entered the plea of tender, and also produced the money in court and made a tender of it. Thereby he is estopped from contesting the validity of the lien. In Bailey v. Bucher, 6 Watts, 74, it was held: “ The plea of tender and paying the money into court is such an admission of the plaintiff’s cause, as stated in his declaration, as precludes an objection to the form of action.” To the same effect, see 1 Tidd’s Pr., 624-625 ; Johnston v. Columbian Ins. Co., I Johnson, 315 ; 1 T. & H. Pr., § 505; Broadhurst v. Baldwin, 4 Price, 58; 2 Parsons on Contracts, 638, 5th ed.; Berkheimer v. Geise, 82 Pa. 64; 1 T. & H. Pr., § 504.
The proceedings of the court below should not be reversed, for, in the language of Nellis v. Reiter, 2 W. N. C. 203, “substantial justice was done.”
In Rinehart v. City of Lancaster, 18 W. N. C. 364, the supreme court, while affirming an assignment of error, refused to reverse, because there was not sufficient merit in the case on the facts as presented. See, also, Bentz v. Rockey, 69 Pa. 80.
Oct. 1, 1888.