McMaster v. West Chester State Normal School

Opinion by Mr. Justice Dean, Davis Pennock was the principal contractor for the erection of an addition to the West Chester State Normal School. David McMaster, the plaintiff, contracted verbally with him to furnish the building stone, and delivered the same under his contract to the value of $2,461.90, and for this filed a mechanic’s lien. The contract of McMaster with Pennock was in the spring of 1892, and the stone was delivered under it between June 22d and September 27th of that year. Pennock’s contract with the Normal School was dated March 8, 1892, and by it he contracted to erect “ Recitation Hall,” for the price of $54,000, he to employ all workmen, and furnish all materials. In the contract was this covenant: “The contractor, for himself and his subcontractors, hereby waives and relinquishes any rights he or they may have under statute or act of the legislature to file any lien or claim against the owner, or the property owned by them as a corporation, and hereby agrees, for himself and subcontractors, to file no mechanic’s or other lien or claim for work and material furnished under this contract, and to save the owner harmless from all loss or damage by reason of anjr such lien or claim.” The defendant filed an affidavit of defence to sei. fa. on the lien, setting up the foregoing covenant as a protection, against liens by either contractor or his subcontractor. To this, was replied the act of June 8, 1891, declaring invalid this covenant against the subcontractor, because not consented thereto by him in writing. To this, was the rejoinder by defendant, that the act of 1891 was unconstitutional. On the rule for judgment notwithstanding the affidavit of defence, Hemphill, J., in a very able opinion, decided the act unconstitutional, and discharged the rule. This appeal is ruled by Waters v. Wolf, argued at Pittsburg November 8, 1893, in opinion filed this day [above p. 153]. For the reasons therein given, the decree in this case is affirmed, and the appeal is dismissed at costs of appellant. Mr. Justice Mitchell dissented.