Gannon's Executors v. Central Presbyterian Church

Opinion by Mr. Justice Green, In this case the contract between the original contractor and the defendants contained the following stipulation, “ And provided further that before the last payment is made all releases must be properly signed by the parties furnishing labor and materials on the building, that he (the architect) has carefully examined the records and finds no liens or claims against said works, or on account of the said contractor; neither shall there be any legal or lawful claims against the contractor, in any manner, from any source whatever, for work or materials furnished on said works..” Of course there is nothing in this stipulation nor anywhere else in the contract, that would prevent the plaintiff, in his mere capacity of subcontractor, from filing a lien against the defendant for work or materials furnished by him. But the question in controversy arises upon a bond of indemnity made directly by the plaintiffs’ testator, Francis Gannon, and one Gilbert F. Meyer as sureties, and David M. White, the original con [245] tractor, as principal, the condition of which was “ that if the said. David M. White shall duly perform said contract then this obligation is to be void, but if otherwise the same shall be and remain in full force and virtue.” The literal performance of the original contract by the contractor, requires that there shall be no lawful claims against the contractor “ in any manner from any source whatever for work or materials furnished on said works.” If now the plaintiffs’ testator held a claim as a mechanic’s lien creditor against the building for work or materials furnished to the contractor and a recovery is permitted on it, his obligation as surety is broken and his estate must immediately make good the loss to the defendant. We held in Benedict v. Hood, 134 Pa. 289, confirmed in Iron Works v. O’Brien, 156 Pa. 172, that where the surety was himself a claimant to a lien on the building the lien could not be sustained because the suretyship must be deemed a waiver of any right of lien in favor of the surely. We have reviewed this subject and followed the same ruling in an opinion just filed in the case of Rynd v. Pittsburg Natatorium, No. 229 Oct. T., 1895, ante, p. 237. While there is some difference in the precise terms of the plaintiff’s contract of suretyship between this case and that, there is no substantial difference in the legal effect resulting from both. It is inconsistent that one who agrees to guarantee that there shall be no lawful claims for work or materials furnished to the original contractor, shall himself be permitted to occupy such a position. He cannotbe permitted to recover without violating his contract of suretyship, and he must therefore be held to have waived the right to file any lien in the face of his contract. The reasoning in the opinion just filed controls the decision of the present case and therefore need not be repeated. Judgment affirmed.