Morris v. Ross

Opinion by Me. Justice Geeen, The present proceeding is a scire facias upon a mechanic’s lien, filed by the plaintiff, as subcontractor, against the owner and contractor. The contract between the owner and contractor contained the following provision, “No lien shall be filed against the building by either the contractor or subcontractors.” This is an express, positive provision against any liens by either the-contractor or subcontractor, and is without any qualification or condition whatever. That it is binding on both the contractor and subcontractor ever since the case of Schroeder v. Galland, 134 Pa. 277, under all the decisions is not, and cannot be denied. It is not contended by the appellant that it would not be binding on the plaintiff if it stood alone in the contract. But it is argued with much force and earnestness, that because there is another clause in the contract which, if it stood alone, would be consistent with a right to file liens, there is a repugnance between the two clauses which avoids the positive prohibition against any lien. If the basis of the argument were sound it would not at all follow that the prohibitory clause would be avoided, but we do not consider that there is any repugnance between the two clauses. The contention of the appellant is-founded upon those decisions which had been made by this Court, where the contract did not contain any positive prohibition against any lien, but only a provision of a character similar to the one contained in the present contract, providing for a release of all liens. Where such was the case the inference is that the parties contemplated the filing of liens and provided for their release. Such an inference would naturally arise where the provision was of the character indicated, and provided only for the discharge or release of liens. Of this class of cases are Loyd v. Krause, 147 Pa. 402; Nice v. Walker, 153 Pa. 128; Evans v. Grogan, 153 Pa. 121; Murphy v. Ellis, 153 Pa. [244] 133; Smith v. Levick, 153 Pa. 522. In all of these, instead of there being an absolute prohibition of any lien there was substantially a provision for the extinguishment of liens. In none of these was there a positive prohibition. In the case of Life Association v. Jackson, 163 Pa. 208, where the contract was that the contractor should “keep the lot and building free from mechanics’ liens,” we commented upon the distinction between the cases thus, “ The cases of Evans v. Grogan, 153 Pa. 121, Murphy v. Ellis, 153 Pa. 133, Creswell Iron Works v. O’Brien, 156 Pa. 172, and Lucas v. O’Brien, 159 Pa. 535, are all cases in which the provisions of the contract were consistent with a privilege on the part of a subcontractor to file a lien, and contained nothing exclusive of such a right. They are, therefore, inapplicable to the present case where the express words of the contract are in entire hostility to any such right.” It is urged by counsel for the appellant that Creswell Iron Works v. O’Brien, 156 Pa. 172, sustains their contention. But we do not think so. There was no absolutely prohibitory clause in the contract in that case, as there is in this. The clause relied upon for the owner simply stipulated that the contractor should not suffer or permit a lien to be put or remain on the building, and added that any such lien or incumbrance until it is removed, should preclude any claim for payment under the contract. A further provision was made that the last instalment should not be payable until a full release of all claims and liens was furnished. The decision was put upon the ground that, “ The contract must be interpreted according to the intention of the parties, and the fair construction of this is that the intention was to protect the owner not by the absolute prohibition of liens, but by providing for their payment by the contractor and, in default of his doing so, the stoppage of his own pay. There is no sufficient language in the covenant to indicate that the parties meant, even if they knew of their power, to prevent absolutely the filing of any lien.” This citation sufficiently shows that the decision was inducéd by the absence of a positive stipulation prohibiting all liens. As the contract in the present case contains just such a stipulation it is not controlled by the ruling in the case cited. Inasmuch as the absolute prohibition in this case prevents a recovery, there is no difficulty in appreciating the force of the additional provision. It simply affords to the owner a means [245] of protecting bimself against any possible liens which may be filed by withholding from the contractor any money due him under the contract. Such a provision certainly cannot operate to deprive the owner of the benefit of the prohibitory clause. Judgment affirmed.