ON PETITION FOR REHEARING.
Both the appellant and the appellees herein have filed petitions for rehearing.
We agree with the appellee that there must be an end to litigation and that the decision by this court rendered narrows the field of controversy to the one question: Is the appellee, Williams, entitled to a lien? If she is not, no good purpose could be served by a re-trial of this case.
As was said in the case of Van Dyck Heating and Plumbing Co.
v. Central Iowa Bldg. Co. (1925), 200 Iowa 1003, 205 N.W. 650, 651: "A mechanic's lien is a right or privilege given to a 2. contractor to protect himself against loss for material and labor furnished. It is wholly a creature of statute. We know of no reason, and none has been urged, which would prevent the contractor waiving such a lien by contract so as to be binding in a contest between the property owner and the original contractor."
In the case of Pinning v. Skipper (1889), 71 Md. 347, 18 A. 659, 660, it was held that a waiver is not avoided by the owner's breach of the contract on the part of the owner. 3. That opinion goes on to say: "If a party expressly contracts that he will not do a certain thing, or will not set up a certain claim against the other contracting party or his property by resort to a certain process, it seems to us a legal anomaly
to say he can go on and do the thing, or avail himself of the forbidden process, because he has grievance against such other party on some other ground, or a claim which he can enforce against him by a different suit or process."
Speaking generally on the subject of waiver, 40 C.J. 313: "The principle that a person of full age and acting suijuris can waive a statutory or even a constitutional provision in his own favor, affecting simply his property and alienable rights and not involving consideration of public policy, applies to mechanic's liens, and when the lien has been once waived it cannot afterward be revived in the absence of an express agreement to that effect with the owner," citing the following authorities: Blakeley v.Moshier (1892), 94 Mich. 299, 54 N.W. 54; Au Sable River BoomCo. v. Sanborn (1877), 36 Mich. 358; Center Creek Mining Co.
v. Coyne (1912), 164 Mo. App. 492, 147 S.W. 148; Whitmer v.Arthur (1921), 23 Ohio N.P. (N.S.) 481; Collinsville Mfg. Co.
v. Street (1917) (Tex. Civ. App.), 196 S.W. 284, 287 (cit. Cyc.).
The case of Cummings v. Broadway-94th St. Realty Co., Inc.,et al., from the Court of Appeals of New York (1922), reported in 233 N.Y. 407, 135 N.E. 832, 833, held where a contractor performing work or furnishing materials in the construction of a building had expressly agreed not to do so, he had no right to file a notice of a lien. In speaking of a condition similar to the contention of the appellees in this case and criticising the case of Kertscher Co. v. Green (1912), 205 N.Y. 522, 99 N.E. 146, Ann. Cas. 1913E, 561, upon which appellees rely, and also of an authority of Greenfield v. Brody (1912), 204 N.Y. 659, 97 N.E. 1105, the court in the case of Cummings v.Broadway, etc., supra, speaking of the other two cases, which appear to be in
some conflict, says: "The decision was placed upon the provisions of the contract there involved, the court reaching the conclusion that the agreement not to permit liens to be filed referred only to liens filed against the contractor by workmen, subcontractors or materialmen," but in the case where the question before us is met, the court says: "No good reason can be suggested, however, why a contractor cannot, for a valuable consideration, waive the provisions to the statute giving him the right to file notice of lien." And further, "The doctrine of the Kertscher case ought not be extended, but should be confined to what was there decided." And in that case, as in this case, it was held that the contractor was entitled to a personal judgment, but not the right to hold a lien.
For us to hold otherwise than was held in the original opinion and say that the failure of the owner of a piece of property to carry out his part of the contract would revive a lien 11. would be to hold that there could be no waiver of a lien. If the contractor fulfilled his part of the contract and made the payments as agreed, no right to a lien would exist in the first place, so that when a contractor waives his right to a lien he thereby agrees to rely upon his right to obtain a judgment at common law under the contract in case the owner of the property defaults.
The petitions of the appellant and the appellees for rehearing are each denied.
Curtis, J., not participating.