Long v. Caffrey

Mr. Justice Mercur

delivered the opinion of the court, May 3d 1880.

This was a scire facias on a meohanie’s lien. The work was done and the materials furnished, for a gross sum, under a written agreement between the parties. The payments were to be made in several instalments, the last one some months after the completion and acceptance of the house. The contract contains this stipulation, “ And it is further agreed, that no mechanic’s or other lien shall be entered against said building by the said Long, or the material, contractor or workmen; and it is further agreed, that if any such lien be entered, that the said Long shall pay all costs and fees at his own proper expense, without recourse or claim against said Caffrey on account thereof; and that if said Caffrey is farced to pay the amount of any of said liens or costs, he shall have the right to recover the amount thereof from said Long.”

There is nothing doubtful or obscure in this clause. It is cleai and specific. Why shall not full effect be given to it ? It is in regard to a subject-matter that the parties had an undoubted right to contract!. The parties recognised it as an important matter in the contract. The defendant wished to be protected against all such liens. The plaintiff expressly agreed not to file one himself, and to protect the defendant against all filed by others. The right of lien which the law would have given to the plaintiff he waived, and estopped himself from asserting, to the prejudice of the defendant.

The contract contains further evidence, that the plaintiff was to rely on personal and collateral security, without lien. Thus it was agreed, that on the completion of the building, the defendant should cause it to be insured to an amount at least equal to the unpaid instalment, and assign the policy to the plaintiff as collateral security therefor. The different parts of the contract are separate and independent covenants, and we see no reason why the one not to file a lien shall not be enforced. The learned judg'e was therefore right in charging that the plaintiff could not recover.

Judgment affirmed.