Dersheimer v. Maloney

Opinion,

Mr. Justice Sterrett:

The lien in question was filed by plaintiffs against the building erected by Thomas J. Nichols, one of the defendants, for Thomas Maloney, the other defendant, under a written contract the seventh clause of which provides, inter alia, that “ the owner will not in any manner be answerable.....for any of the materials or other things used and employed in finishing and completing the said works,” etc. In the second clause, specifying the terms and conditions on which payments on account of the work shall be made as it progresses, it is provided, among other things, that there shall not “ be any legal or lawful claims against the contractor in any manner, from any source whatever, for work or materials furnished on said works.”

On behalf of defendant Maloney the court was requested to charge:

“1. If the jury believe Dersheimer & Griffin sub-contracted with Nichols to furnish a part of the materials for the building, and that Nichols-had contracted with Maloney to build a house at a price agreed upon between them, and that Maloney, under the contract, was not in any manner to be answerable or accountable for any of the materials or other things used and employed in finishing and completing the building, Dersheimer & Griffin cannot maintain a lien against Maloney’s building for materials furnished by them under the contract with Nichols.

“ 2. Under the law and the evidence, the verdict must be for Maloney, the defendant.”

These points were affirmed, and a verdict rendered accordingly, and that action of the court constituted the two specifications of error before us.

If the provisions contained in the agreement between the owner and the contractor amount to an express or necessarily implied covenant that no lien shall be filed against the building, the plaintiffs, on the authority of Schroeder v. Galland, 134 Pa. 277, are bound thereby. As was held in that case, the only connection between the owner and the sub-contractor being through and by means of the contract between the owner and the principal contractor, the sub-contractor is chargeable with notice of all its terms and stipulations, and is bound thereby. He cannot have the benefit of the builder’s contract without accepting its conditions. While the language of the contract in that case differs from that employed in the agreement before us, we have no doubt the parties intended to provide against the filing of liens; and while they have not done so in express terms, we think that by fair intendment the words used necessarily include both liens and personal liabilities. The owner is not to “ be answerable or accountable.....in any manner ” for any of the materials, etc. If this is not an implied covenant against filing liens, then the owner is “ answerable or accountable ” in at least one mode or manner; not liable in person, it is true, but in property, which is equally efficacious. Again, in the second clause, the inhibition is: “Neither shall there be any legal or lawful claim against the contractor in any manner, from any source whatever, for work or materials.” An observance of this provision would have excluded the conditions on which alone the right to file a lien is based. We cannot say there was any error in the rulings complained of, and therefore

The judgment should be affirmed.