Sullivan v. Hancock

Opinion by

Rice, P. J.,

If the clause in the contract on which the defendant relies were amended by substituting tbe word “ put ” for tbe word “ found,” so as to make it conform to the original draft prepared by bis counsel, it would be in the precise language tbe parties intentionally adopted to express their agreement, and would be tbe same, with tbe exception of one or two immaterial verbal differences, as tbe provision construed in Cresswell Iron Works v. O’Brien, 156 Pa. 172, and Lucas v. O’Brien, 159 Pa. 535. “ The contract,” said Justice Mitchell in tbe first mentioned case, “must be interpreted according to tbe intention of tbe parties, and tbe fair construction of this is that tbe intention was to protect the owner, not by the absolute prohibition of liens, but by providing for their payment by tbe contractor, and in default of bis doing so tbe stoppage of bis own pay.”

There was an additional clause in tbe contract construed in that case, which, it is argued, distinguishes it from tbe present. Whether or not it is in the contract referred to, but not set forth at length, in this affidavit of defense, as it ought to have been, is left wholly to inference. But assuming that it is not, tbe result must be tbe same. This additional clause did not make tbe intention of tbe parties as to tbe filing of hens clearer than it would have been without it. Tbe construction of tbe two contracts must be tbe same. There is nothing to distinguish them: Lucas v. O’Brien, supra.

Tbe construction, known only to themselves, which tbe owner and tbe contractor placed on tbe language deliberately chosen to express their intention, cannot be set up to defeat tbe hen of a material-man. Granted that they need not have put tbe stipulation concerning hens, in writing, yet having done so, be was only affected with notice of what tbe writing contained. He bad a right to presume that it fully expressed their intention. He could not be debarred of his hen except by an express covenant or by one so clearly implied that be could not fail to understand it. Hence it is no defense to allege that in tbe preliminary negotiations the parties agreed that a clause prohibiting hens should be inserted in tbe contract, if tbe clause actually inserted did not have that effect.

Judgment affirmed.