Blaisdell v. Dean

Opinion by

William W. Porter,

The Act of June 26,1895, P. L. 36.9, provides that the owner of property may protect himself against the filing of a mechanic’s lien by a contractor, or by any subcontractor, under a contract to build, by filing with the prothonotary the Avritten contract in which it has been agreed that no lien shall be filed, or by filing a written stipulation, separate and apart from the contract. I n the present case the owner entered into a written contract for the erection of a building, in which contract was contained a stipulation that no liens should be filed. He did not file with the prothonotary the whole contract, but a separate writing, signed and sealed by him and by the contractor. In the latter the original contract is recited to have been executed and to contain the necessary agreement against liens. By the stipulation it was further agreed that the contract together with the stipulation was executed before work was authorized to commence under the contract.

It will be observed that this separate stipulation is an original document, and not a copy. It furnishes record notice to all subcontractors of the existence and terms of the stipulation against liens contained in the original contract. It gives to them all the information contemplated by the act. It thus fulfils all that is required by the spirit of the act. The lien, filed by the subcon trac tor in the face of such a document of record, was properly stricken off.

We are led to observe further, however, that the better practice in such a case would be not simply to recite in the separate stipulation that the original contract contains a clause providing that no liens shall be filed, but to execute a separate and distinct agreement, with the provision repeated so that the separate stipulation may comply with the strict letter of the statute. For the reasons above given, we affirm the judgment of the court below, in this case.

Judgment affirmed.