Phelps v. Burns

Opinion by

William W. Porter, J.,

The Act' of June 26, 1895, P. L. 369, enables the owner of property to protect himself against mechanics’ liens either by filing with the prothonotary the written contract for the building, containing a stipulation that no lien shall be filed, or by filing such a written stipulation executed separately from the contract: Blaisdell v. Dean, 9 Pa. Superior Ct. 639. Here, the original building contract dated July 27, 1899, was filed the following day with the prothonotary and contained this provision: “No lien shall be filed against the building either by the contractor or subcontractors nor by any of the material'men or workmen.” It thus appears that the original contract containing an adequate stipulation against liens was filed with the prothonotary within the time required by the act.

The appellant urges that the written document filed should on its face show that the stipulation against liens was executed prior to the giving of authority to proceed with the work. The act contemplates, as we have seen, the filing either of the original contract or of a separate stipulation. Some of the legislative requirements apply to both courses of action. But the provision which requires that the stipulation against liens shall be written and executed prior to the giving of authority to the contractor to proceed with the work, applies only to the case of the filing of a separate stipulation. Here, the contract itself was filed, and no recital of the fact that it was executed prior to the time of the giving of authority to proceed with the work was needed. Furthermore, on the face of the contract as filed, it appears that at its date the obligations were first assumed to pay the price and to do the work contracted to be done.

We do not say that the introduction of a clause, even in the original contract, showing that the stipulation against liens was made before authority to do the work was given, would not make a better record, but we are not prepared to sustain a lien confronted by a covenant clear in its terms and filed pursuant to the stipulation of the act of assembly.

The order is affirmed.