Burger v. S. R. Moss Cigar Co.

Citations

• 225 Pa. 400
• 74 A. 219
• 1909 Pa. LEXIS 673

Syllabus

<p>Mechanic’s lien — Agreement not to file lien — Signature to agreement.</p> <p>1. An agreement between contractors for a building, as parties of the first part, and owner, after reciting the original building contract provided as follows: “ Now, for a valuable consideration, the said parties of the first part agree that no lien or claim of mechanics or material men or of any other nature whatsover, shall be filed by anyone whatsover, excluding the contractor himself, the parties of the first part hereto, or any subcontractor or material men, against the building herein mentioned and contracted to be erected on the premises above described.” The agreement was separate from the original contract and was duly filed in the prothonotary’s office. Held, that the agreement was a valid contract by which every person entitled by law to file a mechanic’s lien was prohibited from doing so.</p> <p>2. The purpose in the use of the language of the latter part of the clause beginning with the word “excluding” was not to limit or defeat the general prohibition against liens in the former part of the agreement, but to make more clear that no one, not excepting the parties named, should file a claim against the property.</p> <p>3. An agreement not to file mechanics’ liens signed by the contractor although not signed by the owner, and duly filed in the prothonotary’s office is sufficient notice to subcontractors and material men.</p> <p>4. A mechanic’s lien will not be stricken off which is regular on its face for matters dehors the lien.</p> <p>5. An agreement not to file mechanics’ liens, which is not a part of the original building agreement involves a matter of defense which can only be set up as a defense to a scire facias issued on the lien. If the lienor does not issue a scire facias, the owner or contractor may require him to do so, and thus secure an opportunity to set up the defense; but it is error for the court to strike off the lien merely because of the existence of a