Pinning v. Skipper

Miller, J., delivered the opinion of the Court. The Mechanics’ Lien Law provides that “no person having such lien shall he considered as waiving the same by granting a credit, or receiving notes or other securities, unless the same he received as payment, or the lien he expressly waived.” Code, Art. 63, sec. 3. It is conceded that under this provision the lien may he waived by a special contract inconsistent with its existence or enforcement. Such a contract is, in effect, an express waiver of the lien.

The lien claim in this case, amounting to $>991.56, was filed by the appellants against twenty-two brick houses built on contiguous lots of which the appellee was the owner or reputed owner and builder. The itemised ³⁴⁹ account is for sand used in laying the bricks, for digging the foundations and cellars, grading the yards and pavements of these houses, and for grading under back buildings. It appears from the record that these lots owned by the appellee and on which he intended to build these and other houses, contained a large quantity of valuable sand, and on the 21st of July, 1887, before any of the work was begun, he and the appellants entered into a special written contract. By this contract the Pinnings agreed, 1st, to do all the excavation necessary for the erection of eighty-nine bouses, more or less, on these lots, to grade the yards aud alleys in rear of the same, to grade Castle street from Chew street to the alley in the rear of the houses to be erected on Eager street, and to furnish so much good sharp sand as may be necessary for the brick work and plastering these eighty-nine houses at 45 cents per thousand bricks, said 45 cents to include the plastering sand; 2nd, to do all this work and furnish this sand for the privilege of removing and selling the surplus sand for their own use; 3rd, not excavate for sand within ten feet of the rear wall of or where any of these houses are intended to be built; 4th, to excavate the cellars and foundations as Skipper may require the same to be excavated, to grade the yards by the time the buildings are completed, and to supply the sand for the buildings as Skipper may require it; 5th, that should they fail to comply with and fulfil their part of this contract, Skipper should have the right to employ other persons to complete the work, and in that case all the work they may have done shall be forfeited to Skipper as liquidated damages; 6th, they agree to give to Skipper a good lien bond as a bar against liens upon said houses, or either of them, for work done or material furnished or for labor or hire; 7th, to take a house or houses in full payment for the sand delivered as above mentioned; and should there ³⁵⁰ be any balance clue to Skipper they agree to pay the same to him.

Skipper on his part agreed to give the Pinnings the surplus sand in consideration of their performance of the above work, and to give a good and sufficient deed of assignment to them for the house or houses above mentioned. At the same time the Pinnings gave to Skipper their bond, with a surety therein, to which a copy of this contract wag attached, in the penalty of $1000, conditioned for the faithful performance on their part of the terms and conditions of this contract. There may be some difficulty as to the construction and effect of this contract in other respects, hut we find none in determining that it is utterly inconsistent with the enforcement of a mechanics' lien against either of these houses by the appellants. The stipulation that they would give a bond “as a bar against liens upon said houses, or either of them," and the giving of the bond conditioned for the faithful performance of their part of the contract, clearly, in our judgment, constitute in law a waiver of the lien sought to be enforced in this suit.

The filing of this lien claim was a breach of the contract, and consequently of the condition of the accompanying bond. This we take to be too plain to admit of discussion. It is said, however, that the appellee has violated his part of this contract, and therefore the appellants are not precluded from filing and enforcing their lien claim. The case mainly relied on in support of this contention is Trustees of the German Lutheran Church, &c. vs. Heise & Co., et al., 44 Md., 453 ; but in our opinion, that case sustains no such proposition.

There the trustees of the church entered into a contract with Siegman and Jones, the contractors, to build the church, furnish all materials and work therefor, and to deliver the same to the trustees “free from all claims, liens and charges what ³⁵¹ soever,” and Frederick and Herman Wehr, with others, became sureties on a bond for the faithful performance of the contract by the contractors. Various lien claims were filed by parties who had furnished materials to the contractors, among whom were the Wehrs, who filed a bill in equity to enforce their claim by a sale of the