Willison v. Douglas

Yellott, J., delivered the opinion of the Court. The appellant filed a hill in the Circuit Court for Alleghany County, for the enforcement of a mechanics’ lien. ¹⁰⁰ No question in relation to the regularity of these proceedings has been presented. If it be conceded that the plaintiff ever had any lien which could be enforced, the mode of procedure has been in strict conformity with the requirements of the statute. That the materials for the erection of the building, -were furnished, is not denied; but the question presented for determination is in relation to the proper construction and effect to be given to certain agreements entered into by the parties interested, some months anterior to the time when this lien claim was filed.

These proceedings were commenced on the 29th day of December, 1882. The claim is for materials furnished between the 25th day of May, 1882, and the 22nd of September in the same year. On the 3rd day of June, 1882, which was very shortly after the first delivery of materials, an agreement under seal was executed by Schofield the contractor, by Willison the plaintiff, who furnished the lumber, and by one Brady, jointly. By the terms of this contract the building was to be erected, in conformity with the specifications, for the sum of $1493. ' These specifications, under seal, were signed by the parties aforesaid, who, at the same time, executed a bond, by the conditions of which they were to “save the said John O. Douglas harmless from any and all liability for work and labor done upon, or materials furnished for, said building beyond the sum of $1493.” Douglas then signed an agreement to pay $500 on delivery-of the lumber, and another sum of $500 on completion of outside building, and to execute a mortgage in favor of Willison for $493, bearing interest at five per centum per annum, and payable in two years.

The proof shows that one thousand dollars was paid by Douglas in cash, in accordance with the terms of the agreement, and the plaintiffj Willison, admits in his testimony that he agreed to receive from Douglas a mortgage as security for the balance amounting to $493. It is ¹⁰¹ shown by the evidence that Douglas afterwards offered to execute the mortgage, and that Willison refused to accept it on the ground that Douglas only had an equitable title to the property; and that Douglas then offered to pay the sum intended to be secured by the mortgage in cash, which offer was rejected by Willison. It is also proved that Douglas has already paid other lien claims on the said building, amounting to $395.42, under a decree of the Circuit Court for Alleghany County. As the plaintiff had entered into a bond to save the defendant harmless from all sums in excess of $1493, it'follows that, in no aspect of this case can Douglas be held liable for more than $97.58; whereas, the claim now sought to be enforced by the plaintiff, amounts to the sum of $851.96.

Whether the contract, entered into by the parties, and a part compliance by the defendant, by the payment of one thousand dollars, and his offer to fully comply with all the terms of said contract by the execution of a mortgage, or the offer of payment in cash of the sum intended to be thereby secured, operated as a waiver of the lien is the •sole question presented for determination in this appeal. It is provided, by sec. 3, Art. 67, Revis. Code, that a mechanics’ lien shall not be considered as waived “by granting a credit, or receiving notes or other securities unless the same be received as payment or the lien be expressly waivedbut it is manifest that if an express contract under seal be entered into inconsistent with the operation of the lien, the lien is expressly waived by the legal effect of such express, contract. This seems to be a general principle applicable to all liens created by operation of law.

In Crawshay vs. Homfray, 4 Barn. & Ald., 53, it was said by Best, J., that “ unless the-special agreement be inconsistent with the right of lien, it will not destroy it.” It follows that if parties interpose a special contract inconsistent with the existence of a