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![handle is hein.statereports/pittlegj0042 and id is 1 raw text is:
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E. Y. BRECK, Editor. ESTABLISIIED 1853. JOHN S. MURRAY, Publisher.
N. S. VOL. XXV.-No. 1. A UG UST 1, 1894. 0. S. VOL. XLII
WATERS v. WOLF, Owner, and WHITE,
Contractor.
The debt which Is the subject of a mechanic's lien must
be founded on a contract, express or Implied, with the
owner.
When the owner employs a contractor to erect for him
a house, a debt founded on a contract of the contractor
with a sub-contractor or material-man, Is by Implica-
cation authorized by the contract of the owner, and
therefore Is the subject ofa lien.
It Is Incumbent on such sub-contractor or material-man
to ascortfuin whether one assuming to be the principal
contractor has authority to bind by lien the property
of the owner; falling to do this, he furnishes labor
and material at hIs peril.
Ha(rlan v. Rand, 27 Pa. 511, followed.
The principal contractor by virtue of lhis contract with
the owner for the erection of the building becomes his
ngent, but the agency !s special and the powers of the
agent are limited by his contract. If he contracts that
no lien slall be filed, none can be filed.
The Act of June 9. 1891, which provides that without
the written consent of the sub-contractor all contracts
between the original contractor and owner, which
expressly or ImplIedly stipulate that no such [me-
chanic's] lien shall be filed, stall be Invalid as against
the right of such sub-contractor to file the same at-
tempts to confer a right without a debt to support it.
It strikes at the foundation of all properly in land. It
Is an attempt to prevent persons who are suijuri from
maklting their own contracts-to create a debt and give
a lien therefor against the express covenant of the par-
ties. The second section attempts to fraine a new con-
tract and substitute It for the one made by the parties.
Such act violates the constitutional provision securing
to all men the Inherent and Indefeasible rights of
acquiring, possessing and protecting property, and Is
therefore Invalid.
MITCEELL, J., dissented.
Appeal of John V. Waters, plaintiff, from
the action of the Court of Common Pleas No. 3,
of Allegheny county, in disiussing it rule for
Judgment for want of a sufficient affidavit of
defense in an action of sci. fa. sur mechanic's
lien brought by John W. Waters against Anna
Wolf, executrix of Nicholas Wolf, owner, and
Thomas White, contractor, to recover $413, for
work done and material furnished in and about
,t certali building lit McKeesport, Penna.
For appellant, Thomas Patterson and lVin.
A. Way.
Contra, lames & Brock.
Supreme Gurt, renit'a.
Opinion by DEAN, J. Filed July 11, 1894.
The plaintiff filed a mechanic's lien as sub-
contractor for work done and materials fur-
nished in the erection of a four story brick hotel
for Nicholas Wolf in McKeesport, Allegheny
county. Wolf, the owner, made his contract
for the work and materials in the construction
of the building with Thomas White, a contrac-
tor and builder. The contracts with White
were two, one dated June 15, 1891, and the
other November 7 of same year. Both con-
tracts contained this stipulation: The con-
tractor agrees that no liens shall be filed against
said works, or on account.of the said contractor,
neither shall there be any legal or lawful claims
against the contractor in any manner from any
source whatever, for work or materials furnished
on said works.
During the progess of the work, White made
an agreement with Waters, the plaintiff, as
suib-con tractor, for work and materials oin the
building. Waters made no agreement with
White with reference to filing a lien, nor did
he consent in writing to be bound by the stipu-
lations of White's contract with the owner. He
filed this lien for a balance of $413 due him, on
which sci. fa. issued, and Wolf, the owner,
filed affidavits of defense, averring, that by his
contract with the principal contractor no lien
could be enforced. Plaintiff then took a rule
for judgment for want ora sufficient affidavit of
defense, which rule, after argument on 3d May,
1893, the court discharged without filing opinion.
From that decree plaintiff took this appeal, as-
signing for error the decree discharging the rule.
If the decisions of this court touching the
rights of the owner, in a long line of cases pre-
ceding and following Schroec'er v. Galland, 134
Pa. 277, of which that opinion is only a concise
summary, be the law, this appeal cannot be
sustained. But it is argued the ruled laid down
in that and like cases is swept away by the Act
of June 8, 1891, passed subsequently, with the
intention of rendering that rule inoperative as
to nil cases arising after the passage of the act.
And this result is conceded by the appellee, if
effect be given that act according to its terms.
The act referred to contains two sections, as
follows:](ViewImageLocal?handle=hein.statereports/pittlegj0042&div=1&collection=&method=preview&ext=.png&size=3)