Howarth v. Chester City Presbyterian Church

29 A. 291, 162 Pa. 17, 1894 Pa. LEXIS 935

• Court: Supreme Court of Pennsylvania
• Decided: May 23, 1894
• Docket: Appeal, No. 128
• Status: Published

Opinion

Opinion by

Mr. Justice Fell,

Wm. D. Smith entered into an agreement with the Chester City Presbyterian Church to erect a building. The contract provided that the final payment should be made “ when the entire contract is completed and delivered to the said party of the second part with release of all liens and claims,” and “ the said party of the first part hereby agrees to deliver the said building all complete as aforesaid at the time above mentioned, free from the claims of mechanics and matérial men and all claims whatever.”

The jury was instructed that under this contract the contractor could not maintain a lien, and that therefore the subcontractor could not.

The contract contains no express covenant against the filing of liens, and none arises by necessary iniplication. The agreement is in effect that the building shall be completed and delivered by the contractor free from all claims, and that a release of liens shall be furnished, and that until these things are done the final payment shall not be required.

There was no agreement not to file a lien, and no waiver of such a right; and the case comes directly within the decisions in Taylor v. Murphy, 148 Pa. 337; Evans v. Grogan, 153 Pa. 121; Nice v. Walker, 153 Pa. 123.

The judgment is reversed and a venire de novo awarded.