McCall v. Eastwick

2 Miles 45

Opinion

Per Curiam.

In this case, judgment must be entered for the plaintiff. A “ debt” was clearly “ contracted” in the erection of the building, within the purview of the acts regarding mechanics’ liens, although the parties might not have struck a balance of the amount due resulting from their mutual dealings. A debt may be contracted, though it may be the subject of set-off, founded on a quantum meruit, in which case the amount due is unliquidated. Nor is there any presumption, from the agreement of the parties, that the plaintiff intended to waive the right to a lien against the building. The rule has been well settled that the mechanic or material-man may have the personal responsibility of the party contracting or purchasing, or accept other securities, and at the same time have his lien on the building, and he will not be deprived of the latter unless the parties contract that the personal liability or the acceptance of other securities shall be a waiver of the lien under the act of assembly. There is a large class of cases in which there are various rights and remedies collateral to each other, and this case is of that class»

Judgment for plaintiff.

a

8 This decision was under the acts prior to that'of 16th June, 1836, on the same subject, but is equally applicable to the latter.