Murphy v. Morton

20 A. 1049, 139 Pa. 345, 1891 Pa. LEXIS 1000

Opinion

Per Curiam':

This case is not ruled by Schroeder v. Galland, 134 Pa. 277. The point decided in that case was that a sub-contractor stands in the shoes of his contractor, and cannot file a lien when he could not. In this case, there was no agreement by the contractor not to file a lien. What he did agree to was this: “ Before the last or final payment shall be due or payable, the party of the second part (contractor) shall furnish the party of the first part with releases from sub-contractors and material-men, and from any and all persons having a right of lien against the said houses, or the property on which they are located, for any work or materials furnished and used in their construction.” There is here no covenant on the part of the contractor not to file a lien. On the contrary, there is a recognition of the right of sub-contractors and material-men to lien the building. All it amounts to is, that, before the contractor shall receive his last payment, he shall furnish releases from all persons entitled to file liens. Until the contractor complies with this stipulation, he cannot get his money. If the defendants have paid him in full, without enforcing this part of the agreement, it is their misfortune.

The affidavit of defence was clearly insufficient, and judgment was properly entered for the plaintiffs.

Affirmed.