has the unquestionable right to maintain this suit for damages resulting from the unreasonable delay in shipment as alleged, and that it is otherwise entitled to recover under the evidence."

On the issue thus drawn it was ruled and a great number of cases are cited in support of the ruling in favor of appellee, the appellant not suing as assignee but in his own name as the primary party.

We have not examined the cases cited but, if they uphold the ruling, this runs the rule of technicality to an inordinate length. It is true, however, that no fatal obstacle is interposed to the drawee bringing the suit, if he applies to shipper to assign to him his cause of action. But just as the assigning is presumed to be the execution of a formal document to which no valid objection could be interposed, why should not the law presume it to have been. done? When the carrier accepts a shipment of this kind is it not told by the shipper that all rights go to the party directed to be notified? And does not this familiar course of business imply this very thing?

If it is only under the Carmack Amendment that this suit might have been maintained, that is a very sensible change, and any rule clinging to other practice ought to be abolished by judicial construction. A business practice of sending bill of lading with draft attached in a shipment of this character is something of which courts should take judicial cognizance, and it seems not greatly to the credit of any carrier for it to interpose any such objection as did the appellee in this case. It is doubtful indeed whether an estoppel was not raised.

The subject of mechanics' liens is an important one to every contractor, builder and owner. Such liens are creatures of statute, and were unknown, either at common law or in equity. They were allowed, however, by the civil law, and in France by the Code of Napoleon, masons, architects, contractors and others employed in building houses, etc., were accorded liens. The origin of such laws in America arose from the desire to establish and improve as rapidly as possible, the city of Washington. In 1791, at a meeting of the commissioners appointed for such purpose, both Thomas Jefferson and James Madison were present, and a memorial was adopted urging the general assembly of Maryland to pass an act securing to master builders a lien on houses erected and land occupied. The requested law was enacted December 19, 1791. The further history of the mechanics' lien law is concisely stated by a learned writer on that subject, as follows: "The next statute on the subject was passed by Pennsylvania in the year 1803. These statutes, while they contain the terms of all subsequent legislation on the subject, are imperfect and meager in comparison with the state of the law at the present time." "The whole subject has been one of gradual growth, extending from imperfect and limited enactments, embarrassed by adverse decisions, to be the settled policy of all the states, and of unquestioned importance. The experiment was at first confined to towns and cities, but has by degrees, as its necessity and justice became apparent, extended itself in a majority of the states, to agricultural districts. The lien was designed in its inception for the most part to secure only the

(1) Phillips. Mech. Liens (3d Ed.), Sec. 1. (2) Domat's Civil Law by Strahan, Slecs. 1741, 1742.

(3) Code Napoleon, Privileges and Mortgages, Sec. 2, Art. 2103.

principal contractor, until the frauds perpetrated upon subcontractors and workmen, gave rise to amendments for their proper protection." "Fortunately the system is gradually assuming perfection, and all those who are most entitled to the exercise of its beneficial provisions, compatible with the ownership of property and the paramount rights of the public, have been generally included within its principles. Each state has so guarded the remedy as to prevent, in a greater or less degree, the evils that would necessarily attend the indiscriminate multiplications of liens on real estate. The contractor seems to be universally secured by the lien. In most of the states, the subcontractor and material men have either a lien given them directly on the land and building to secure them whatever may be due for their work and materials, or as in a majority of laws, a right to notify the owner of their unpaid claim for work on materials, with a right of lien against the property for any unpaid balance, which, at the service of the notice, may be in his hands and due to the contractor, or else simply a right of action, without the lien, against the owner of such unpaid balance. These same provisions are extended in some states to the workman."

Mechanics' lien laws are remedial in their character and should be liberally construed, as to all persons coming within their provisions. Although the courts must construe and enforce such statutes as remedial ones, they cannot extend them to meet cases not within their scope, however meritorious they may be."

(4) For a leading case collecting the authorities on the question as to whether a contractor can have a lien under a law giving persons, laborers and material men. See MooreManfield Const. Co. v. Indianapolis, N. C. & T. Ry. Co. (Ind.), 101 N. E. 296.

(5) Phillips, Mech. Liens (3d Ed.), Secs. 7-36. (6) Indianapolis, etc., Traction Co. v. Brennan, 174 Ind. 1.

(7) 2 Jones Liens (2d Ed.), Sec. 1554; Phillips, Mechanics' Liens (3d Ed.), Sec. 18-19; Boisot, Mechanics' Liens, Secs. 34-37.

A mechanics' lien may, of course, be waived by the voluntary act or agreement of the lienholder. In order to constitute a waiver of a lien given by statute the contract must contain an express covenant against liens, or the language of the contract must be such that a covenant against liens can be clearly implied therefrom. The language upon this subject should not be ambiguous or uncertain, but it should be so clear that a mechanic or materialman may understand it without consulting a lawyer as to its legal effect.

It is therefore important that a builder. know just what stipulations in his contract will take away his right to a lien. In the following cases the courts held that the wording of contracts precluded the builder from his lien. In Bowen v. Aubrey," the contract contained the following agreement on the part of Aubrey: "Said first party hereby agrees he will not encumber or suffer to be encumbered said building or the lot on which it is erected, by any mechanics' liens or debts of material, labor men, contractors, sub-contractors, or otherwise." Aubrey sublet the brickwork to the intervener, Craft. denying a lien, the Supreme Court of California held that as Craft knew that there was a contract between Aubrey and Bowen and that he was a sub-contractor under it, this was sufficient to put him upon inquiry and he is to be considered as effected with notice of the contents of the contract. Also, that the sub-contractor could not acquire any right against the owner in contravention of the terms of the original contract, and that a party may, by agreement, waive a right created by a statute for his benefit.

In

(8) Harris v. Youngstown Bridge Co., 93 Fed. 355; Portsmouth Iron Co. v. Murray, 38 Ohio St. 323; Griffin v. Booth, 152 Ill. 219; Hughes v. Lansing, 34 Oreg. 118, 55 Pac. 95, 75 Am. St.. 574: Davis v. LaCrosse, etc., 12 Wis. 579, 99 N. W. 351; Carson-Payson Co. v. C. C. C. & St. L. Ry. Co. (Ind.), 105 N. E. 503.

In a Pennsylvania case,10 a building contract provided that there should not be any lawful claims against the contractor in . any manner from any source whatever for work or material furnished, and that the owner "will not in any manner be answerable * * * for any of the materials or other things used and employed in finishing and completing said works." It was there held, that such provisions constituted an implied covenant by the contractor that no lien should be filed against the building. A sub-contractor was chargeable with notice and was bound by all the stipulations of the original contract and not entitled to file a lien for the material furnished.11

In a Maryland case,12 which concerned a contract for building houses, there was a stipulation therein that the contractor would give bond as a bar against liens upon such houses as were to be erected. In holding that the giving of such bond constituted a waiver of mechanics' liens, the higher court said, "If a party expressly contracts that 'he will not do a certain thing, or will not set up a certain claim against the other contracting party or his property by resort to a certain process, seems to us a legal anomaly to say he can go on and do the thing, or avail himself of the forbidden process, because he has a grievance against such other party on some other ground, or a claim which he can enforce against him by a different suit or process.13

it

(10) Dersheimer v. Maloney, 143 Pa. St. 532, 22 Atl. 13.

(11) See also Evans v. Grogan, 153 Pa. St. 121, 25 Atl. 804; Schroeder v. Galland, 134 Pa. St. 277, 19 Atl. 632, 7 L. R. A. 711, 19 Am. St. 691; Long v. Caffrey, 93 Pa. St. 526; Scheid v. Rapp, 121 Pa. St. 593, 15 Atl. 652; Fidelity Mut. L. Assn. v. Jackson, 163 Pa. 208, 29 Atl. 883, 43 Am. St. Rep. 789; Ballman v. Heron, 160 Pa. 377, 28 Atl. 914.

In an Indiana case1 the contract provided that the appellant would keep the buildings and real estate upon which they were located free and clear of all mechanics' liens on account of any work, labor, or materials furnished by said party of the second part. It was claimed by the contractor that this stipulation amounted only to an agreement to keep the property free and clear of liens in favor of persons who might perform labor for or furnish material to him as a subsequent contractor, and that it does not preclude him from enforcing a lien in his own favor for the balance due him under the contract. The Appellate Court in deciding the the case said, "The contract is not susceptible of the construction for which appellant (contractor) contends. Appellant's agreement was to keep the property free of liens on account of labor and materials which it furnished. It agreed to furnish all labor and materials necessary for the completion of the contract, and the furnishing of such labor and material would create a liability, in favor of appellant under the contract, for which it might have enforced a lien in the absence of the agreement to keep the property free and clear of liens on account of labor and material furnished by the party of the second part. By filing a lien for a balance due on the contract for labor and material furnished thereunder, appellant clearly violated the stipulation of the contract to which we have referred."15

As we have before suggested, the greatest difficulty which attends the solution of the present question is the determination of just what language will be

Long v. Caffrey, 93 Pa. 528; Boisot on Mechanics' Liens, Sec. 744; 27 Cyc. 266; contra, Kertscher & Co. v. Green, 205 N. Y. 522, 99 N. E. 146, Am. Cas. 1913 E, 561.

(14)

Carson-Payson Co. v. C. C. C. & St. L Ry. Co. (App.) 105 N. E. 503, followed in Fuhrman v. Frech (App.) 109 N. E. 781.

(15) It is not the purpose of this article to discuss the question as to whether the materialman and laborer are bound by the stipulation in the original contract against liens. Sve the authorities discussed in Hume v. Seattl Dock Co. (Ore.), 137 Pac. 752, 50 L. R. A. (N. S.) § 153.

deemed a waiver of liens. In the following cases, the language there used was not deemed a waiver of the statutory lien. In a leading New York case the court held that a contractor could not be held to have contracted with reference to his own lien when he agreed to a stipulation in the contract that he would not at any time suffer or permit any lien to be put or remain on the premises for work or materials, or by reason of any other claim or demand, and that any such lien of a third party, until it should be removed, should preclude any claim for payment whatever under the contract, and that in the event that the same was not removed, the owner might remove the same at the contractor's expense. In

the course of the opinion, the court said, "As we construe the provisions of the con

tract, the paragraph quoted referred only

to liens, filed against the contractor by workingmen, sub-contractors, or material men. This is apparent not only by the language, or by reason of any other claim or demand against the party of the second part,' the word 'other' showing that the claims antecedently mentioned were to be of the same character, that is to say, against the contractor, but by the further provision that the owner might remove any lien at the expense of the contractor, including legal fees, a provision quite inapplicable to a lien filed by the contractor itself. Moreover, to preclude a contractor by virtue of some provision, to that effect, in the contract, from his right to the security which the statute affords him, the intent and intepretation of the provision should be reasonably clear. There many reasons why an owner might wish to be free from the claims of sub-contrac

are

tors and materialmen against the principal contractor which might involve him in expensive litigation and the possibility of loss, should a payment to the principal contractor be deemed to have been improperly

(16) Ketscher & Co. v. Green, 205 N. Y. 522, 99 N. E. 146, Am. Cas. 1913 E, 561.

made as against the lienors. Those reasons are without force to a lien filed by the principal contractor."

In a Wisconsin case, 16a the contract stipulated that the contractor should deliver the buildings "free from all claims, liens and charges" on or before November 1, 1900.” The court after stating that as a general proposition a builder may waive his right to a lien remedy, remarks that where the terms of a contract are ambiguous on that question, then the doubt should be resolved against the waiver, since it would be presumed in the absence of clear evidence to the contrary, that one has not disabled himself from the use of so valuable a privi

lege as that given by the statute for the enforcement of a builder's rights. In its opinion the court said, "Our construction

of the language of the contract is that it

called for a delivering of the building free from any lien or claim for a lien through. or under the builder. It could not reasonably have had reference to any liens filed by the builder, because, the contract contemplated the probable lapse of time for making the last payment, after the completion of the building-time sufficient to enable the architect to determine whether there were any liens, claims or charges. thereon. It was contemplated that there would be nothing due him till the happening of conditions precedent, which might not occur till after the day of delivery. Such was the case. The building was delivered before respondents had any cause of action against appellant. There was no lien on file at the time of the delivery, nor for some time thereafter, nor was there, so far as appears, any claim that might ripen into a lien, except that of respondents. It is considered that it was not intended by the parties to the contract, that respondents should not have the statutory lien remedy to enable them to collect any sum that might be in the end due them, and payment

(16a) Davis v. LaCrosse, etc., 12 Wis. 579, 99 N. W. 351.

of which they might be compelled to enforce by action."

17

In a Massachusetts case, which involved the construction of a contract for the erection of a dwelling house, the contract had the following provisions: “Desmond agrees to pay to the said Poirer, upon certificate of said architect that the terms of this contract are complied with, and upon sufficient evidence, that all claims upon the building for work or materials up to the time of payment are discharged, the sum of $1,575.40, in the following manner. 3d. Thirty days after the work is entirely completed and accepted by the architect he, the said architect, having signed a certificate to that effect, the balance, $575.40 is to be paid. In case notice in writing is given to the said Desmond by any person furnishing stock or materials for the construction of the work under contract, that they shall claim a lien for said stocks and materials, no payment shall be made until such notice shall be revoked by the person serving the same." It was held that the contractor was not deprived of his lien. The court in its opinion said: "It is to protect the respondent from a liability under liens, after making full payment for the work and material to the contractor. There is no reason for such a provision in reference to the claims of the contractor to be paid under the contract. There being no other liens than him, payment to him of the amount due under the contract would leave the property free from all liens or claims, and accomplish the purpose of this provision. There is no reason for depriving the contractor of his right to secure the amount which the respondent by the contract, agrees to pay him, and without something looking to such an object he cannot be cut off from the right given by the statute."

In a Rhode Island case,18 petitioners contracted to construct a building and gave

(17) Dolphis Poirer v. Thomas F. Desmond, 177 Mass. 201.

(18) Bassett v. Swarts, 17 R. I. 215, 21 Atl. 352.

bond for the performance of their contract, also conditioned to save the owners harmless "from any and all mechanics' liens in any manner arising from or growing out of said contract." In construing the contract the higher court held that the bond covered only liens for work done and materials furnished for petitioners by laborers, sub-contractors, or material men and did not embrace liens which the law might give to the contractor.

In a recent Texas case,19 it was held that the principal contractor's lien, at least to the extent of the contract price, was not affected by a provision that the contractor would not allow any mechanics' liens for labor or material, and would satisfy every claim therefor, and hold the the owners harmless from all liens in respect thereto. Mr. Rockel in his excellent treatise on Mechanics' liens, says: "A general provision that a contractor is to deliver buildings free from liens is not a waiver of his own right."20

A builder's right to a mechanics' lien may also be waived in some cases, by inconsistent acts, although he may have had, in fact, no intention to waive it, but the intent of the parties is usually controlling. The rule is thus stated in a recent case: "It may be admitted that lien laws do not, in general, create a lien in favor of one who accepts in full a different security at the time. the contract or agreement is made, or who has entered into any other agreement which manifestly indicates a clear purpose and intention to waive the benefit of the statutory lien. A contract for a security which

(19) Childress v. Smith (Tex.), 37 S. W. 1076. reversed on other grounds in 90 Tex. 610, 38 S. W. 518, 40 S. W. 389.

(20) Rockel on Mechanics' Liens, Sec. 173. See the following authorities generally upon this subject: Simonson v. Grant, 36 Minn. 439; Schmid v. Palm Garden Improv. Co., 162 Pa. 211, 29 Atl. 727; Jarvis v. State Bank, 22 Colo. 309, 55 Am. St. Rep. 129, 45 Pac. 505; Asle v. Wilson, 14 Colo. App. 323, 59 Pac. 846; Commonwealth Tile Ins. & T. Co. v. Ellis, 192 Pa. 321, 73 Am. St. Rep. 816, 43 Atl. 1034; Iseman v. Fugate, 36 Mo. App. 166; Frost v. Folgetter, 52 Neb. 692, 73 N. W. 12; Arizona R. Co. v. Globe Hardware Co., 14 Ariz. 397, 129 Pac. 1104.