Benedict v. Hood

Opinion,

We have just decided, in the case of Schroeder v. Galland, *293ante, 277, that a stipulation that no liens shall be filed, in a contract between the owner and builder, is obligatory upon subcontractors, and deprives them of the right to file a lien against the building. That decision is applicable to the present case, and controls it. There is here the added circumstance that the sub-contractor joined in a bond with other sub-contractors to the owner, conditioned for the faithful performance, by the principal contractor, of all the covenants and agreements of the original contract. One of those covenants was that the principal contractor would not suffer or permit any lien to be filed against the building. The plaintiff, who was a subcontractor, did not sign his name at the foot of the bond, but he wrote his name in the blank left at the head of the bond for the names of the obligors, and this was a good execution as to him. The fact that subsequent alterations in the plan of the building were made by the owner and builder, is of no consequence as to the question of the right of the plaintiff to file a lien. The fact of his joining in the bond was proof conclusive that he had notice of the contents of the principal contract and agreed to the performance of all its terms. As one of these terms provided that no lien should be filed, he became subject to that condition, and he must be held to have waived his right to any lien. But, apart from that consideration, the opinion in Schroeder v. Galland decides that he had no right of lien in any event, because the original contractor had none by the terms of his contract.

Judgment reversed.