The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1894-02-09

material such as the plaintiff adj
vances, is strictly legal one, ex-
pressly given by statute and it ought
not to be considered as waived or re-
leased except by plain facts.
Phillips Mechanics Liens, Sec. 273.
Hinchman v. Lybrsnd, IA Serg. &
Rswle 80.
In Grant v. Strong, Is Wallace,
623, the defendant, a brick-layer,
agreed in writing to take deed for
one OF sixteen houses which plaintiff
was building, as payment for the
brickwork on all the houses. This
deed was placed with third party
as an escrow to be delivered to de-
PENDANT when the work was complet-
ed. During the progress of the
work the contract was changed so
thst defendant was to have plaintiffs
negotiable note payable within three
months of The date Of completion of
the work and then the escrow should
be cancelled. The Court held that
plaintiff could not intend that de-
PENDANT should have deed for one
house and allow him also lien upon
all the oth-rs and that as defendant
looked to his security and not to the
lien, these facts repealed the idea of
lien and were inconsistent with it.
Here was the act of the contractor
himself which would induce the own
er to believe that the contractor did
not rely upon the lien but upon the
security given.
McGraw Y. Bayard, Sc Ill, LAT, is
to the same effect; also German v.
Sagner, % Mo. 1877.
In Hinchley v. Creamy, lis Mass.
sos, the Court held that person who
having a mechanics lien upon a
house, stated to an intending pur-
chaser that there was no lncum-
brance upon it and advised him to
buy it, who then bought relying up
on his representation, was estopped
from setting up his lien. There was
a clear estoppel here. But il the
person having the lien had merely
stood by and seen the sale of the
house, saying nothing, he would rot
be estopped.
Hsvighorst V. LiDdberg g. Ill. 1853.
In the case at bar we have the bond
of the contractor that the house was to
be delivered free of liens. The plain
tiffwss surety on the bond. He therein
bound himself, in default of his prin-
cipal doing so, to pay and discharge
such liens as might be enforced
against the structure, to the amount
of the penalty of the bond, which is
S4225.
Allen is not a lienor relying upon
other security inconsistent with the
reliance upon his statutory lien.
The bond is silent as to
Aliens own claim of lien. 1t
is undoubtedly good indemnity
against all liens, his Own included, to
the full extent of the sum named
but we fail to see that it can go any
further. To hold that the bond estops
Allen from maintaining his lieu and
is good against all other liens to an
amount greater than the penalty Of
the bond would in effect write larger
sum in the bond. 1t would make a
new and different contract between
the parties.
Hartman ct al v. Berry ct al, Sc
Mo. 4S7, is very similar to our case.
Here A advanced money to B to en-
able B to improve certain land,
taking deed of trust on the land
and a bond from G the contractor, Nth ID
as surety, that tie buildings to be erected
Would be deltuered to B free from
Mechanics hens. d subsequently filed
a lien for materials delivered to G for
the builders. The Court says "he
bond itself lcould not operate as bar or
against filing liens" 1t is
to be regretted that this conclusion
of the Court is not fortified by any
reasoning, but it was directly re-
sponsive to an allegation in the
answer that D and his principal were
estopped and that they fought not to
be permitted to pr ,secute lien
against said buildings which by their
own acts they had led defendant to
believe they would see delivered free
Of all liens.'
Another case is referred to by
counsel for plaintiffs. 1t is Lutheran
Church v. Weir, A Md 453, cited
and discussed in Pinning Y. Skipper,
Is Att. r. $50. A careful reading of
his case sustains the view that
Judgment on bond by a surety to
deliver the structure to the owner
rec from all liens may be set off to
he lien claim This would negative
he idea that the bond operated as an
'stoppel.
We therefore sustain the exception
md override the motion for Judgment
or the defendant and the case is sent
Jack to the Circuit Court First Cir
.uit for further proceedings.
f. NJ Hatch for plaintiff; w. A.
Kinney for defendant Peacock; j. A.
lagoon for defendant Lincoln's
Assignee.
Honolulu, January 81, 1894.