The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-02-09

Il
vances, is a 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. &
Rawle 81
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
brlckwork on all the houses. This
deed was placed with a 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
plaiutiff could not intend that de-
PENDANT should have a deed for one
house and allow him also lien upon
all the Others 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lien, these facts repealed the idea of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, SO Ill, LAT, is
to the same effect; also German V.
Sagner, % Mo. 1877.
In Hinchley v. Creamy, 11S Mass.
595, the Court held that a person who
having mechanics lien upon a
house, stated to an intending pur
chaser that there was no incum
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 mere. But ii the
person having the lien had merely
stood by and seen the sale OF the
house, saying nothing, he would not
be estopped.
Havighorst V. Lindberg 81 LII. 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
tiff was surety on the bond. He therein
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
$4225.
Allen is not 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 lien and
is good against all other liens to an
amount greater than the penalty of
the bond would in effect write a larger
sum in the bond. 1t would make
new and different contract between
the parties.
Hartman ct al " Berry ct al, Sc
Mo. 4S7, is very similar to our case.
Here A advanced money to b to en-
able 3 to improve certain land,
taking a deed of trust on the land
and bond from G the contractor, Nth ID
as surety, that the buildings to be erected
aoOuId be deLiUered to b free from
Mechanics liens d subsequently filed
a lien for materials delivered to & for
the builders. The Court says "the
bond itself mould not operate as q bar or
estoppeI against filing liens" Il Is
to be regretted that this conclusion
OF the Court is not fortified by auy
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 prosecute a 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 Wehr, A Md. 453, cited
and discussed in Pinning v. Skipper,
Is At. r. $50. 4 careful reading of
this case sustains toe view that
Judgment on bond by a surety to
deliver the structure to the owner
free from all liens may be set off to
the lien claim. This would negative
the idea that the bond operated as an
estOppel.
We therefore sustain the exception
and override the motion for judgment
for the defendant and the case is sent
back to the Circuit Court First Cir
cult for further proceedings.
L. NJ Hatch for plaintiff; w. A.
Kinney for defendant Peacock; j. A.
Magoon for defendant Lincoln's