
    VALIDITY OF A WAIVER.
    Clyde P. Whitmer v. Wilmer C. Arthur.
    Common Pleas Court of Montgomery Court.
    Decided July 7, 1921.
    
      Mechanics Lien—Release of by Those Who Had Furnished Labor or Material—Applicable to Subsequent Claims as well as those then Accrued—Consideration Not Necessary to Relinquishment of a Personal Right.
    
    A waiver of all right of lien by one who has furnished material or labor for a structure of any kind is not open to attack for want of consideration or because procured by a building association for the ¡benefit of the owner of the property as well as in its own behalf; and such a release covers not only all right of lien then existing but any that may thereafter accrue to the party granting the release 'by reason of his further furnishing material or labor for the same building.
    
      B. II. Piclceral, for plaintiff.
    
      E. J. Weaver, for defendant.
   Snediker, J.

In this case the plaintiff sues to recover $395.36 with interest, on account of work and labor done and material furnished in the construction of a house of the defendant, Wilmer C. Arthur, on Parkwood Drive in this city. The principal contractor on the work was John Weyrich & Company. To secure his claim the plaintiff on the 18th day of February, 1920, filed with the recorder of Montgomery county an affidavit for mechanic’s lien, and, pursuant to the law, within thirty days after such filing he served a copy of it on Arthur, the owner. Upon the property is a mortgage of the Mutual Home %c Savings Association, the amount of which is $7,000. After the work of building the house had proceeded to a certain stage Arthur made application to the building association for the loan represented by this mortgage. Thereupon the building association, as testified to by Mr. Becker, who is its secretary, for an on behalf of itself, and on behalf of Arthur, the owner, required of the head contractor, and among others furnishing labor and material, of this plaintiff a release which is a waiver of the right of lien, and is by the authorities so treated. The money borrowed from the association was intended to be applied in payment of the contract for the construction of the house. The waiver which was signed by this plaintiff reads as follows:

“Release of Lien.
“Dayton, Ohio, August 5, 1919.
“To the Mutual Home & Savings Association,
“For value received we hereby release all right of lien which we now have, or may hereafter acquire, by reason of labor or material furnished or to be furnished by us for plumbing and electrical work on the house and other improvements constructed for Wilmer C. Arthur on Parkwood Drive in Dayton, Ohio, on the following lot of land of which he is the owner, to-wit, lot 40047.
“Clyde P. Whitman’*

Tn his answer the defendant, Arthur, claims that by this waiver the plaintiff has released any and all right of lien which he had against the premises belonging to him. We can see no objection to the building association acting on behalf of the owner as well as on its own account in requiring and receiving the waiver. Nor can we see any reason why the owner may not avail himself thereof, although the waiver is expressed as directed to the Mutual Home & Savings Association. Where an agreement is máde by one person with another on behalf of and for the benefit of a third, that the third person is not named does not affect his right to profit by the agreement. This is the general law and has been so decided by the Supreme Court of Ohio with respect to contracts, in the 54 O. S., at page 60, 61.

The questions, therefore, with which we ought to concern ourselves are as to the validity of the agreement and as to the force and effect thereof. It may be said in the beginning 'that the release is not open to construction as to the intention of what was to be expressed by its terms. It is specific,. It says “We hereby release all right of lien. ’ ’ It was no doubt because of its definiteness and scope, that the Gebhart-Wuichet Lumber Company, experienced in this sort of thing, changed their waiver of release to read “We hereby release all priority of lien.”

There must have been, of course, an intention on the part of the plaintiff to do what the waiver so particularly states that it does do. There is not in this case anything to indicate that this act was involuntary.

It has been contended by counsel for plaintiff that no consideration passed, and that, therefore, the waiver is bad. A waiver is an intentional relinquishment of a known right. The right here in question was a statutory right to file a lien.

In 89 N. Y. Supp., 445-451, the court say:

“A waiver is nothing more than the relinquishment of some right which, being personal, requires no consideration for its support. It does not necessarily rest upon the doctrine of estoppel, but results from the agreement between the parties, express or implied.”

In the 90 Maryland, p. 136-141, the court, in the opinion, sav:

“A waiver, therefore, being merely a voluntary relinquishment of a right, can not be regarded as a contract, and does not require a new consideration to support it. These principles are amply sustained by both the English and American cases.”

In 31 Mo. App., the court deciding the case of Griffith v. Gillum, lay down the rule that,

“A consideration such as is necessary to support a contract is not necessary to support a waiver.”

And in 126 Wisconsin, the Supreme Court, at page 116, in discussing waiver, say:

“It would seem that the more satisfactory ground on which to support the doctrine of waiver is that it is a rule of judicial policy the legal outgrowth of judicial abhorrence, so to speak, of a person’s taking consistent positions and gaining advantages thereby through the aid of courts—a rule by which, regardless of absence of any elements of estoppel or consideration, as those terms are popularly understood, the maxim that one shall not be permitted to blow hot, then with advantage to himself turn and blow cold, within limits sanctioned by long experience as required for the due administratoin of justice, has been popularly applied.”

So that we are prepared to say that no question can be made as against the waiver before us on account of a lack of consideration. If such a point were made, the circumstances and conditions surrounding the giving, of the waiver, its purposes and the benefit to be derived therefrom by not only the buildin'g association and the owner, but by the plaintiff himself, furnish ample consideration to support the waiver.

There may be some doubt in the mind of counsel as to whether or not the waiver may be said to extend to work done after it was made and delivered. As bearing upon this the first and second syllabi in the case of Brown v. Williams and Cloak, 120 Pa. St., p. 24, furnish us the law:

“A release executed by mechanics or material men during the progress of the construction of a building of all manner of liens, etc., ‘which we or any or either of us now have, or might or could have, on or against said building, ’ is an unconditional agreement to look to the personal responsibility of the owner or con tractor, and not to the structure. Such a release though made during the progress of the work is operative to discharge the building from mechanic’s lien as effectively as though made after its completion and for .labor done and material furnished after as well as before its execution.”

The Supreme Court of Ohio, in the case of the Iron Company v. Murray, 38 O. S., p. 323, say:

“The right to a mechanic’s lien for labor and materials furnished for the erection or repair of a building may be waived by an agreement, either express or implied.”

A waiver of the right to file a mechanic’s lien is a waiver of a right which contravenes the common law. The provisions of the Code for this purpose are now more severe than formerly. The privilege has been so extended as to make the remedy extraordinary. In order to avail himself of it a subcontractor or material man ought to be required to perform everything which the law provides that he shall do, and, on the other hand, if he voluntarily waives this extraordinary right, the court out of consideration for all parties ought not to hesitate to give such waiver its full force.

The history of the legislation to give subcontractors and material men a direct, lien upon the property of the owner is familiar to us. We can still remember the original attempt that was made by the Legislature to so enact, and while we do not now undertake to determine as to the policy of such a law, we are prepared to say that a waiver of rights under it ought, if possible, to be supported.

As is said by one of counsel for the building association, even the moral hazard might be affected by the failure to enforce a waiver so clearly made. It is not a strange thing that the building association undertakes to and does represent the borrower in taking these waivers. The borrower does not generally employ counsel, is not familiar with the mechanic’s lien law and really expects the association so to take care of him and all his interests. If it had been the intention of the Mutual Home & Savings Association that this waiver should be simply as to the priority of its mortgage, it would have been easy for it to have made the waiver in that form. The same may be said of the plaintiff.

It is the law that a right to lien once waived may not in the absence of express agreement to that effect with the owner be afterwards revived. This evidence does not show any such express agreement.

On the whole, we are inclined to the opinion that the plaintiff on the 5th day of August, 1919, by his waiver, released any and all right of lien which he then had or thereafter might have, by reason of his connection with the building of this house, and that on that account he is not entitled to recover.

Our finding is for the defendant.  