
    Brzezinski, Respondent, vs. Neeves and others, Appellants.
    
      May 25
    
    June 19, 1896.
    
    
      Liens: Waiver: Oontraet construed.
    
    In a contract for the grading of lands, a waiver by the contractor of all right to a lien thereon, such waiver being expressly stated to be the essence of the contract and a part of the consideration for entering into the same by the owners of the lands, is held an independent covenant, not affected by the failure of such owners to pay a certain percentage of the contract price, upon monthly estimates, as provided in the contract.
    Appeal from a judgment of the superior court of Milwaukee county: R. R. Austin, Judge.
    
      Affirmed in part; reversed in part. •
    This is an action to foreclose a mechanic’s lien upon certain lands for grading. The grading was done by the plaintiff under a written contract executed by him and by the defendants AFeeves, by which the plaintiff agreed to grade a certain subdivision of land owned by said defendants, under direction of ah engineer, and said defendants agreed to pay therefor a certain sum per cubic yard, eighty-five per cent, of which was to be paid on monthly estimates, and the balance when the whole work was completed. Said contract also contained the following provision: “ It is further agreed that the said party of the first part hereby waives all right of lien upon the premises which he may have by virtue of the statutes of the state of Wisconsin, and that all persons employed by him to work upon said premises shall sign, execute, and deliver a release and waiver of all liens which they may be entitled to under the statutes of this state, and ■that the waiver of liens hereto attached, and made a part hereof, shall be signed and executed by all persons employed by the party of the first part under this contract; the waiver of such liens being the essence of this contract and a part of the consideration for entering into the same by the parties of the second part.”
    The defendants did not appear upon the trial. It appeared by the evidence that the balance due the plaintiff for grading was $1,617.10, and the court found that the payment of' the eighty-five per cent, was the only consideration for the plaintiff’s agreement to waive his lien, and that, such payment not having been made, the plaintiff was still entitled to a lien; and judgment was ordered and rendered against the defendants Beeves, personally, for the amount due, and the same was adjudged a lien upon the real estate graded. From this judgment the defendants appealed.
    For the appellants the cause was submitted on the brief of Bindley Collins.
    
    For the respondent there was a brief by Walk. Pereles & Sons, and oral argument by Cuy D. Goff.
    
   Winslow, J.

So much of the judgment as provides for a lien against the real estate graded must be reversed. That the right to a lien may be waived by agreement made at the time of entering into the contract is unquestionable. Jones, Liens (2d ed.), § 1500. In the present case the waiver was clearly an independent covenant, and not dependent upon any other contingency, and it must be held binding.

By the Court.— That part of the judgment which adjudges a personal recovery against the defendants George A. and W. B. Beeves is affirmed, and the remaining part of the judgment is reversed. No costs are awarded, but the respondent shall pay the fees of the clerk of this court.  