
    Sanders’ Pressed Brick Company, Appellant, v. George R. Barr et al., Respondents.
    St. Louis Court of Appeals,
    November 1, 1898.
    1. Mechanics’ lien: contract op waiver of. A valid contract, made in substitution for one of a prior date, annuls the obligation of the former, and of itself furnishes a sufficient consideration for the release of the first agreement.
    2. Substitution of Contracts. The principle of the substitution of contracts, giving rise to the extinction of one by the execution of another, applies with equal, if not greater force, when the right of interest extinguished for the new agreement is neither vested nor resting in contract, but is wholly contingent.
    
      Appeal from the St. Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge.
    Affirmed.
    O. J. & E. Lee Mudd for appellant.
    An objection to the introduction of any evidence because the pleadings fail to state a cause of action, is in the nature of a demurrer, and admits for the sake of its consideration, the truth of allegations of fact well pleaded. * * * If a cause of action may be •gathered by fair inference from all the allegations of the pleadings, such objection should be overruled. Young v. Shiekle, H. & H. Iron Co., 103Mo. 324, loc. •cit. 327; Lycett v. Wolff, 45 Mo. App. 489, loc. cit. 493. The right to file and maintain a mechanics’ lien is a valuable property right, and its waiver or surrender must be supported by a valuable consideration. “A promise, for which there is no consideration, can not be enforced at law.” Abbott v. Nash, 35 Minn. 451, loe. cit. 455; Boisot on Mech. Lien, sec. 732, p. 762; Phil, on Mech. Lien, sec. 272, p. 474. The written agreement of waiver, as alleged in the reply, purports no consideration and is, therefore, void, and there was no waiver unless a consideration may be shown by evidence other than the writing. Such consideration is alleged in both the answer and reply. The reply denies that set up in the answer, and then alleges the real consideration agreed on at the time of the writing, and its subsequent failure. This failure of the consideration for the release or waiver is a good defense against the waiver and its enforcement by defendant in this suit. Benson v. Mole, 9 Phila. (Pa.) 66; Abbott v. Nash, supra. “Where consideration is written in the contract quite generally, held, none other can be proven. * * * Where no consideration is expressed it may, nevertheless, be proven.” 1 Pars, on Cont. [6 Ed.]., p. 450, sees. 429-430; Bartlett v. Matson, 1 Mo. App. 151. “Where the consideration appears to be valuable and sufficient, but turns out to bo wholly false or a mere nullity, or where it may have been actually good, but before any part of the contract has been performed by either party * * * the consideration wholly fails, a promise resting on this consideration is no longer obligatory.” Idem, p. 485, sec. 462. “Consideration or its want may always be shown by extrinsic evidence in a controversy between the original parties to the contract, even though the evidence tends to vary the consideration stated in the instrument.” Creer v. Nutt, 54 Mo. App. 4, loe. cit. 7; Sexton v. Anderson, 95 Mo. 373. “In order to give validity to a contract, as between the parties, it is indispensably necessary that it shall be predicated upon a sufficient consideration, or it is a mere nudum pactum and not enforcible either at law or i a equity; and the same rule prevails when the consideration, upon which the promise rests, fails either in whole or in part.” 6 Waite’s Ac. and Def., p. 567, and numerous cases there cited. “As between the parties, either the want of the failure of a sufficient legal consideration is a complete defense to an action thei’eon.” Idem, p. 573. “A note given * * upon the agreement of the payee to do a certain thing which he has failed to do * * * is without consideration.” Idem, p. 575, citing numerous cases. As illustrating plaintiff’s contention and supporting the reply in this case, attention is called to the eases of Albrecht v. Lumber Co., 126 Ind. 318; Katzenbach v. Holt, 43 N. J. Eq. 536. It was contended at the trial that if defendant promised plaintiff to withhold from Barr the contract price as alleged, and pay same over to plaintiff, but failed to do so, then plaintiff’s remedy is an independent action for breach of contract. * * * Mason v. Glass, 62 Mo. App. 449; Hancock v. Blackwell, 139 Mo. 440, loc. cit. 453; Brewster v. Brewster, 38 N. J. L. 119.
    Clopton & Trembly for respondents.
    While the contract is referred to in the pleadings-as a contract of waiver of lien, yet, as a matter of fact, plaintiff never acquired even an inchoate lien and therefore had no lien to waive. It is the furnishing of materials for a building, etc., without any understanding to the contrary on the question of lien, that gives birth to an inchoate lien in favor of a materialman. In the case at bar the lien was not even begotten. much less born, because the materials were furnished upon a distinct understanding between all the parties in interest that no lien should be claimed or filed therefor. . The court was, therefore, right in holding that inasmuch as the agreement was entered into before the materials were furnished, no consideration other than the mutual understanding of the parties was required to support the contract. Even if plaintiff had a waivable lien right when it entered into the agreement in question the slightest benefit accruing to one party, or the slightest inconvenience imposed on . the other would be sufficient consideration to support it. The consideration disclosed by the reply for the contract in question is ample to support it. Wirt v. Schuman, 67 Mo. App. 163-172; Given v. Corse, 20 Mo. App. 132; Yogel v. Meyer, 23 Mo. App. 427; Isenman v. Fugate, 36 Mo. App. 166; Lancaster v. Elliot, 55 Mo. App. 249-254. Even though the consideration for the pleaded contract is a promise for a promise, as contended by appellant, viz., a promise to retain money from the contractor for the benefit of the plaintiff for a promise not to file a lien, yet such a contract is as valid and binding as though money had been paid, or property delivered therefor, and the parties must stand on their rights under that contract. 1 Wait’s Actions and Defenses, p. 102, sec. 11 and numerous authorities there cited. If the agreement is to be treated as a contract of waiver of lien rather than an agreement forestalling a lien then it requires even less consideration to support the waiver of lien than the contract forestalling the lien. Griffith v. Gillum, 31 Mo. App. 33-41. No lien can be established against the premises of the Columbia Real Estate & Building Company described in the petition except as incident to a personal judgment against the contractor, George R. Barr. Barr defaulted and when the court sustained the objection of the Columbia Real Estate & Building Company to the introduction of any evidence which would tend to establish a lien against its premises, plaintiff did not proceed with the trial and take a personal judgment against Barr, as it might have done, but took a nonsuit as to all the defendants. As to the Columbia Real Estate & Building Company that nonsuit was an enforced one by reason of the-adverse ruling of the court, but as to Barr it was a voluntary nonsuit. A litigant can not complain of a nonsuit voluntarily taken. State ex rel. v. Iron Co., 83 Mo. 138; Chiles v. Wallace, 83 Mo. 84; Chouteau v. Rowse, 90 Mo. 191. Having taken a voluntary non-suit as to. Barr of which it can not complain, Barr is no longer before the court, can not be brought back into the case and it follows that no lien under any circumstances can now be established against the premises described in the petition, because no personal judgment can hereafter be rendered in this cause against Barr.
   Bond, J.

The plaintiff asks for a personal judgment against the general contractor one Barr, and a lien upon the property of the owner of a building on account of material furnished in its construction. The answer of the owner admitted the making of a building contract with Barr, in consideration of which it averred that the plaintiff agreed m writing with the owner that it would furnish all the bricks required for the work of the general contractor, and expressly stipulated for a release of “all mechanics’ lien, right and interest, which it (plaintiff) would otherwise have for any material which it might thereafter furnish.” The reply qf plaintiff alleged that it ratified a written contract made by one of its employees with the defendant owner “not to file any lien on said defendant’s property for the material to be furnished and expressly waiving a right to alien” and containing no mention of the consideration of said contract; that the consideration orally agreed upon by the parties was that the owner “should withhold from Barr, the builder, all of the contract price for building the house, after payment of other inchoate liens, and out of the same to pay plaintiff for its material before paying any such contract price to Barr;” that in pursuance of such agreement the materials were furnished and used; that the owner disregarded such contract and paid over to Barr, the-builder, the entire contract price, wherefore plaintiff averred there was a failure of consideration of the contract waiving the lien, which rendered it unavailable as a defense to this action. The court sustained the objection of the defendant owner to any testimony, whereupon plaintiff took a nonsuit, with leave, and its motion to set aside the same being overruled duly appealed to this court.

Substitution of contracts. The only question for review is the ruling of the trial court upon the assumed verity of the foregoing allegations of the pleadings. The right to enforce a mechanics’ lien may be waived by contract. It is alleged in the answer, and more explicitly in the reply, that plaintiff entered into a written contract with the owner of the building, whereby such lien was expressly waived in advance for all material to be furnished to the building, which was to be paid for by the retention by the owner of a sufficient sum for that purpose out of the money due the general contractor. It was further pleaded that the material for which the lien is sought to be enforced in this action was subsequently furnished and received under the above contract, and that the owner did not carry out his contract with reference to the retention of money for its payment, but paid over the entire amount to the general contractor. An analysis of the contract pleaded shows that the consideration therefor to the owner was the release of any and all rights to a mechanics’ lien upon the proposed building; that the consideration to plaintiff was the making of a contract by the owner for the construction of a building and the reservation of enough of the contract price to pay for the material which plaintiff should furnish under a contract with the general contractor. These considerations were clearly sufficient to support the contract of waiver of a mechanics’ lien. If the right expressly waived by the plaintiff had been derived from a contract and not from a mere possibility of statutory application, still it would have been extinguished by the subsequent agreement to that effect between the parties under the well settled rule, that a valid contract made in substitution for one of a prior date, annuls the obligation of the former, and of itself furnishes a sufficient consideration for the release of the first agreement. Bishop on Contracts, sec. 68; Lancaster v. Elliott, 55 Mo. App. loc. cit. 255; Wirt v. Schuman, 67 Mo. App. 172; Pim v. Greer, 64 Mo. App. 175. This principle of the substitution of contracts, giving rise to the extinction of one by the execution of another, applies with equal, if not greater, force when the right of interest extinguished for the new agreement is neither vested, nor resting in contract, but is wholly contingent. According to the pleadings in this case at the time of its contract of waiver plaintiff had no right inchoate or otherwise to a mechanics’ lien; it had furnished no material; had no contract authorizing it so to do, nor had the owner entered into a general contract for the improvement. Plaintiff secured all this to be done in consideration of its contract of waiver and thereafter furnished the material, the payment for which the owner agreed to secure as above stated. That the owner failed to comply with its agreement in this respect, was undoubtedly a breach of contract, but that a mere breach of contract revives any prior rights which were waived or released by the terms of the contract, is a notion alike opposed to reason and authority. When a contract is broken either party may compel the other to respond in damages, but neither can treat the contract as a nullity and revive rights which were surrendered when it was entered into. The learned circuit judge evidently took this view of the responsibility of the parties under the allegations contained in their pleadings, hence there was no error in his exclusion of all testimony in the present suit to enforce a mechanics’ lien. The judgment overruling the motion to,set aside the voluntary nonsuit was correct, and it is affirmed.

All concur.  