
    ACTION ON A CONTRACT FOR. ERECTION OF ELEVATORS.
    Circuit Court of Hamilton County.
    The H. J. Reedy Company v. Charles L. Harrison et al.
    Decided, July 29, 1911.
    
      Action Prematurely Brought — Contract for Work to. he Delivered, Free from Liens — Not Fulfilled, When.
    
    Where a contract for the erection of certain elevators provides that the work shall be delivered free from all claims, liens or other charges, an action for recovery of balance due is prematurely brought where instituted while there is in force a mechanic’s lien in favor of a sub-contractor.
    
      Healy, Ferris & McAvoy, for plaintiff in error.
    Stephens, Lincoln & Stephens, contra.
    Smith, P. J.; Swing, J., and Jones, J., concur.
   The action below was to recover a balance due for the erection and construction of certain elevators in the building situated at the southwest corner of Fourth and Elm streets, in Cincinnati. Ohio, as per a certain contract entered into between the parties hereto.

At the close of plaintiff’s evidence, the trial court dismissed the action without prejudice on the ground that the same had been prematurely brought. The contract provided, among other things, "that the work was to be delivered to the owner completely finished and free from all claims, liens and other charges with the utmost dispatch. That payments on account should be made upon the written certificate issued by the architect from timé tó time as the work proceeded, and that a final settlement as to the remainder, and for all extras, if any, should be had and payment made forty days after the work should have been completed, free from all liens, charges, and claims whatsoever and after the architect should have so certified in writing. ” i

The evidence discloses that these clauses' in the contract were not carried out on the part of plaintiff in error, but on the con trary, a sub-contractor, the Marine Engine & Machine Company, a non-resident of Ohio, on June 4, 1910, filed a petition with the court of common pleas of this county against plaintiff in error and. defendants in error,, setting'up a mechanic’s'-li'en fipon said property, which it. claimed to hold, asking .that.said claim be declared a lien on the premises and that the same be sold in satisfaction thereof. ’

It would seem under this state of the record that the fulfillment of this part of the contract on the part of plaintiff in error was a condition precedent to final payment or suit, and is in the contract, without doubt, for the protection of the owners. Titus v. Gunn, 69 N. J. L., 410; Leverone v. Arando, 179 Mass., 439.

Indeed, the application 'of plaintiff in error to have the Marine Engine & Machine Company made a party defendant in this case. would seem to indicate that it asserted a claim or: lien, and a§ the work was to be delivered by the contractor free from all liens or claims, this was a requirement which the plaintiff in error,had not fulfilled prior to its suit upon the contract.

We think the court, therefore,- committed no :error in dismissing, the. action -without prejudice to the bringing, of a new-sub whenever the conditions precedent on its part to be performed had been so performed.

Judgment affirmed.  