I concur with the main opinion, and in remanding the case for a determination of facts necessary to settle the controversy. But in view of such remand, I desire to add certain observations concerning the waiver of the right to a lien, even though the principle I espouse is not necessarily involved in the facts presently shown herein.
It must be recognized that after a right to receive money, including wages, has accrued, it is a legitimate subject of waiver.1 However, with respect to the waiver of the right to liens which may accrue in the future, the situation is somewhat different. A primary purpose of the lien statutes is to guard against a laborer (or a material supplier) from working on a building and being cheated of the reward of his labor and thus avoiding evil consequences to him, his family, and the economy generally. If he can be required to sign away his rights prospectively, the purpose of the statute can be (and likely will be) defeated. Because of the fact that such agreements to waive future rights to liens are in contravention of the law and its purpose, I think that courts should refuse to enforce such a covenant to waive rights to liens which may accrue in the future as being contrary to the law and public policy.2 By way of analogy, the same as the court would ordinarily refuse to enforce a covenant to waive a right for redress for future negligence, or for loss by embezzlement, or for assault and battery, or other wrongful injury, which would have the effect of giving the promisee license to violate his duty under the law to the promisor.
MAUGHAN, J., concurs.