The opinion of the court was delivered, by
Thompson, J.— There is certainly force in the position of the counsel for the defendants in error, that the plaintiffs’ only point, strictly speaking, was of' no practical consequence, and even if the answer was not strictly accurate, it would avail them nothing. They requested the court to charge, “ that as the contract was entire, the owner could not waive the completion of any material or substantive part of it, in favour of the contractors so as to enable them to file their lien on the entire contract, to affect the interest of other lien-creditors ; the waiver not being recorded or any notice given of it.”
The parties contesting the validity of the lien on this ground were not lien-creditors at the date of the settlement and waiver, nor for some days thereafter. They were therefore not embraced by the principle asserted in the point at all; and those who were lien-creditors at the time made no complaint. But perhaps we should consider the point in a broader sense, and as asserting that on account of a waiver of a portion of an entire contract this alone would render invalid the lien as to' subsequent creditors, independently of any question of actual fraud, but simply on the ground of a want of compliance with the statute.
It is very questionable if the' item of plastering, the matter waived, was embraced by the contract at all. Certainly it was not specified in it, and so Mr. Taylor admits in the settlement. Even if the contract for building had been recorded, and had thereby been made notice, the item waived would not have appeared, nor do I think it necessarily included in the general terms used for creating an encumbrance. The other alleged unfinished items were neither insisted on nor waived in the settlement ; for by the exoress terms of the contract, they seem to *194have been left to future determination, as the builders, who were to be the tenants, might choose. These views might perhaps suffice to show that the position assumed in the point, of the invalidity of the lien was not sound. But we think it too well settled to admit of dispute, that if full performance in minor particulars be dispensed with by the party to whom it is due, this will not prevent the builder from filing his lien on the contract upon the same principle upon which he would declare in a suit where performance had been prevented or dispensed with by the defendant. That a mechanics’ lien under such circumstances m'ay be filed, Young v. Lyman, 9 Barr 449, and The Bank of Pennsylvania v. Gries, 11 Casey 423, are authorities in point. But this is not to say that the contractor would be entitled to full compensation as to full performance. This is not our question: it is, can a valid lien be filed under such circumstances at all ? And we think it can. No collusion to cover property for the benefit of the owner, or to hinder and delay creditors, is alleged; or that the lien filed did not honestly represent a claim fully and fairly earned. The case was put upon the simple allegation that the dispensation with the performance of an item in an entire contract, consisting of many separate items, if indeed it was any part of it, by the parties, on final settlement rendered the whole void as to subsequent lien-creditors. In the absence of fraud, I see not what right the creditors have to rip up the settlement of the parties. If they could do that, on the same principle it seems to me they might claim to invalidate the lien, because the original contract was too liberal in price. Self-interest, in the absence of fraudulent motives, is regarded by the law as a sufficient guaranty that men will not pay, or agree to pay, more than they ought to pay when liquidating their transactions, or agree that contracts in their favour are complied with when they are not; and for this reason these contracts, be they settlements or otherwise, are allowed to stand when unimpeached in their honesty. It would lead to frightful litigation if creditors might attack all liens where complete performance was defective in some inferior particular, but which the parties, judging honestly for themselves, thought proper not to insist on. Such a principle carried to its legitimate results, would disturb half the judgments confessed on settlements throughout the country. It is not of course to be inferred from this, that a lien may he filed during the progress of the work, or otherwise than upon its actual or virtual completion. There is no error in the record, and the
Judgment is affirmed.