This was a scire facias sur mechanic’s lien. The court below entered judgment against the defendants for want of a sufficient affidavit of defence. The affidavit was made and filed by the attorney for Mrs. Brice, the owner, in which he averred that, by the agreement between the contractor and the owner for the erection and construction of the house, it was expressly agreed that no lien should be entered against the building. A copy of said contract was attached to the affidavit, from which it appears that it contains this clause: “ And it is further agreed that the party of the first part will not at any time suffer or permit any lien, attachment or other incumbrance, under any law of this state or otherwise, by any person or persons whatsoever, to be put or remain on the premises, into or upon which any work is done or materials are furnished under this contract for such work and materials, or by reason of any other claim or demand against the party of the first part, and that any such lien, attachment or other incumbrance, until it is removed, shall preclude any and all demand for any payment whatsoever, under or by virtue of this contract.”
*155It was not denied that this agreement is in the direct line of the decision in Schroeder v. Galland, 134 Pa. 277, but it was urged that the affidavit having been filed, by the attorney for the defendants, and no reason given therein why it had not been made by the defendants themselves, it could not be considered by the court. The record shows, however, that an affidavit was subsequently filed by Jane Mercer Brice, one of the defendants, in which she avers that the affidavit filed by her counsel is correct and true, that the contract set forth therein is a copy of the contract between herself and the contractor, under and by virtue of which the house covered by the said mechanic’s lien was constructed; that the said plaintiff was a subcontractor under Albín Hall, the original contractor, and that, at the time her said counsel filed his affidavit of defence in her case, she was absent from her home, out of the state of Pennsylvania, and in the south.
It was contended for the plaintiff that, under the rules of the court below, the defendant was not entitled to file this affidavit, and that it was improperly upon the record. It is not necessary that we discuss the rule of the court below. Had the affidavit been improperly filed, the obvious course for the plaintiff was to move to have it taken off the file. No such motion appears to have been made, and we are bound to presume that what appears upon the record, unchallenged, was properly placed there. It lies directly across the plaintiff’s path, and cannot be brushed aside in this summary manner. When there is anything upon the record at the time a motion is made for judgment for want of a sufficient affidavit of defence, which shows, for any reason, that the plaintiff is not entitled to judgment, it is the duty of the court to deny the motion and send the case to a jury. It clearly appeared by the contract, a copy of which was before the court, that a subcontractor had no right to lien the building in question. It was therefore error to make the rule for judgment absolute.
The judgment is reversed and a procedendo awarded.