On petition for rehearing.
Thayer, C. J.The counsel for the respondent, Bertha Kohn, ask for a rehearing in this case upon the grounds: (1) That no judgment'has ever been recovered against the original contractor, James Loynachan; (2) that the contract for the building, entered into between Bertha Kohn and Loynachan, was executed prior to the time the Act of 1885 went into effect, and by the terms of the contract of building Mrs. Kohn was *374absolutely bound to pay Loynachan the amount therein provided at a certain time, and that there was no way in which she could retain any part of the contract price for the benefit of the appellants; (3) that the statement of Ainslie & Co. was untrue, in that they state that they furnished material of the value of $668, and that nothing was paid, while the evidence tended to establish that the material they furnished was of the value of $1,268, and that $600 was paid to Loynachan; and (4) that the evidence establishes the fact that the building was completed in June, 1885, and that Ainslie & Co were too late in filing their notice. I have carefully considered these various points and am of the opinion that they are not tenable. The act does not require that a judgment shall be recovered against the original contractor; it provides “ that all persons personally liable, and all lien-holders whose claims have been filed for record, etc., and all other persons interested in the matter in controversy, or in the property sought to be charged with the lien, may be made parties; but such as are not'made parties shall not be bound by such proceedings.” If the act had required the recovery of such judgment, its efficacy as a remedy could always be defeated by the act of the original contractor. He would only have to go out of the State and remain in order to prevent the enforcement of the lien, as the service of summons could not be made upon him in such a case by its publication. The legislature could not have intended that the enforcement of the lien must depend upon any such condition; if it had, it certainly would have provided for the recovery of the judgment in some manner, where personal service of summons could not be had. The contract for the building having been executed prior to the time the Act of 1885 went into effect, and the terms of payment of contract price upon the part of Mrs. Eohn being absolute, did not relieve her from the obligation she was under to the appellants.
The act to provide for liens of mechanics, etc., and prescribing the manner of their enforcement, approved October 28, 1874, was in force at that time, which entitled the appellants to a lien to the extent of the contract price, and the terms of the *375payment were subordinate to tbe provisions of that act. The Act of 1885 continued such lien, and provided for its enforcement. Mrs. Kohn, when she made the deferred payment mentioned in the opinion herein, heretofore delivered, had a good defense against such payment. Her agreement to pay the contract price, although absolute in terms, was upon condition that Loynachan should pay the appellants, and thereby relieve her property from the lien in their favor, given by the statute. Parties contract with reference to existing provisions of law, which enter into and become a part of the terms of the contract. The statement of Ainslie & Co. was technically untrue. To have been precise, they should have set out the original amount of their claims, given the credit thereon, and have claimed the balance, but the result would have been the same. The discrepancy was so slight that it could not have misled Mrs. Kohn, and cannot, in my view, be deemed material. The other points made by respondent’s counsel in his petition for a rehearing was fully considered in the former opinion of the court, and I see no reason for changing the view there expressed regarding the matter to which it relates.
The petition must therefore be denied.