majority">Boyce, J.,

after stating the facts as above, delivered the opinion of the court:

The question raised by the demurrer to the pleas filed to the plaintiff’s statement of claim, is whether he as a sub-contractor is estopped from having a mechanic’s lien, by reason of his having become surety on the bond of the contractor, given to the agent of an undisclosed principal, the defendant and owner of the building.

First, may the defendant, the owner of the building mentioned in this proceeding, avail herself of any advantage arising from the bond in which the plaintiff is one of the sureties ? Second, whether the recital in and condition of such bond operate as a waiver of the right of the plaintiff to have a lien under the statute?

By her pleas the defendant has set up the bond of Davies, the contractor, in which the plaintiff is one of the sureties, with the averment that the plaintiff is barred and estopped from maintaining his action for a lien.

[1, 2] , As a general proposition, no one can sue on a sealed instrument but a party to it, and the expressed intention of the instrument, with respect to the question of who shall be considered the parties to it, prevails over any implied intention that the instrument was given fd.r the benefit of some other person. Jones v. Buck, 4 Boyce, 546, 90 Atl. 86.

*374[3] An estoppel by deed is operative only between parties to the deed and their privies; strangers to the deed are not bound by, nor can they invoke the estoppel. Bigelow on Estoppel, 365; 10 R. C. L. 839; 16 Cyc. 710.

It is the opinion of the court that the bond relied on is not effective as an estoppel against the plaintiff’s action.

[4] The stipulations in the contract respecting liens do not specifically provide against liens, but rather for indemnity in case of liens or claims, and the condition of the bond in this respect is less specific than the contract.

The language of the contract contemplates the possibility of liens, and from anything in the bond it does not appear that it was intended as a waiver of . the rights of the parties thereto to have liens, if entitled under the statute.

The plaintiff is, therefore, not barred from maintaining his action. '

The demurrer to each of the pleas is sustained.

Citation profile

How this case has been treated — in progress