75 P. 843 | Cal. | 1904
This action was brought by the assignee of various parties who furnished materials used in the construction and equipment of the steam vessel Santa Ana against the owner of said vessel, to have the amount due therefor determined and adjudged a lien upon the vessel, and to have the vessel sold in satisfaction thereof.
Plaintiff had judgment, and defendant duly made a motion for a new trial, which motion was granted by the trial court. This appeal was taken by plaintiff from the order granting defendant's motion for a new trial.
All of the materials for which it is here sought to enforce a lien were furnished by mercantile firms and corporations doing business in the city and county of San Francisco, state of California, to the firm of H.R. Reed Son, shipbuilders at Coos Bay, in the state of Oregon, to be used by them in the construction of "a vessel" then building at Coos Bay, Oregon. Said Reed Son had entered into a contract with defendant, a resident of San Francisco, California, to construct for him the hull of a vessel at said Coos Bay, for the sum of $25,280, and to deliver the same to him at the place of building, free from all liens. In pursuance of such contract, Reed Son constructed the hull of the vessel Santa Ana at said place, and the vessel was finally launched by them at said place, and there delivered to defendant. When so delivered the contract had not been entirely fulfilled, but defendant completed the hull in Oregon sufficiently to enable him to tow her to San Francisco, and at the time this action *241 was begun he was engaged in putting in her engines and in completing her hull and equipment in San Francisco Bay.
The materials in question were ordered by Reed Son through their agents in San Francisco, and were charged upon the books of the vendors against said Reed Son, and in some instances against their San Francisco agent. They were packed by the vendors in San Francisco, there marked and labeled, addressed to "H.R. Reed Son, Coos Bay, Oregon," and by the vendors delivered to steamship companies in San Francisco, to be delivered as addressed. They were so delivered by the steamship companies at Coos Bay, Oregon, and, having been there received by Reed Son, were by them there used in the construction and equipment of the hull of the Santa Ana, before the launching thereof and the delivery to defendant. The contract between Reed Son and defendant provided that all of the property in said vessel, as the same progressed in construction, should immediately pass to and be vested in defendant.
Upon these facts, defendant moved for a nonsuit upon the ground that the evidence failed to show any cause of action against defendant or for a lien against the vessel. This motion was denied, and the ruling of the court denying such motion was assigned as error.
Defendant introduced evidence showing that he did not order or purchase any of said materials, or use any of the same in constructing, repairing, or equipping the vessel in the state of California, and also that he had paid said Reed Son for the construction of the vessel all but about ninety dollars of the contract price.
The findings of the court were attacked, especially those to the effect that the materials were furnished or delivered to Reed Son at the city and county of San Francisco, for the construction and equipment of said vessel Santa Ana.
The only basis of plaintiff's claim against the property of defendant, who was in no way personally liable for the value of the materials sold and delivered to Reed Son, and of whose interest in the vessel plaintiff's assignors apparently had no knowledge at the time of furnishing the materials, is section 813 of the Code of Civil Procedure, giving a lien on vessels in certain cases. That section provides, among other things, that all steamers, vessels, and boats are liable "for *242
work done or materials furnished in this state for their construction, repair or equipment," that demands for such causes constitute liens thereon, but that "such liens only continue in force for the period of one year from the time the cause of action accrues." Conceding that the delivery of the materials in San Francisco by plaintiff's assignors to common carriers for Reed Son, the shipbuilders, was a delivery to the shipbuilders sufficient to bind them personally, it was not the "furnishing" of the materials "for the construction of the vessel" contemplated by the statute. Such a delivery to the shipbuilders could not of itself create a lien, for the materials so furnished might never find their way to the vessel or be used for the benefit thereof. The theory upon which such a lien is given upon the property of one who is in no way personally liable for the debt is, that the services or materials secured thereby have gone into the property, and that those who furnished them have in part created the very property to which the lien attaches. As is claimed by plaintiff's counsel, the subdivision of section 813 of the Code of Civil Procedure relative to liens on vessels for materials furnished for their construction and the sections of our law relative to mechanics' liens on buildings and other structures derive their being and authority from one common source, — viz., section 15 of article XX of the constitution of this state. That section provides that mechanics and materialmen shall have a lien upon the property "upon which they have
bestowed labor or furnished material, for the value of such labor done and material furnished." Section 1183 of the Code of Civil Procedure, providing for liens upon buildings and other structures, declares that "mechanics, materialmen, . . . performing labor upon or furnishing materials to be used in the construction . . . of any building, . . . shall have a lien upon the property upon which they have bestowed labor or furnished materials," etc. It is firmly settled in this state that, although materials may be furnished with the agreement that they are to be used in a specified building, the materialman will have no lien upon that building for the value of any such materials that are not actually used therein. (Silvester v. Coe Q.M. Co.,
Plaintiff, to sustain his claim that the materials were "furnished in this state," relies upon the case of Tibbetts v.Moore,
Construing the subdivision of section 813 of the Code of Civil Procedure in question strictly in pari materia with the Mechanics' Lien Law, we are satisfied that it gives a lien for materials furnished to the contractor for the construction of a vessel only when the materials are furnished "to the vessel" in this state. (See in this connection Phœnix Iron Co. v. VesselsHopatcong, etc.,
The question as to the proper construction of other subdivisions of section 813 of the Code of Civil Procedure relating to liens for services rendered on board and supplies furnished *245 at the request of "owners, masters, agents, or consignees," and for non-performance or mal-performance of contracts for transportation made by "owners, masters, agents, or consignees," is in no way material to the question here involved.
The order granting a new trial is affirmed.
Shaw, J., and Van Dyke, J., concurred.