38 P. 639 | Cal. | 1894
This action is brought to foreclose a number of mechanics’ liens, and Henry Blyth appeals from the judgment. A written contract was entered into between Luigi Torre and Antonio Raffo, the owners of certain land, and a contractor, Gardiner, for the erection of a building thereon. The contract was for an amount in excess of $1,000, and was not filed in the recorder’s office, but a memorandum
We think the lower court’s position unsound as to the estoppel. The necessary facts to constitute an estoppel do not arise in this case. Plaintiff has a cause of action which he is entitled to litigate, and this bond, given .to the owner to secure him from loss against the default or negligence of the contractor, in no way bars him from coming into court with his cause of action. The bond is simply to indemnify the owner against damage, and until his damage has been alleged and proven in some appropriate action it can avail him nothing. If he has not been damaged, he has no right of action upon the bond; and, if no right of action upon it, it is valueless to him, even for the purpose of an estoppel. The case appears to have been considered as though the presentation of the bond in open court at the trial ipso facto es-topped plaintiff from taking any other step in the prosecution of his action, and this, too, regardless of the amount of the bond, as compared either to the amount of plaintiff’s claim or the amount of defendants’ damage. If defendants’ damage is nothing, or trifling in amount, plaintiff should not be deprived of all remedy; or, if plaintiff’s indemnifying bond is trifling in amount, as compared to his claim of lien, the doors of the courts should not be shut against him. In other words, the principle of estoppel is not involved, but it is rather a question of a cross-complaint or setoff. The defendants, in answer to plaintiff’s action to foreclose his lien, may set out the bond, prove their damage, and establish plaintiff’s liability thereon, and the rights of both parties be thus fully and equitably adjudged. Such was the course pursued in Blyth v. Robinson (Cal.), 37 Pac. 904, and such is undoubtedly the proper course. For the foregoing reasons the judgment is reversed and the cause remanded.
We concur: Harrison, J.; Van Fleet, J.