Bryan v. Abbott, 63 P. 363

Bryan v. Abbott

63 P. 363 | Cal. | 1900

Action brought to enforce a lien for work and materials in laying cement sidewalk and curb and constructing cement steps on the sidewalk leading up to the doorways.

Defendants severally demurred to the second amended complaint, the demurrers were sustained, and, plaintiff failing to amend, judgment of dismissal was entered and plaintiff appeals.

The contract was made, the work performed and notice of lien filed by William McDonald, who assigned his claim and demand to the plaintiff. The demurrer is general and special.

1. The notice or claim of lien stated "that Seth Abbott is the name of the reputed owner of said premises, and caused and requested said William McDonald to perform said labor and furnish said materials"; and the complaint alleges: "That at all the times herein mentioned said defendant, Seth *224 Abbott was the owner and reputed owner and in possession of and personally occupied the following described real property," describing it.

Respondent contends that the recorded notice of lien is insufficient because it does not state the name of the owner of the premises sought to be charged with the lien.

It is sufficient if the name of the reputed owner only is given. (Corbett v. Chambers, 109 Cal. 178, 184.) The case ofSanta Cruz Rock Pav. Co. v. Lyons, 117 Cal. 212,¹ cited by respondent, does not either directly or indirectly hold that the recorded notice of lien must state the name of the owner, but the reasoning of the case and the conclusion reached is entirely consistent with Corbett v. Chambers, supra, where it was said: "The provision therein that the claimant shall give the name of the owner or reputed owner, if known, implies that, if he does not know the name of the owner, he may state this fact, and perfect his lien without naming an owner (West Coast Lumber Co.v. Newkirk, 80 Cal. 275); and also, that if in good faith he gives the name of a reputed owner, he shall not lose his lien if he shall afterward ascertain that some other person was the owner."

Here the demurrer admits that Seth Abbott, who was described in the notice as the "reputed owner," is the "owner" of the premises sought to be charged with the lien; and if Seth Abbott, as owner, examined the records in the recorder's office, as the law presumes he did, the false description, "reputed owner," could hardly lead him to doubt his identity.

2. The notice of lien, after describing the work, stated there was "no time specified for the commencement or completion of the work, . . . . payment to be made in United States gold coin upon completion of the work or as required in its progress." Attached to the complaint, and made part thereof, is a copy of the notice of lien, and in the complaint it is alleged "that no time for said payment was or is stated or set forth in said contract or agreement."

It is contended that the allegations of the complaint are inconsistent with the notice of lien attached as an exhibit, and that the complaint is therefore demurrable for uncertainty or ambiguity. *225

I think no one could be deceived or misled in this particular. The allegation in the complaint is that no time for payment was or is "stated or set forth" in the contract. That is literally true, though the law construes the contract to require payment upon the completion of the work, and therefore the time of payment, though not the date, is fixed.

3. The complaint states that the contract was for the construction of a cement sidewalk and cement curb "in front of and adjoining the lot" described; while the contract set out in the claim of lien was to construct a sidewalk and curb "around that certain premises," etc.; and respondent makes the point that the complaint is uncertain in this respect. A diagram of the property is attached to the complaint, showing the curb and sidewalk along the side and across the end of the property, being all of it that bordered on any street. We would not like to say that the defendant, the owner and occupier of the property, misunderstood the expression "around" as here used, or had any doubt as to its meaning. The defendant had personal knowledge of the work done and cannot avail himself of a demurrer upon the ground that the description of the work is ambiguous. (Doe v.Sanger, 78 Cal. 150.)

4. Section 1191 of the Code of Civil Procedure provides for a lien for improving the street or sidewalk, etc., in front of "any lot in any incorporated city or town," and it is objected that in the notice of lien and complaint it is not stated that said property is in an "incorporated city or town."

The property is described as "situate in the city of San Diego, county of San Diego, state of California," and the court will take judicial notice that the city of San Diego incorporated. (Code Civ. Proc., sec. 1875; Diggins v. Hartshorne, 108 Cal. 157. ) The judgment should be reversed, with directions to the court below to overrule the demurrer.

Cooper, C., and Chipman, C., concurred.

For the reasons given in the foregoing opinion the judgment is reversed, with directions to the court below to overrule the demurrer.

McFarland, J., Temple, J., Henshaw, J.

¹ 59 Am. St. Rep. 174. *226