22 P. 391 | Cal. | 1889
This action was brought to recover judgment for a balance due for powder and other explosive materials sold by plaintiff to defendant for use, and actually used, upon defendant’s mining property in Nevada county, and to enforce a lien therefor on the property. The complaint was demurred to on the ground of ambiguity, the demurrer was overruled, and thereupon the defendant answered. After trial, judgment was rendered in favor of plaintiff for the amount prayed for, including an attorney’s fee, and the whole amount was declared to be a valid lien upon the property. The appeal is taken by defendant from the judgment, and an order denying a new trial.
The court found upon every issue in favor of plaintiff. The appellant concedes that the finding as to the amount of the indebtedness was authorized, and no objection is made to the judgment in so far as it relates to that indebtedness; but it is contended that plaintiff was not entitled to a lien, and that the'part of the judgment which awarded an attorney’s fee, and declared the judgment a lien upon the property, was erroneous. It is admitted that, if plaintiff was entitled to a lien, the amount awarded as an attorney’s fee was reasonable and proper. The material facts of the case are, in substance, as follows: Plaintiff was a corporation, organized in this state, and engaged in the business of manufacturing powder and other explosives. Defendant was a foreign corporation, engaged in the business of mining in Nevada county, in this state. In 1875, defendant, by its attorney in fact and general manager, Thomas Price, entered into a contract with plaintiff, by which plaintiff agreed to furnish defendant with all the powder, caps, and fuse it should need to develop and work its mine, the materials so furnished to be paid for upon the delivery of each parcel thereof, or as soon thereafter as might be, and, in case of delay in payment, the amount delayed to bear interest at the rate of one per cent per month. No specific quantity was named, but plaintiff was informed
1. The demurrer was properly overruled. We see no material ambiguity or uncertainty in the complaint, and no argument upon this point is made for appellant.
2. It is contended that the notice of lien was insufficient, because the contract set out had no date, and the notice did not specify any time when the contract was made, or when any transaction was had between the parties. All that the law required a claimant to state in his claim of lien, as to the contract, was “the terms, time given, and conditions of his contract” (Code Civ. Proc., sec. 1187); and it has been held that the words “time given” mean not the date or time when the contract was made, but “the time of payment for the work and labor performed and materials furnished, as agreed on and expressed in the contract”: Hills v. Ohlig, 63 Cal. 104. The terms, time given, and conditions of the contract under which the materials were furnished in this case, as stated in the claim of lien, were that the plaintiff (naming it) “should, and it undertook that it would, thereafter, continuously, and
We find nothing in the law requiring any statement in the claim of lien as to the date of the contract, or as to when the transactions were had between the parties, and in our opinion the notice filed by plaintiff was in substantial compliance with the requirements of the statute.
3. It is next contended that the notice of lien was prematurely filed. This contention is based upon the provisions of the Code of Civil Procedure, fixing a time within which a notice of lien must be filed. The provision is that all persons other than original contractors (and that plaintiff was not an original contractor, see Sparks v. Mining Co., 55 Cal. 389, and Schwartz v. Knight, 74 Cal. 432, 16 Pac. 235) must file the notice within thirty days after “the completion” of the improvement, alteration, etc. It is alleged in the complaint that “the construction, alteration, and repair of said mining claim, ditch, ditches, aqueducts, tunnels, and other structures on said premises, has been, during all said time, kept up by said defendant, and the same has not been completed.” And it is argued that if there had been no “completion” the notice was premature. The record shows that the defendant’s mining claim embraced six hundred and forty acres of mineral land; that defendant had been mining on the claim for eight years, and only about fifteen acres had been worked off; that the operations carried on were the ordinary operations of hydraulic mining, and that the powder used for the mine was used in blasting down the banks, and in pulverizing the cement. It is evident that work upon a mine like this is continuous in its nature and has ho definite completion, but may go on for fifty years or more. The statute, therefore, cannot have reference to the work upon the mine as the thing to be
4. It is next urged that the claim, if not filed too soon, was filed too late, and was therefore invalid. The argument is based upon the fact that all the materials for which a lien is claimed were sold and delivered by plaintiff to defendant more than thirty days prior to November 1, 1883. But the right to a lien did not attach when the materials were furnished. To give it that right it was necessary for the plaintiff to show not only that it had sold the materials to be used on the defendant’s mine, but that they had actually been so used: Silvester v. Mine Co., 80 Cal. 510, 22 Pac. 217 (opinion filed September 11, 1889). Evidently, when a party obtains blasting powder to be used in mining operations, as in this case, very little, if any, of it would ordinarily be used on the day of its delivery, and most or all of it might not be used for days or months thereafter. Here it appears that all the powder furnished by plaintiff had been actually used by defendant when the lien was filed, but it does not appear at what particular time or times the last of it was so used. It must follow, therefore, that the plaintiff did not lose its right to a lien because of its failure to file its claim within thirty days after the materials were furnished.
5. It is not questioned that a materialman may have a lien in a case like this, and that he can have one: See Giant Powder Co. v. Flume Co., 78 Cal. 193, 20 Pac. 419. This being so, the question remains, Was the plaintiff's claim filed in time? The only provision of the statute upon the subject is that “every person, save the original contractor, claiming the benefit of this chapter, must, within thirty days after the completion of any building, improvement, or structure, or after the completion of the alteration or repair thereof, or the performance of any labor in a mining claim, file for record,” etc.; Code Civ. Proc., sec. 1187. There was, however, as we have seen, no completion of the improvement of the mine, or of the alteration or repair thereof. The language quoted is therefore not strictly applicable to the case in hand, and no definite time was fixed within which
It results, in our opinion, that the judgment and order should be affirmed.
We concur: Foote, C.; Gibson, C.
For the reasons given in the foregoing opinion the judgment and order are affirmed.