Coss v. MacDonough, S. F. No. 221

S. F. No. 221 | Cal. | Mar 23, 1896

Garoutte, J.

This appeal involves the correctness of a judgment in three consolidated actions for the foreclosure of liens against the property of the defendant MacDonough for materials furnished and labor performed in the construction of a building upon certain property of his, situate in the city of Oakland, and described in the complaints. Defendant appeals from the judgment. It is first insisted that some of the claims of lien were prematurely filed, and that others were filed too late. The court found as a fact that the building was completed April 10,1893, and if that finding has support in the evidence, then all the claims of lien were filed within thirty days thereafter. The building to be erected was of large size, costing a quarter of a million dollars, and different contracts were let by the owner for the construction of various portions of it, and among these contracts let was one for the construction of an elevator. The trial court held that the elevator was an essential and necessary part of the building, and that the completion of the building dated from the completion of the elevator, the work upon this elevator being the last work done. While there may have been a little work done on the elevator upon the eleventh and twelfth days of April, it must of necessity have been of trifling character, and the finding of the court as to the date of completion will not be disturbed for that reason. For as said in Willamette etc. Co. v. Kremer, 94 Cal. 208: “Whether the items of work which were done after the date at which the appellant claimed the building was completed were a ‘trivial imperfection’ was also a matter of fact to be determined by the court.” Again, we have no doubt of the soundness of the trial court’s views in holding that the elevator was a substantial and necessary part of the building, and, until the elevator was constructed and placed in position, it could not be said that the building was completed. An elevator was called for by the original plans and specifications; a contract was let for its construction at the same time that other contracts were let. It was attached to the building, and formed an integral part thereof. The fact that the building might have been used without it, and that it was a convenience merely, is immaterial. That is not the question. Conceding an elevator in this character of .building to be a mere convenience, which would seem not to he the fact, still conveniences are a material part of the building when provided for by the plans and specifications; and when so provided for, the building is not completed until the demands of the plans and specifications in this regard have been satisfied.

Appellant now makes objection to the sufficiency of the complaint, and the allegations of the claim of lien of respondent Goss as to the description of the land to be charged with the lien. But appellant offered no demurrer to the complaint at any time; neither did he object to the sufficiency of the claim of lien in this regard when offered in evidence at the trial in the lower court. And upon an examination of both the claim of lien and the complaint based thereon, we find nothing of sufficient importance omitted therefrom to authorize this court in the first instance to interfere. The objections are too technical to be raised in this court for the first time. As a fair illustration, it is claimed that the complaint should have stated that the claim of lien contained a “ description of the property sufficient for identification.” As a matter of fact, the claim of lien contained a description of the real property, and the complaint so alleged the fact. Nothing more is demanded by the statute.

At the trial appellant moved for a nonsuit against the respondent Grubb, because his claim of lien did not state the terms, time given, and conditions of his contract, and because there was no money due by the terms of his contract; and the motion was granted as to the first count of his complaint. His complaint was set out in two counts: 1. That he was a subcontractor of one Andrews; and 2. That he furnished the materials and performed the labor at the personal instance and request of appellant MacDonough. His recovery of a judg. merit is based upon the second count, the court having held the contract between MacDonough and Andrews to be void. It is now contended that a fatal variance exists between the claim of lien and the count in the complaint upon which recovery was had. It is insisted, the claim of lien having set up a contract between respondent Grubb and the original contractor Andrews, no recovery could be had upon a complaint setting out a contract with defendant MacDonough, the owner. We think this contention unsound. That a complaint against the owner of the building may be filed under section 1184 of the Code of Civil Procedure, upon a claim of lien setting up a contract with an alleged original contractor, is expressly held in Henderson Lumber Co. v. Gottschalk, 81 Cal. 646, and the principle is also fully supported in Yancy v. Morton, 94 Cal. 558" court="Cal." date_filed="1892-05-24" href="https://app.midpage.ai/document/yancy-v-morton-5445981?utm_source=webapp" opinion_id="5445981">94 Cal. 558.

We do not think there is anything in the point that respondent Grubb was an original contractor. It is held to the contrary in Davis v. MacDonough, 109 Cal. 547. Neither was the verification of the claim of lien premature-.

For the foregoing reasons the judgment is affirmed.

Harrison, J., and Van Fleet, J., concurred.