268 P. 332 | Cal. | 1928
This action was one commenced by the plaintiff, purporting to act as the assignee of a number of labor claimants who are alleged to have performed work and labor upon certain real property owned by the defendant Hensen, which consisted in and contributed to *339 the construction, alteration and repair of an oil-well upon the defendant's property and for which the persons performing the same claimed they were entitled to laborers' liens thereon. The property in question had been leased by Hensen and his wife to a certain voluntary association known as Motion Picture Oil Syndicate No. 1, which had theretofore been authorized by the corporation commissioner of the state of California to transact business within this state, and which association, after procuring said lease, had entered into a contract with the Hogan Drilling Company, a corporation, to drill an oil-well thereon, in the course of which the Hogan Drilling Company are alleged to have employed the laborers, some sixteen in number, who assigned their labor claims to said plaintiff. The answer of the defendant Hensen herein contains specific denials of practically all of the allegations of the plaintiff's complaint, and in addition thereto contains certain specific defenses, among which is the defense that Hensen had within due time filed and recorded the notice of nonresponsibility provided for in section 1192 of the Code of Civil Procedure. The trial court at the close of the plaintiff's case granted a motion for nonsuit and having done so made and entered its judgment in favor of defendant Hensen thereon. It is from such judgment that this appeal has been taken.
[1] It is the contention of the appellant that the evidence sufficiently showed that the persons who were alleged in the complaint to be the assignors of the plaintiff performed the work and labor referred to in said complaint and upon which their respective claims of laborers' liens under the provisions of section
[2] The respondent makes the further contention that the aforesaid assignment was invalid for the reason that it was not signed or otherwise consented to in writing by the wives of the assignors; but this contention is without merit for the reason, among others, that there is nothing in the record tending to show that there were any wives of the assignors, or any of them.
[3] The respondent makes several other contentions with regard to the state of the evidence which may be briefly disposed of. As to the proof of lease between the Hensens and the Motion Picture Oil Syndicate the defendants Hensen in their answer alleged the existence of such a lease and referred to the record thereof, and by so doing obviated the necessity of proof thereof or of its contents on the plaintiff's part. [4] As to the proof that the oil-well in connection with which the plaintiff's assignors *341 and each of them performed labor under employment by the Hogan Drilling Company through its authorized agent, there is ample evidence going to show that the Hogan Drilling Company was engaged in the drilling of said well upon the defendants' premises under some sort of an arrangement with the Motion Picture Oil Syndicate, the defendants' lessee, giving it the right so to do, and the plaintiff's assignors were its employees in that undertaking, and that they and each of them performed labor for the period of time and at the rate of wages covered by their respective labor claims and liens, and that the wages which they were to receive for so doing were in accordance with the union scale of wages. This evidence, whether presented by the plaintiff, either in actual testimony or of offers of proof at the trial, was sufficient to satisfy the requirements of law upon a motion for nonsuit.
The respondent makes several other assignments of insufficiency in the plaintiff's case, which, without specification, but upon an examination of the record, we hold to be unmeritorious. [5] This leaves us the only remaining question in the case the question as to whether the plaintiff had sufficiently shown an absence on the part of the defendant Hensen of compliance with the precise requirements of section 1192 of the Code of Civil Procedure. This section, among other things, requires the posting of a notice of nonresponsibility upon the premises by the owner or owners thereof. The plaintiff produced at the trial a considerable number of the persons whose names are represented in these assigned labor claims and who each positively testified that no such notice as the statute requires was ever posted upon the property during the time they were performing work thereon; and while it is true that the defendant Hensen, when examined as a hostile witness and as a party under the provisions of section 2055 of the Code of Civil Procedure, testified that he had posted such a notice upon the premises, he admitted that he did not record such notice until the work covered by these labor claims had been practically completed, and when for the first time he learned that these laborers were not being paid. The foregoing evidence was, we think, amply sufficient to show noncompliance on the part of the defendant Hensen with the aforesaid provisions *342 of the code, and was, therefore, with the other evidence introduced or offered by the plaintiff, sufficient to make out aprima facie case and to require a denial of the said defendant's motion for a nonsuit. It follows that the trial court was in error in granting said motion and in the entry of its judgment thereon.
The judgment is reversed with the instruction to the trial court to enter an order denying the motion for nonsuit, and, having done so, to proceed with the trial of the cause.
Shenk, J., and Tyler, J., pro tem., concurred.