Cox v. Western Pacific Railroad

44 Cal. 18 | Cal. | 1872

By the Court, Rhodes, J.:

The contract entered into between McLaughlan and Cox, Myers & Co. is an entire contract. The provision for the payment for the work, etc., from time to time, according to estimates to be made, does not change the character of the contract in that respect, and make it severable.

It is not alleged in the complaint that the work contracted to be performed has been completed, nor that its performance has been prevented by McLaughlin or either of the defendants, nor that the contract has been rescinded. The statute under which the lien in this case was filed does not contemplate that a contractor or sub-contractor may, from time to time, as the work progresses, file successive liens for work and materials performed and furnished under an entire contract; but he is entitled to acquire only one lien, and for this purpose his claim must be filed within the time specified in the statute, after the completion of the work. It, therefore, does not appear from the complaint that the plaintiffs were .entitled to a lien at the time when they filed their account in the Eecorder’s office.

The lien was filed only upon a portion of the road. The statute, in our opinion, clearly contemplates that a lien, when it attaches, shall bind the whole structure. It would render the statute absurd to hold that one contractor .or subcontractor could acquire a lien upon a bridge, another upon a tunnel, and a third upon a culvert, all of which constitute portions of a railroad; but that interpretation would do no greater violence to the intention of the Legislature than a construction which would permit a lien to be acquired upon each mile or section of the road.

Ho personal judgment was rendered, and it, therefore, becomes unnecessary, for the purposes of this appeal, to determinejvhether the Court erred in respect to the amount remaining due to the plaintiffs, or in allowing interest on such amount, or iu refusing to find upon the issue of fraud, which was tendered by the defendants.

Judgment reversed, and cause remanded for a new trial.'

Mr. Chief Justice Wallace and Mr. Justice Crockett, being disqualified, did not sit in this case.