This is а suit which includes several actions consolidated into one, to recover judgment against the defendant McMeekan for the sum of $4,784.71, and to enforce mechanics’ liens as security for its paymеnt, upon the premises described in the complaint as the property of the defendant Greene.
It appears by the record, that on the 22nd day of September, 1875, the defendant McMeekаn made a contract with his co-defendant Greene to build for her several houses upon her land in the city of San Francisco for the sum of $24,000, payable in nine installments, from time to time, as the work prоgressed; and it was part of the contract that the houses were to be completed on or before the 11th day of February, 1876; that McMeekan was to furnish all labor and material necessary and proper to finish the work, and if he failed to complete the buildings within the time stipulated, he was to forfeit $35 a day for every day over the contract time. McMeekan commenced the
By part 3, title 4, chapter 2, of the Cоde of Civil Procedure, the principal and subsidiary contractors in a building contract, who by their skill, labor, or materials, create or improve the property of another, are entitled to a lien upon the property itself to secure payment of the value of the services, or the material furnished, within the limits of the price as fixed by the contract between the owner and the originаl contractor. Liens to that extent may be filed by the original contractor and his employes; but for the creation and attaching of such liens, performance of the work is a condition precedent. If the contract is an entirety, no liens can be filed from time to time as the "work progresses, or for partial performance. (Cox v. W. P. R. R. Co.
In Renton v. Conley,
Therefore, if there is no existing lien on the original contrаct, none exists on the subsidiary contract. The liens to secure the latter are wholly dependent on that of the former. The contracts of material-men and workmen with the original contract- оr are made with reference to his contract with the owner, and in subordination to its terms. (Henly v. Wadsworth,
There is nothing in thе contract or the Mechanics’ Lien law which required the architect to give notice of his decision that the contractor was entitled to his certificates. Such a provision, if it existed in the law, might afford some protection to those who have to do with dishonest contractors. But in the absence of such a provision, the certificate of the architect must be considered conclusive of the rights of the parties under the contract, unless it can be shown that it was obtained by the owner, by collusion, or fraud, or mistake. But there is nothing in the record to show that she acted otherwise thаn bona fide in making her payments upon the certificates. There is no evidence whatever tending to show collusion or fraud between her and the architect or the contractor.
As, therefore, the owner had strictly complied with her contract, and there was nothing due upon it from her to the contractor for the work which had been performed by him when he abandoned it, his employes have no liеns under the law which can attach to the buildings after they were completed by other contractors, unless the buildings were completed by the creditors of McMeekan in performance of McMeekan’s contract, or by the owner for their benefit. It is not claimed that the creditors of the original contractor completed the buildings; but the Court below finds: “ That after the absconding of said McMeekan, and before the completion of the buildings mentioned herein, one Richard McCann, by the consent of the parties to these actions, was substituted for said McMeekan as the contraсtor of the defendant Greene, upon the same terms and conditions as in the contract with defendant McMeekan, and that thereupon said McCann fully completed said buildings in accordancе with the contract with defendant McMeekan as aforesaid ; and that upon the completion of said building, McCann
We cannot find in the record any evidence to sustain this finding. There is nothing, indeed, tending to show that the owner knew of or consented to any arrangement whatever to complete the buildings for the benefit of the absconding contractor or his creditors; and there could not be a substituted performance without her knowledge and consent. (Civil Code, § 1532.) Upon that subject the testimony of the witnesses is all оne way. McCann, the last contractor says: “ I refused to contract with the McMeekan creditors to complete the buildings.” Townsend, the architect, says: “ Mrs. Greene had never given any orders to hаve the creditors go on and finish the house. * * * She had nothing to do with it at all.” Mrs. Greene, the owner of the buildings, says: “I never agreed at any time with any of the creditors of McMeekan to let them go on and cоmplete the buildings, according to contract; nor did I ever authorize any one to make such a contract or arrangement on my behalf. * * * I made the contract with the McCanns for the completion of the buildings. I made that contract with the Mc-Canns of my own motion, without any connection with any of the creditors of McMeekan, and not as part of any arrangement with any of them. It was not part of any arrangement with any of the creditors of McMeekan.” Hawkins, the agent of Mrs. Greene, says: “ The completion of these buildings was not made by any agreement or under any arrangement with McMeekan.”
These are the only witnesses upon the subject, and their evidence conclusively shows that the buildings were completed by Mrs. Greene upon her own responsibility, and without any privity or concurrenсe on the part of the McMeekan creditors. That being the case, the plaintiffs in these actions, who were creditors of the absconding contractor, have no liens which can be enforced against her.
Judgment and order denying a new trial reversed, and cause remanded.
McKinstry, P. J., and Ross, J.. concurred,