17 P.2d 703 | Cal. | 1932
Plaintiffs appeal from an adverse judgment in an action brought to foreclose a mechanic's lien.
The defendant Clotilde Castruccio, owner of the property upon which it is sought to impose the lien, was the only defendant to appear and answer the complaint. It appears that on March 2, 1926, the defendant Castruccio agreed to sell a large parcel of land to three named individuals, a small down payment being made by the purchasers. Thereafter the defendant El Sereno Country Club, deriving whatever interest it had in the property from the purchasers thereof, undertook to construct a clubhouse and golf course on the property. To accomplish this objective the club entered into a contract with the plaintiffs, doing business as copartners, whereby the latter, for a fixed fee, were to furnish engineering service and superintend the construction work. The lien here sought to be imposed is an outgrowth of said contract. At the close of the trial the court below entered judgment for the plaintiffs and against the El Sereno Country Club in the sum of $8,729.66, but decreed that plaintiffs were not entitled to a lien on the property of the defendant Castruccio. Plaintiffs were also denied any relief against the defendant Castruccio personally. Plaintiffs appealed.
[1] Preliminarily, it might be said that that portion of the judgment denying the appellants a lien, and which is attacked by the plaintiffs in their brief herein, is not properly a subject of review upon this appeal because of the insufficiency of the notice of appeal. The notice states that the appeal is "from so much of the judgment herein as denies relief to the plaintiffs against the said defendant, *92
Clotilde G. Castruccio . . ." The notice of appeal makes no mention of that separate and distinct portion of the judgment denying plaintiffs a lien. [2] It is elementary that an appeal from a portion of a judgment brings up for review only that portion designated in the notice of appeal. (2 Cal. Jur. 155, sec. 25.) While it is true that notices of appeal are to be liberally construed with a view to hearing causes on their merits (Harrelson v. Miller Lux,
[3] Though we are satisfied for the foregoing reason that the judgment might well be affirmed, we have examined the record and have concluded that on its merits the judgment of the court below is eminently proper. Under the terms of their contract with the El Sereno Country Club the appellants were to receive a fee of $8,000 for acting as the "construction, purchasing and engineering department" in the carrying out of the proposed development, this fee to be increased or diminished, not to exceed fifty per cent, depending on whether the actual cost of construction was less or greater than the estimated cost. The trial court found on competent evidence that the full amount of such fee had been paid to the appellants. No lien is therefore available to the appellants in connection with this sum.
[4] The contract further provides, in substance, that the appellants in the course of the construction work were to contract for all materials and labor essential thereto. Having expended various sums of money for labor the appellants now seek to impose a lien therefor. Clause "V" of the contract is fatal to the appellants' claim of lien. It reads in part: "All contracts and orders placed by us [appellants], pay rolls and other obligations, shall be in your name by Stiles Construction Co.,Agents, and it is understood that we assume no liability under orby reason of such obligations." The trial court found, in effect, that the *93
appellants had expended $8,729.66 for materials or labor, for which amount they were entitled to judgment against the defendant El Sereno Country Club, but that said sum represented "money voluntarily paid as an advance and a loan by the [appellants] for said El Sereno Country Club", and as to which sum they were not entitled to a lien against the respondent's property. That such money was voluntarily advanced by the appellants on behalf of the El Sereno Country Club is amply supported by the provision of the contract, above quoted, which provides that "all contracts and orders" placed by the appellants, "pay rolls and other obligations" were to be placed in the name of the club, by the appellants as "agents", it being understood that the appellants "assume no liability under or by reason of such obligations". It necessarily follows that all sums so expended by the appellants constitute but loans or advancements to the El Sereno Country Club. [5] It has long been the settled law of this state that "the mechanics' lien law provides exclusively for the security of materialmen and laborers; and one who advances money as a loan, although it is expressly for the payment of materials and labor devoted to the erection of a building, can have no claim to the benefits of the law." (Godeffroy v. Caldwell,
The case of Burr v. Peppers Cotton Lumber Co.,
The decision quoted from contains a lengthy and instructive discussion of the problem here presented. The principles therein announced are recognized in Sweet v. Fresno Hotel Co.,
What has been said sufficiently disposes of this case. We deem it unnecessary to prolong this opinion by considering and discussing other contentions urged by the parties.
The judgment appealed from is affirmed. The order denying a new trial is nonappealable (sec. 963, Code Civ. Proc.) and the purported appeal therefrom is therefore dismissed.
Curtis, J., Langdon, J., Preston, J., Tyler, J., pro tem., Seawell, J., and Shenk, J., concurred. *95