86 Cal. 620 | Cal. | 1890
Upon further consideration of this case, we are satisfied that the conclusion we reached on the former hearing—viz., that the claim of lien was not filed within thirty days after the completion of the work— was based upon a misapprehension as to the evidence. The claim was filed June 18, 1884. While it is true the work done after May 17th was work not contemplated by the contract, it nevertheless appears that it was done under the direction of the chief engineer, and that the obligations of the contractor to the company were not
We have carefully examined the record in the case of Mahone v. Big Flat Mining Co., 76 Cal. 578, and think it sustains appellant’s contention, that, although the claim of lien was in part for articles (picks and shovels) not the subject of lien, the court should permit the plaintiff, by proof, to make the necessary segregation, throw out the value of such articles, and declare a lien for the balance. In the case referred to, the claim of lien included an item of deer and bear meat, but the lien was held to be good to the amount of the lienable articles; and the rule seems to be, that unless there is something to show a willful attempt to claim a lien for the non-lien able articles, the lien is not lost. (Whitford v. Newell, 2 Allen, 427; Phillips on Mechanics’ Liens, sec. 355.) Upon the same principle, it was held, in Barber v. Reynolds, 44 Cal. 533, that notwithstanding the fact that the claim filed was for too much, it would still be valid, unless it should appear it was a willfully false claim, within the meaning and intent of the statute.
It was not necessary for the plaintiff to designate what
Judgment and order reversed, and cause remanded for a new trial.