132 P. 772 | Cal. Ct. App. | 1913
The case represents the consolidation of several actions for the foreclosure of mechanics' liens. The first count of the complaint may be taken as an example of the various grounds of action exhibited therein.
It is alleged that defendants, George H. Freiermuth, Louisa A. Otto, and Elizabeth M. Spaulding were the owners of the property, describing it; that defendant Philip Overman was the lessee of said owners and was in the actual possession of the premises; that, on or about the seventeenth day of August, 1906, the plaintiffs entered into a contract with Overman whereby they agreed "to furnish all the lumber necessary for the remodeling, altering, repairing and reconstruction of the building situated upon the front and rear of" said premises; that said lumber was so furnished by plaintiffs and was used "in the raising, altering and remodeling of said building"; that the value thereof, according to the agreed rate, was the *631 sum of $1,714.44, of which only $1,150.00 has been paid; that the work was completed on or about May 15, 1907; that the owners, on the said seventeenth day of August, 1906, had knowledge of the furnishing of said material and of the construction of said work but did not within three days thereafter or at any time give notice that they "would not be responsible for the same or the materials furnished as aforesaid, by posting a notice in writing to that effect in some conspicuous place upon said real property, or upon the building or improvement situate thereon; and no such notice was ever posted on said land, or the buildings, structures or improvements thereon, at any time, after the said 17th day of August, 1906, as required by section 1192 of the Code of Civil Procedure"; that said plaintiffs duly filed and recorded their claim of lien on the seventh day of August, 1907.
Demurrers were interposed but overruled by the court and, after a trial had upon the issues joined, judgment was rendered for the defendant owners for their costs against the plaintiffs and a personal judgment against defendant Overman for the amount of the various claims, and the appeal is by plaintiffs from the judgment in favor of the owners of the premises and from an order denying their motion for a new trial.
It is conceded by appellants that the evidence was sufficient to sustain the following finding of the court: "The said buildings and structures and the construction, alteration, additions to and repair thereof were completed on the 1st day of March, 1907."
Among the provisions of section 1187 of the Code of Civil Procedure is this: "that in any event all claims of lien must be filed within ninety days after the completion of said building, improvement, or structure, or the alteration, addition to, or repair thereof." Notice of the liens herein involved was not filed within the said statutory time. The last date upon which they could be effectively filed was May 31, 1907, but, according to the record, the claims were filed, in 1907, as follows: Hickman Masterson, August 7; Decker Electrical Company, July 17; Cleveland Faucet Company, September 13; J. Anderson, August 7; N.C. Anderson, July 19; Theo. Schieve, July 17; The William Little Estate Company, October 18. *632
It seems clear, therefore — and no contention is made to the contrary by appellants — that all of said liens were filed too late by a period varying from a month and a half to four and a half months. (Kerckhoff etc. Mill Lumber Co. v. Olmstead,
It is therefore needless to consider the other contentions of respondents that the contents of the notice of lien, in each instance, were insufficient; that the contracts of Schieve and Little were void because, being for more than one thousand dollars each, they were not in writing and no plans or specifications were recorded; that they were violative of that provision of section 1184 of the Code of Civil Procedure which exacts "that at least twenty-five per cent of the whole contract price shall be made payable at least thirty-five days after the final completion of the contract," the Schieve contract providing for the payment of the whole price on completion of the work and the Little contract fixing no time for payment; that the claim of the Cleveland Faucet Company could not be maintained for the reason that saloon accessories not entering into the erection and construction of the building cannot be the subject of a lien; and the other position of respondents that a fatal variance appeared in several instances between the claim of lien and the contract as shown by the evidence at the trial.
The only remaining question is whether the owners should have been held personally liable for what was disclosed to be due appellants.
There was no contract between the owners and those furnishing the materials used in the building. The contracts were all made with Overman, or some one representing him, and he was neither the real nor the ostensible agent of the owners of the premises. There is no showing and no contention that the owners authorized Overman to contract for them. The contracts, therefore, made between Overman and the various claimants could not be rightly considered as the basis for a claim against the owners.
In the case of Peterson v. Freiermuth,
But here the case is even stronger for respondents as the lease introduced in evidence contained a covenant that the owners "shall not be required or called upon to make any alterations, improvements or repairs whatsoever upon the said demised premises, or any part thereof," and it was also provided that the alterations and improvements should be made by the lessees.
However, plaintiffs stand upon the proposition that the owners were personally liable by virtue of their knowledge of the improvements and their failure to post the notice contemplated by said section 1192 of the Code of Civil Procedure.
It was held, though, in the Peterson case, upon the authority of various decisions therein cited, that "the effect of the failure of the owners of the building improved to post the notice provided for in section 1192 of the Code of Civil Procedure is merely to charge them with a valid lien upon the premises, in favor of the contractor, or any other valid claimant of a lien, and not to charge them with any personal liability. When there is no valid lien in existence, and there is no privity of contract between the owners and the lessee, the failure to post the notice is without effect."
In this case, however, we are not required to go to that extent for the reason that the evidence was abundant in support of the finding that within three days after the defendants, George H. Freiermuth, Louisa A. Otto, and Elizabeth M. Spaulding, obtained knowledge of the construction, alteration and repair of the said buildings and structures, they posted notices as required by said section 1192 of the Code of Civil Procedure. *634
Strangely enough, the sufficiency of the evidence to uphold this finding is questioned by appellants. Two witnesses testified positively that they posted the notices conspicuously in three different places on the premises and they produced a carbon copy of the notice, which appears in the transcript and to the form or sufficiency of which no valid objection can be made. We must accept the finding as establishing the fact that the proper notice was given.
We have, then, simply this case: The owner of premises leases them under an agreement with the lessee that the latter shall pay for any alterations or improvements made in the building, and, after taking possession of the property, the lessee enters into a contract with a materialman to furnish materials to be used in said building by way of improvement and for which the lessee agrees to pay a certain price; there is no agreement or understanding whatever, between the owner and the materialman, and the owner, within three days after obtaining knowledge of the said improvement, gives notice that he will not be responsible for the same, by posting a notice in writing to the effect, in a conspicuous place upon the building to which the improvement is added.
We are not familiar with any principle of law or rule of statute that, under these circumstances, would impose upon the owner a personal liability for said improvement.
It may be well to notice briefly the citations of appellants to the point that such liability does exist.
Section 1197 of the Code of Civil Procedure that "Nothing contained in this chapter shall be construed to impair or affect the right of any person to whom any debt may be due for work done or materials furnished, to maintain a personal action to recover such debt against the person liable therefor," simply means that the right to a lien as provided in said chapter is not the exclusive remedy but, in addition, the person furnishing the work or materials may recover the amount due from the one who promised to pay it, or, as stated inCentral L. M. Co. v. Center,
The point decided in Germania B. L. Association v. Wagner,
In Bates v. Santa Barbara Co.,
In Robinson v. San Gabriel V. L. W. Co.,
Central L. M. Co. v. Center,
Coss v. MacDonough,
The same question was presented and similarly decided inMcClain v. Hutton,
In Becker v. Superior Court,
The claim of estoppel is equally without support. It has probably been sufficiently answered by the foregoing. The mere knowledge on the part of the owners that the work was in progress could not effectuate an estoppel. They had a right to assume that the laborers and materialmen were relying upon the promise of the lessee for compensation and did not expect to be paid by the owners with whom they had no contractual relation. It is not a case where labor or material was furnished upon the faith of the owner's promise, express or implied, to answer for the debt. Indeed, as already seen, we must regard it as a fact that the owners gave notice that they would not be responsible, thus destroying the foundation for any possible claim of estoppel. *637
We can see no reason for interfering with the action of the lower court, and the judgment and order are therefore affirmed.
Chipman, P. J., and Hart, J., concurred.