14 P.2d 338 | Cal. Ct. App. | 1932
At the request of defendant Hesse, as contractor, the plaintiff furnished certain building materials for use upon and actually used in the construction of a building upon a lot of land owned by the defendant Mitchel. Defendant Mitchel had no contractual relation with plaintiff. Said materials so furnished by plaintiff not being paid for, the plaintiff, under date of February 21, 1929, which was within ninety days after actual completion of the building, filed a notice of mechanic's lien against defendant Mitchel's property for the sum of $429.75. Within ninety days thereafter, to wit, on the twenty-first day of May, 1929, said plaintiff and defendant Mitchel entered into a written agreement whereby it was provided that defendant Mitchel granted to plaintiff "ninety days' extension of time within which to foreclose his said lien". On August 19, 1929, plaintiff filed his complaint for foreclosure of his said lien, and upon trial it was decreed that plaintiff was entitled to a lien for the sum of $411.65 against the premises of defendant Mitchel, and a personal judgment for the sum of $429.75 was entered against defendant Hesse.
In support of her appeal, defendant Mitchel contends that the execution of the purported agreement does not constitute an extension of credit within the meaning of section
Section 1190 of the Code of Civil Procedure reads as follows: "No lien provided for in this chapter binds any property for a longer period than ninety days after the same has been filed, unless proceedings be commenced in a proper court within that time to enforce the same; or, if a credit be given and notice of the fact and terms of such credit be filed in the office of the County Recorder subsequent to the filing of such lien and prior to the expiration of said ninety *173 days period, then ninety days after the expiration of such credit; . . ."
[1] The agreement entered into between the parties provided as follows: "Now therefore, it is hereby understood and agreed that the said Bertha K. Mitchel hereby grants to Ed. J. Hill Ninety (90) days extension of time within which to foreclose his said lien. It being understood, however, that this extension of time does not admit the validity of the said claim of lien by the said Ed. J. Hill, but is simply to grant him the privilege of foreclosing his said lien if in fact it be subsequently proven that he has such." There is no evidence of any "extension of credit" by the creditor to the debtor, nor even to appellant. Notwithstanding the terms of this agreement, plaintiff retained the right immediately to commence his action. But he did not forthwith commence the action. He relied upon appellant's agreement as a waiver of the statute of limitations. He was justified in so doing. This appears from the recital in the agreement, that appellant had no knowledge concerning the merits of the claim, but did desire to pay all just claims against the property; that the time for foreclosure was about to expire, and the claimant had applied for an extension therefor, which appellant was willing to grant without admitting liability for said claim; "now therefore", appellant granted to the claimant ninety days' extension of time within which to foreclose his said lien.
This was a valid waiver. Section 1190 of the Code of Civil Procedure is merely a statute of limitations. (Mox, Inc., v.Leventhal,
The judgment is affirmed.
Conrey, P.J., and Houser, J., concurred. *174
A petition for a rehearing of this cause was denied by the District Court of Appeal on October 21, 1932, and the following opinion then rendered thereon:
THE COURT.
The petition is denied. In making this order we hereby add to the opinion a citation of Hughes Brothers v. Hoover,