276 P. 146 | Cal. Ct. App. | 1929
This is an appeal by the defendants from a judgment rendered against them in an action to foreclose a mechanic's lien.
Appellants urge that the claim of lien was invalid because it failed to comply with the requirement of the statute that (among other things) it contain "a general statement of the kind of work done or materials furnished." (Sec. 1187, Code Civ. Proc.) An examination of the claim of lien upon which the action depended discloses the fact that it was for "materials furnished." By section
[1] If it be conceded that the claim of lien for "materials furnished" was defective in that it contained no *754
specification of the "kind" of materials, since by the findings of the trial court it does not appear that the error was made with "intent to defraud," or that an innocent third party suffered by reason of such error, it is clear that the defect is not of vital importance. Furthermore, notwithstanding the effect of some of the authorities to which appellants direct attention, it appears that even before the enactment of section
"None of these objections are well taken. The particular character of the materials need not be stated in the notice. The statute does not expressly require it, and the `nature and extent of the claim' may be as well understood without the aid of such detail as with it." (Citing cases.)
It follows that the error of which appellants complain cannot be sustained.
Appellants specify further error in effect that the findings of fact, which were all contrary to the position assumed by appellants at the trial in the lower court, were not supported by the evidence. It would serve no useful purpose to set forth the evidence upon which the findings to which objection is here made are predicated. Suffice it to say that, on consideration of such findings with relation to the evidence adduced at the trial, it satisfactorily appears that the findings are not properly subject to said criticism.
[2] The "materials furnished" by plaintiff consisted of hardwood flooring intended for a residence which was being constructed by a contractor for the defendants. The contract for furnishing such flooring and laying it in the building was sublet to a third person who purchased the flooring from plaintiff. On account of the defective manner in which *755
the flooring was laid, by order of the architect employed by the defendants, nearly all of it was torn out and other flooring laid in its place. Appellants contend that because the "materials" furnished by plaintiff were not finally used by the defendants in the construction of the building for which such materials were originally purchased, plaintiff was not entitled to maintain a lien on the premises. By some of the authorities cited by the appellants the rule is announced that where a building under construction is completely destroyed by fire the right of lien does not attach to the premises. (Humboldt L.M. Co. v. Crisp,
In the case of Pacific Sash Door Co. v. Bumiller,
In the case of California Portland Cement Co. v. WentworthHotel Co.,
In the case of Hammond L. Co. v. Gordon,
[3] Authorities are not lacking to the effect that in order to become entitled to a lien, a materialman who furnishes material to a contractor to be used in the construction of a building is under no obligation to the owner of the premises to see that the contractor complies with the terms of his contract with the owner. (17 Cal. Jur. 20.) The syllabus in the case ofHowe v. Schmidt,
The authorities cited by appellants are distinguishable from those cited by respondent in that where a building under *757 construction is destroyed by fire, so far as the owner of the premises is concerned, the act by which the materials furnished by the lien claimant are destroyed is involuntary; whereas, where the owner either personally or through his agent directs the removal from the building of attached materials or fixtures furnished by a lien claimant the act is plainly voluntary. In the instant case apparently the fault of the flooring lay entirely with the manner in which it was laid — not with the boards or material of which it was constructed. That part of the work was done, not by plaintiff or by his employees, but was done by the defendants or their agents or employees. The fact that by the act of the owner of the building the "materials furnished" may have been rendered useless should not defeat the rights of an innocent materialman, who had no knowledge or notice of defective or poor workmanship in the installation of the materials.
The judgment is affirmed.
York, J., and Crail, J., pro tem., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on April 23, 1929, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on May 23, 1929.
All the Justices present concurred.