Action to foreclose a mechanic’s lien.
Judgment went for plaintiff, from which the defendant Orange Blossom Mining and Milling Company appeals upon the judgment-roll alone. It appears from the complaint that at the times in question the Orange Blossom Mining and Milling Company owned tеn contiguous mining claims consolidated and operated as one mine, known as the Orange Blossom Mine, and also owned a millsite located at Bagdad Station, nine miles distant from said mine. That defendant entered into a contract with the Tracy Engineering Company whereby the latter, for the gross sum of money therein specified, agreed to erect and construct a power plant upon said millsite, and erect and construct upon the mining *289 claim known and designated as the Orange Blossom claim a stamp-mill and install certain mining machinery, appurtenances and fixtures, together with a transmission line extending from the power plant at Bagdad Station to the power-house and improvements to be constructed upon the Orange Blossom Mining Claim, and to furnish the materials and labor necessary in the construction and completion of said work. That said Tracy Engineering Company emрloyed plaintiff to act as foreman of the construction work so undertaken and agreed to be performed by it, under the terms of which employment plaintiff was to render services as foreman and superintendent in the construction of said work and improvements, and in consideration for such services the Tracy Engineering Company promised and agreed to pay plaintiff therefor the sum of $200 per month while so employed, togethеr with his traveling expenses from the city of New York to Bagdad, California, and return therefrom to New York upon the completion of the plant. That plaintiff entered upon said work, and between the twenty-fourth day of March, 1908, and the twenty-fourth day of November, 1908, performed the work and labor of superintending the erection, construction and installation of said improvements so agreed to be constructed and installed by the Tracy Engineering Comрany, and in the capacity of such foreman and superintendent performed eight months’ labor thereon, which said work and labor actually entered into the construction of said improvements- so made upon said millsite and mining properties, and that the reasonable value of the labor and services so done and performed was the amount so agreed upon, to wit, $200 per month and his traveling expenses to and from New York City, amоunting to the sum of $226.08, and making a total of $1,826.08 due to him for such work and labor so performed, upon which there was paid the sum of $201.81 and no more; that said work and improvements were fully completed and possession thereof delivered to the defendant, Orange Blossom Mining and Milling Company, on November 22, 1908; followed by sufficient allegations of the filing of a duly verified claim of lien in form and containing a statement of the matters and things required by statute.
1. Appellant assigns as error the fact that the court made no findings, and it insists that they were not waived. We
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cannot presume that mere absence of findings constitutes error. Every intendment goes to support the judgment, and, since findings of fact mаy be waived (Code Civ. Proc., sec. 634), then, in the absence of some affirmative showing to the contrary, by bill of exceptions or in other appropriate manner, the presumption arises that they were waived.
(Mulcahy
v.
Glazier,
2. It is next contended that plaintiff could have no right to a lien for his traveling expenses to and from New York, and that including the amount of such expenses in his. claim of lien rendered the same void. Therefore, it is contended the complaint was obnoxious to the general demurrer interposed by defendant and rendered the judgment against law. As to this point, it is sufficient to say that the demurrer was overruled by consent; hence, if the judgment was erroneous by reason of being against law, defendant, having consented thereto, cannot be heard now to complain upon such ground
(Erlanger
v.
Southern Pac. R. R. Co.,
3. Section 389, Code of Civil Procedure, provides that, “when a complete determination of the controversy cannot be had without the presence of other parties, the court must then order them to be brought in, and to that end may order amended and supplemental pleadings, or a cross-complaint to be filed, and summons thereon to be issued and served.” It is claimed that at the time of the trial defendant had been adjudicatеd a bankrupt. Appellant insists that before proceeding with the trial it was the duty of the court, as provided in said section 389, to make an order bringing in the trustee in bankruptcy as a party defendant. There is no pleading and nothing of record showing that defendant had been adjudicated a bankrupt, or that a trustee in bankruptcy had been appointed. .Conceding, as claimed by appellant, that such fact appears from the minute entry mаde by the clerk, a copy of which is printed in the transcript, nevertheless, as heretofore stated, this minute entry is no part of the judgment-roll and cannot be considered upon this appeal for any purpose. Assuming as true, however, the alleged fact that defendant had been adjudicated a bankrupt subsequent to the filing of its answer, we are unable to perceive why the presence of the trustee was necessary to a complete determination of the controversy, since the action was merely to foreclose an existing lien held by plaintiff, there being no demand for a personal judgment.
4. Another alleged error assigned is the fact that the court decreed a foreclosure of the lien upon two separate and distinct pieces of property—the Orange Blossom Mine and the millsite. This contention is based upon section 1188, Code of Civil Procedure, which provided that, “In every case, in which one claim is filed against two or more buildings, mining claims, or other improvements owned by the same person, the person filing such claim must at the same time designate
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the amount due to him on each of such buildings, mining claims, or other improvements; otherwise the lien of such claim is postponed to other liens. The lien of such claimant does not extend beyond the amount designated, as against other creditors having liens . . . upon the land upon which the same are situated.” As appears here, the improvements made by the Tracy Engineering Company upon both the mine and millsite constituted one plant, and for which the defendant agreed to pay the gross sum specified in the contract for the construction of the same as a whole. The work done and performed by plaintiff was under and by virtue of one contract for the performance of labor upon the entire work, and therefore it was impossible to designate the amount due to plaintiff for work and labor performed upon each of such properties; and, hence, nothing cоuld be due him upon each thereof. His claim was upon the entire plant covering all the improvements.
(Southern Cal. Lumber Co.
v.
Peters,
5. It is finally contended that plaintiff could have no lien upon the property for work and labor performed in the construction of the plant so contracted to be erected upon the property by the Tracy Engineering Company, for the reason that said work and labor was done and performed as foreman. The complaint states a cause of аction, and, among other things, alleges that plaintiff in the capacity of foreman performed eight months’ labor in the construction and installation of the power and milling plants, and that said work and labor was actually рerformed upon and entered into the construction of the same. Since the evidence is not before us, we must presume that it fully established the facts alleged in the complaint. This question was before the supreme сourt of Nevada
(Capron
v.
Strout, 11
Nev. 310), and the court there said, Beatty, Judge, writing the opinion: ‘‘It is
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argued that the intention of the law was to secure those only who perform labor upon the mine with their hands; that to give it a wider construction, one that will make it include the wages of a foreman like Stuart, will make it cover the case of a general superintendent and other officers of a corporation, and thereby impair the remedy of those who are the special objects of the legislative care. . . . According to the findings, he certainly did work in the mine, though not with his hands, and it is clear that the direct tendency of his work was to develop the property. We think the foreman of work in the mine is as fully secured by the law as the miners who work under his direction.” To the same effect is
Cullins
v.
Mining Co.,
Appellant directs our attention to no ground justifying a reversal of the judgment. It is therefore affirmed.
Allen, P. J., and James, J., concurred.