209 P. 551 | Cal. | 1922
Plaintiff appeals from a judgment for defendant in an action to foreclose a mechanic's lien. There is no conflict as to the facts, and but a single question of law is presented. The respondent, the owner of certain real property in the City of Sacramento, leased the same to Nicoletti and Caietti for a term of years. Under the terms of the lease, which was in writing, the lessees were allowed to repair and remodel the premises at their own expense, except that the lessor agreed to pay two hundred dollars toward the plumbing repairs, to be paid by deductions from the monthly rental. The lease further provided that "the said lessor shall not be called upon to make any improvements or repairs whatsoever upon the said demised premises, *623 or any part thereof, but the said lessees agree to keep the same in good order and condition at their own expense." It further provided that the lessees should deposit three hundred dollars with the lessor, "as security for the prompt and full performance of the terms of this lease," which was done.
The plaintiff, who was a building contractor, acted as spokesman and interpreter for the lessees in the negotiations for the lease, and was consequently familiar with the terms and provisions thereof. Subsequent to the execution of the lease the lessees let a contract to plaintiff for the repair and remodeling of the premises and he entered upon its performance. When the work was nearly completed the lessees, having lost their license, abandoned the premises without paying plaintiff for his work and materials. He thereupon duly filed his notice of lien and commenced this action for the foreclosure thereof against the respondent as owner of the premises, under section 1192 of the Code of Civil Procedure. It is admitted that respondent at all times had knowledge of the doing of the work and that she did not post or verify or record any notice of nonliability, as provided in said section.
The judgment for this defendant was based solely upon the admitted fact that the plaintiff at the time he did the work had actual knowledge of the provision of the lease to the effect that the lessor should not be called upon to make any improvements or repairs. It was pointed out in Pacific Sash Door Co. v. Bumiller,
[1] But it is urged that the appellant, having performed the labor with full knowledge of the provision of the lease above quoted, must be deemed to have given credit solely to the lessees and to have waived his right of recourse against the property of the owner. Aside from the fact that to so hold would be to disregard the plain provisions of the statute, it cannot be said that the appellant elected to give credit only to the lessees. He must be deemed to have known of the provisions of the mechanic's lien statutes and the security thus afforded him. The provisions of the lease affected only the reciprocal rights and obligations of the parties thereto. The respondent gave no notice, either in writing or otherwise, that she intended to avail herself of the exemption offered by the code section. Indeed, we might conclude with greater reason that, for the sake of getting this work done, she was willing to waive the exemption of the statute and to rely for her own protection upon the financial responsibility of the lessees, and the security which she held.
What was said in Jurgenson v. Diller,
The case of Pasqualetti v. Hilson,
It must be held that mere knowledge on the part of the lien claimant that the owner intends or desires to avail himself of the exemption offered by the statute is not sufficient to debar him from the enforcement of his lien, at least in the absence of circumstances sufficient to create an estoppel against him, which do not here exist.
The judgment is reversed.
Wilbur, J., Lennon, J., Waste, J., Lawlor, J., and Richards, J., pro tem., concurred.
Rehearing denied.
All the Justices present concurred.
Richards, J., pro tem., was acting.