123 Cal. 532 | Cal. | 1899
This action was brought by the assignee of Belyea and Bogers for services performed and materials furnished by plaintiff’s assignors for defendant under a building contract, which was void for failure to comply with the requirements of section 1183 of the Code of Civil Procedure as to recording before work commenced, et cetera. The defendant answered, the case was tried before the court without a jury, and the plaintiff had judgment for the reasonable value of the services performed and the materials furnished, together with interest thereon from the date that the same were so performed and furnished. The defendant moved for a new trial on the grounds, among others, that the court erred in not continuing, staying, and abating this action and the trial thereof until certain other actions, which had been begun against defendant by subcontractors to enforce their liens against the property which was the subject of the void contract, could be tried and determined. Another ground of the motion for a new trial was that the claim sued upon, being an unliquidated demand, no interest could be recovered with it. I think the new trial was properly granted on these grounds.
There was no privity of contract between these subcontractors and the defendant herein, they having furnished the materials and performed the labor on the building under a contract with plaintiff’s assignors only.' The defendant, therefore, was not personally liable to them, but they were entitled merely to enforce their liens against his property. It became necessary, as a measure to his own self-protection, to defend these foreclosure suits of the subcontractors, that the sums due under them might be ascertained and fixed by the judgment of the court. This was the best way he had of ascertaining whether the claims of the lienholders were valid or not. And it was also the duty of the contractor, under section 1193 of the Code of Civil Procedure, to bear the burden and expense of defending these actions of foreclosure. Appellant says that this section 1193 and the requirement thereof that the contractor defend at his own expense any action brought against the property which is the subject of the contract for work done or mate
The appellant himself does not contend that the court could properly allow interest to he recovered in the case, and the suit being on a quantum meruit “for the reasonable value of services and materials, the amount, character and value of which could only be established by evidence in court or by an accord between the parties, and which are not susceptible of ascertainment either by computation or by reference to market rates,” it would seem that the court erred in holding that interest might be recovered prior to the decision of the case. (Cox v. McLaughlin, 76 Cal. 60; 9 Am. St. Rep. 164; Swinnerton v. Argonaut etc. Co., 112 Cal. 375); and for this reason also the court properly granted a new trial.
The order granting a new trial should be affirmed.
Britt, C., and Pringle, C., concurred.
For the reasons given in the foregoing opinion the order granting a new trial is affirmed.
Temple, J., McFarland, J., Henshaw, J.,