Newell v. Brill

83 P. 76 | Cal. Ct. App. | 1905

The plaintiff had judgment herein foreclosing a mechanic's lien, and the defendant appeals from the same and from an order denying him a new trial.

1. The contract of plaintiff's assignors, Newell Bros., provided that the firm would do the gas-fitting and the plumbing in the building for $614. The complaint alleges that the Newell Bros. "agreed to do all of the work and furnish all materials necessary to complete the plumbing work in said building, according to the plans agreed upon between said parties," for an agreed price of $614. The claim of lien recited that the work and materials necessary to do the plumbing work were to be done and furnished, "according to the plans and specifications agreed upon between said claimants and said William Brill," for $614. It is claimed that there was a material variance between the agreement above quoted on the one hand, and the claim of lien and the complaint on the other. We do not think this claim should be upheld. The mechanic's lien law is remedial, and should be liberally construed, with a "view to effect its objects and to promote justice." (Code Civ. Proc., sec. 4.) It may be true that the business of a gas-fitter is something separate and distinct from that of a plumber, and yet it must be admitted that there is a close kinship between the two occupations, so close, in fact, that in reading the complaint, and also the claim of lien, and noting that they both fix the price of the work and materials used in the plumbing at exactly the same figure that both the plumbing and the gas-fitting were to be done for under the terms of the contract, and that one firm was doing the whole of this work, it would be difficult to think otherwise than that the word "plumbing," as used in the lien and complaint, was intended to embrace all the work and materials mentioned in the contract. We do not think any person was, or could be, misled by the omission of the word "gas-fitting," and therefore are of opinion that this did not constitute a fatal variance, but that there was a substantial compliance with that part of section 1187 of the Code of Civil Procedure, which requires in the claim of lien "a statement of the terms, time given and conditions of his contract."

2. Nor is there any material variance between the allegations of the complaint and lien, on the one hand, and the contract, on the other, in respect to the extra work and materials to be furnished. At the trial the complaint was amended by striking out the reference to "other materials." This was done, apparently, for the reason that there was no evidence of any "extra materials" having been furnished. As nothing was allowed in this connection on account of extra materials, and as the variance complained of related only to those extra materials, we can see no force in appellant's complaint in this regard.

3. The objection that the $21.84 item might have been furnished by some one other than Newell Bros. to some one other than Brill, so far as the allegations of the claim of lien show, is without merit. The allegations of the complaint, as well as the evidence and findings, are to the effect that this extra work was done on the building at the request of Brill by the Newell Bros., and that Brill agreed to pay for the same. Reading the whole claim of lien together, it is apparent from it, also, that this extra work was done for Brill by plaintiff's assignors, and that is all that is necessary. The case in this respect is unlike the case of Madera Flume Co. v.Kendall, 120 Cal. 182, 65 Am. St. Rep. 177, [52 P. 304]. In that case the claim entirely failed to state the name of the person from whom the materials were furnished, and it was held that section 1187 of the Code of Civil Procedure, requiring such statement, was not complied with; but here the claim reads as follows: "That thereafter, . . . and during the progress of said work under said contracts, the said William Brill ordered certain extra work, and agreed to pay therefor the reasonable value of the materials furnished and labor performed; that the reasonable value of said labor and materials so done and furnished was and is the sum of $21.84." It is reasonably plain that the above expression "so done and furnished" means done and furnished in accordance with the order and agreement of William Brill previously referred to, and from this the "name of the party" for and to whom it was furnished appears.

4. The attempted denial, in the answer, of the assignment to and ownership of the claim in plaintiff is pregnant with an admission of those facts, and it was unnecessary, therefore, to introduce any evidence on the subject of the assignment.

5. It is claimed that there is an uncertainty of description in the complaint as to the property sought to be charged with the lien, and that the property convenient for the use and occupation of the house is not designated. The house is certainly described, and the case should not be reversed because it does not appear how much land is necessary for its occupation. (Sidlinger v. Kerkow, 82 Cal. 45, [22 P. 932].) The decree directs the sale only of the building and the land on which it is situated. (Sachse v. Auburn, 95 Cal. 651, [30 P. 800].) Besides, the claim of lien contains an accurate description of the lot, "together with the building thereon," upon which the lien is claimed, and a reference to this may be had to obviate uncertainty in other directions. It is alleged in the complaint that the claim of lien contains a description of the property sufficient for identification, and this allegation is borne out by an inspection of the claim referred to. The complaint was therefore sufficient in the matter of description.

Some other objections are urged, but after examination, we consider them of not sufficient importance to warrant a discussion.

The judgment and order appealed from are affirmed.

Smith, J., and Allen, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on November 23, 1905, and a petition to have the cause heard in the supreme court after judgment in the district court of appeal was denied by the supreme court on December 22, 1905.