159 P. 178 | Cal. Ct. App. | 1916
Fourteen separate complaints were filed to enforce mechanics and materialmen's liens, and by order of the court were consolidated and tried in one action. The plaintiffs in eleven of these several complaints are respondents and the appeal is here under the above title. Judgment was entered in favor of plaintiffs and from this judgment defendants appeal.
Defendants Condon and McGlynn were the contractors for the work; certain named persons defendants were owners of the property on which the building in question was erected, and defendant Dunne Investment Company was the owner of a lease executed by said owners, and erected said building in compliance with the terms of said lease. The building is situated on the northwest corner of Stockton and Ellis Streets, San Francisco.
The complaints were filed in the latter part of the year 1909 and were brought to issue by answers in 1910 and, on January 4, 1912, came on for trial, and findings of fact and conclusions of law were made on June 27, 1912, and judgment was entered on that day. Notice of appeal was served and filed July 27, 1912. Transcript on appeal was filed in the supreme court May 15, 1914. Appellants' brief was filed September 15, 1914, and respondents' brief was filed May 11, 1915. The cause was transferred to this court and papers filed here December 17, 1915, and appellants' reply brief filed here January 18, 1916. It thus appears that more than two years expired after the actions were commenced before they were brought to trial. Nearly two years elapsed thereafter before transcript was filed in the supreme court. A year more passed before respondents' brief was filed, and appellants' reply brief was not filed until January 18, 1916, at which time the cause was submitted. We take the liberty of calling attention to the record as typical of many cases coming by transfer to this court as showing that the delay in reaching judgments on appeals in many cases is not, as is popularly believed, the fault of the appellate courts, but of the attorneys in the cases, brought about by stipulations which the courts feel bound to respect.
The attack is first made upon the finding upon which the judgment is based for the reason that it ignores the element of proportion to the whole contract price; that the evidence is insufficient "to sustain the finding even as to the amount *335 and that there is no finding of the ultimate facts, but finding No. 10 is only a conclusion of law." Appellants then assail the proceedings in each of the eleven cases on various grounds, some of which are common to all of them while other grounds are urged to particular cases.
The contract price for the building was $52,750, and the contract, with its plans and specifications, was duly recorded before the work was commenced. Work commenced under this contract October 26, 1908, and continued until July 15, 1909. The contractors being unable to complete the building, the Dunne Investment Company gave three days' notice, as provided in the contract, to furnish the necessary labor and materials to finish the building, which the contractors being unable to do, the Dunne Investment Company employed one Charles Wright to complete the job. The contractors had received, when they abandoned the work, $31,397.50. The liens filed amounted to about twelve thousand dollars.
The contract provided that payments for the work should be made on the first of the month "as the work progresses, in installments, based upon the monthly estimates of all work done and material furnished and paid for in the building, up to and including the last day of the preceding month, in sums equal to seventy-five per cent of the value of said work done and material furnished, to be estimated by the architect, provided that no more than seventy-five per cent of the whole contract price shall be paid up to the time of the completion." There was the usual provision deferring payment of twenty-five per cent. "The monthly estimates of the architect, however, subject to correction by him in any subsequent monthly or in his final estimates. Serving merely as a basis for payments on account they are presumed to be only approximate."
Finding 10 is as follows: "That the value of the work and materials already done and furnished by said Condon and McGlynn on July 15, 1909, under said contract, including materials then actually delivered or on the ground, estimated by the standard of the whole contract price, under said contract, was and is $41,863.33."
The court found that there was the sum of $10,465.83 subject to the various liens, being the difference between the amount of the work and materials done and furnished, namely, $41,863.33, and the amount paid to the contractors, *336
namely, $31,397.50. That is, the payment in excess of the certificates given by the architect of seventy-five per cent of the work as it progressed, as provided in the contract, was the sum of $10,465.83 and was subject to liens in accordance with the rule enforced in the case of Olson-Mahoney Lumber Co. v.Maxwell,
It is well settled that, prior to the revisory statute of 1911 (Stats. 1911, p. 1313), under section 1200 of the Code of Civil Procedure, the actual value of the work and materials is not the test, but the value "estimated as near as may be by the standard of the whole contract price." (Hoffman-Marks Co. v.Spires,
Appellants contend that the value of the work and materials as found by the court represented the actual value and not the value estimated by the standard of the whole contract price, and that the court reached its estimate by a mathematical calculation, to wit, by dividing $31,397.50, the amount paid the contractors, by .75, thus giving exactly the sum found, namely, $41,863.33. "Other than this mathematical calculation," it is claimed, "there is not a word of evidence to sustain the finding."
Witness Applegarth was the architect of the building and made the estimates of the work as it progressed and issued certificates therefor. He testified "that $31,397.50 was three-fourths of the value, or possibly a little less than three-fourths of the value, of the portion of the work done by the Condon-McGlynn Company on the Dunne Building, estimated by the contract price for the whole. We were conservative always so as not to overstep the limit. So I am sure that it was not more than three-fourths of what they had done estimated by the price of the whole." Again, he testified: "These certificates were our estimates of the value of the work done in the period covered by the certificate estimated by the contract price." Again: "We issued our certificates on the basis of three-fourths of the value of the work done estimated by the whole contract price." He testified that he helped superintend the construction of the building, and was at that time more familiar with the cost of the work required to be done on the building than at the *337 time he was testifying (two years later). He testified: "In giving the certificates we investigated the cost of doing what had to be done there and it was fresh in my mind when I gave the certificates, and the certificates I made at the time were my estimates at that time of three-fourths of the value of what had been done there, measured by the contract price for the whole. The contract price was less than the reasonable value of the contract for the building in my judgment." He also testified: "Leaving out the contract price of the Dunne Building under the Condon McGlynn contract, the reasonable market value of what the Condon-McGlynn Company did before they ceased work there was about $47,000.00" Later in the course of the trial, the architect revised his estimate, reducing it from forty-seven thousand dollars to $35,736.50, whence by applying the rule in Hoffman-Marks Co. v. Spires, appellants derive $30,785 as the true value estimated on the basis of the contract price and, therefore, it is claimed there was nothing subject to the lien.
Witness Charles Wright, who took the contract to complete the building, testified that the actual value at abandonment was $32,850. The testimony of this witness on cross-examination showed that he underestimated the cost of different parts of the work very materially, and that his figures given for various items entering into the cost of completing the building were unreliable, and for reasons shown his estimate of such cost did not represent the reasonable cost of completing the building under the original contract. It was alleged by defendants, in their verified answer to each of the complaints, that they had paid to the contractors "a sum equal to 75% of the value of said work done and material furnished as estimated by the architect, and that the said sum was at no time more than 75% of the value of the work and materials already done and furnished, estimated by the standard of the whole contract price," and that the amount so paid was as already stated. Appellants say as to this averment in their answer that it "is not binding, in view of the fact that the evidence, as a whole, establishes that these payments were in reality 75% of the value of the amount actually in the building."
Section 1200 of the Code of Civil Procedure directs that the value of the labor and materials done and furnished at the time of abandonment shall "be estimated as near as may *338 be by the standard of the whole contract price." Any just method of arriving at this result may be adopted. There was evidence warranting the court in finding that the value of the labor done and materials furnished when abandonment occurred was greater than seventy-five per cent of the value as estimated by the court, so that appellants cannot complain that the amount was excessive. Just to what mental or mathematical process the court resorted it seems to us immaterial if the result was justified. It may be, and probably was the fact, that the court was satisfied with the architect's testimony that the certificates given by him could safely be assumed as a basis for its finding, especially as he had testified that the value of the labor and materials done and furnished was forty-seven thousand dollars, and in view also of the admissions of the answers as well as the architect's testimony, that this seventy-five per cent "was at no time more than 75% of the value of the work and materials already done and furnished, estimated by the standard of the whole contract price." The estimate made by the architect was not, as claimed by appellants, for actual value but, as was admitted in the answers, and as testified by the architect, was a value "estimated by the contract price." We must assume that the court considered all the evidence in the case and was, we think, justified therefrom in making the finding it did, although it happens to be and probably was based upon the architect's certificate. Finding 10, supra, is, we think, a finding of fact and not a conclusion of law, as claimed by appellants.
It is further claimed that the court failed "to find the value of the work left undone" which, it is insisted, was essential "in estimating the amount subject to liens in cases where the contractor has not finished his contract." We understand our supreme court to have held that a finding as to the cost of completing the building is not necessary. (Scheerer Co. v. Deming,
We come now to the attack made upon the several claims separately. *339
It was alleged in the complaint that, on July 20, 1909, the "said contract was abandoned before the completion thereof and there was on said date an entire cessation of labor upon said unfinished contract and upon said unfinished building or structure" and, on said date, the defendant Dunne Investment Company entered into the occupation of said building and ever since has been and now is in the use thereof; that said cessation from labor upon said contract and upon said unfinished building or structure and said use and occupation of said unfinished building by said owner, Dunne Investment Company, continued for a period of thirty days and at the time of said cessation from labor there was in the hands of defendant, Dunne Investment Company, after deducting the payments actually due and made under said contract for the value of the work and materials already furnished, estimated according to the whole contract price, sufficient to pay the claim and lien of the plaintiff herein." It is alleged that the notice of lien was duly verified and recorded December 14, 1909, and is made part of the complaint "and was filed within the time allowed by law." It is also alleged that no notice of the cessation of work on the building or of abandonment of work was ever filed in the office of the recorder.
The court found that there was an entire cessation of labor on the building on July 18, 1909, and that there never had been any notice of cessation of labor filed for record. *340
Several of the complaints alleged, and the court found, that within thirty days (in fact, within a few days) defendant "did enter upon said uncompleted building, exclude therefrom said Condon McGlynn and all subcontractors . . . and said defendant did proceed to procure other materials and labor . . . and did complete said building . . . on November 16, 1909, and there was at no time a cessation of labor for thirty days on said building between said October 21, 1908, and said November 16, 1909."
Appellants say: If the allegation is true that there was a cessation of labor for thirty days after July 20, 1909, as alleged, the time for filing liens would commence to run August 19th, and the right to file a lien would at most expire ninety days thereafter. Hence the complaint did not state a cause of action because, as therein stated, the lien was filed December 14th. Attention is also called to the allegation in the complaint that defendant entered into occupation and use of the building on July 20, 1909, which, it is claimed, brings the case directly within Robison v. Mitchel,
While the court found, as alleged in the complaint, that there was a cessation of labor on July 18, 1909, it found, as we have seen, that no notice thereof had been filed of record, and the court also found that there was no cessation of labor for thirty days on said building and the same was completed November 16, 1909. This plaintiff filed its lien on December 14, 1909, and was in time, if we may follow the findings of the court instead of the averments of the complaint. In considering this and other of the objections, it is to be noted that there was no demurrer to the complaint, no motion for nonsuit upon the close of plaintiff's testimony, and no motion made for a new trial. In defendants' answer it was alleged that the contractors abandoned the work on July 15, 1909, "whereupon the said defendant entered upon the said work, excluded the said Daniel E. Condon and Chas. J. McGlynn and their men and forthwith proceeded to procure other materials and labor and entered into another contract for said work, to wit: a certain contract with one Charles Wright," who agreed to complete the building according to the plans and specifications of the original contract. This contract was dated August 4, 1909, in which the contractor agreed "to enter upon the performance of the work on the 5th day of August, *341
1909, and to steadily proceed with and hasten the same to completion." The evidence showed that in fact there was no cessation of labor for a period of thirty days; that the contractor, Wright, carried out his contract, and in so doing must have been in possession of the building; and that defendant did not "enter into the occupation and use of the building" otherwise than to exclude the original contractors and to arrange for the completion of the building. No question was raised at the trial or objection to evidence as at variance with the pleadings. In this condition of the record we are fully warranted in disregarding the averment of the complaint that the cessation of labor continued for a period of more than thirty days and accepting the finding of the court. Appellant relies on Robison v. Mitchel,
The complaint alleged as follows: "At the time of said cessation from labor, there was in the hands of the defendant, Dunne Investment Company, after deducting the payments actually due and made under said contract for the value of the work and materials already done and furnished, estimated according to the whole contract price, sufficient money to pay the claim and lien of the plaintiff herein." It is now urged against the sufficiency of this averment that it does not allege that defendant had "any fund subject to liens." Defendant states in its brief "it may be that this plaintiff intended to allege that it had in its hands and subject to liens sufficient money to pay the claim, but the complaint does not say so." Had plaintiff's failure to express its intention been pointed out by special demurrer no doubt the additional allegation would have been made. The record shows, however, that the fact here omitted constituted one of the issues tried without objection, which we think cured the defect.
The objection that the complaint "fails to allege that the lien contained a statement of the terms, time given and conditions of the contract," as required by section 1187 of the Code of Civil Procedure, is, we think, satisfactorily met. In the first place, the lien was admitted in evidence without the objection now urged being made. The complaint alleged that the notice of lien was filed, giving the date, and that it "contained, among other things, a description of the property thereby sought to be charged, as hereinbefore set forth, a statement of the names of the owners or reputed owners of said land and building or structure, to wit: [giving the names] . . . and said notice also contained a correct statement of the demand of plaintiff for said materials furnished after deducting the just claims and offsets." It is then stated that the notice was duly recorded and reference is made to it and it is made part of the complaint. The lien contains a statement of the terms, time given and the conditions of the contract. The complaint and notice of lien must be read together as the latter is distinctly made part of the complaint. (Newell v. Brill,
It is objected that there is a variance between the complaint and the lien, the complaint and the evidence, and between the lien and the evidence. The lien states that the contractors "requested claimant to furnish lumber and mill work for said building and agreed to pay for the same upon its delivery; that claimant, at the special instance and request and in accordance with the agreement of said [contractors] furnished lumber and mill work for said building on the dates hereinafter mentioned to the amount and extent presented by the various sums set opposite the respective dates, viz.": (Then follow the items showing date, quantity of material and mill work and price.) "No time was given and there were no other terms or conditions of the said contract." It is then stated that claimant performed its agreement "and supplied said lumber and materials as specified herein and said materials are of the reasonable value of $2,902.99, and the same were actually used in, upon and about said building." The complaint alleged that, for said lumber and mill work, the contractors "agreed to pay the plaintiff the reasonable value thereof, in cash, and upon the delivery of said lumber and mill work; that no time was given and there were no other terms or conditions to said contract except such as the law implies; . . . that the reasonable value of said lumber and materials is set opposite the respective dates as follows": (Then follow the items as in the notice of lien.) The evidence showed that the lumber was sold at a fixed price agreed upon with the contractors. "That the lumber and mill work furnished by the Olson-Mahoney Lumber Company for the building in question were furnished at the reasonable market price prevailing at San Francisco at the time the lumber and mill work were furnished." The introduction of the lien was objected to "on the ground that there is a variance between the evidence and the lien." In the decision rendered by this court in Barrett-Hicks Co. v. Glas,
In the present case it seems to us that anyone reading the notice of lien would see that the agreement was that the materials were to be paid for, upon delivery, in accordance with the prices carried out against the various items, and that the materials were of the reasonable value as in the notice set forth, for it states that reasonable value was as the price shown. The complaint stated that the agreement was to "pay the plaintiff the reasonable value thereof, in cash, and upon the delivery of said lumber and mill work." The evidence was that the prices were both the market value and the reasonable value as well as that the agreement was to pay a price agreed upon. We do not think that the notice of lien was insufficient, nor do we think there was any variance as claimed by appellant such as would justify a reversal of the judgment. (SeeBlanck v. Commonwealth Am. Corp.,
It is next objected that the lumber furnished by plaintiff was used for concrete "forms" which did not enter into or become a part of the building and hence no lien attached. Appellant rests its point in its opening brief upon the case of *345 Stimson Mill Co. v. Los Angeles Traction Co.,
The evidence was that this building could not have been erected without the use of lumber made into forms into which the concrete was poured there to remain until thoroughly "set," that is, for a period requiring, as the evidence showed, from fifteen to twenty days. The lumber was then removed *346 and was of no value thereafter. The evidence was that some of it was given away; none was used for another job and the contractors advertised in the daily papers to get rid of it for firewood. The contract called for a reinforced concrete building to be erected by the use of wooden forms. The provision was: "Forms must be constructed so as to properly sustain the total weight of the concrete floors and beams during construction without deflection and shall be thoroughly braced and held in place to avoid any delay during construction to allow of the setting of the concrete." After making specific provision as to how the lumber was to be used and what kind was required, the contract provided: "Forms shall be so constructed that their inner surface shall conform strictly to the dimensions called for by the plans. . . . No form design shall be adopted or the lumber sizes collected (selected?) without the approval of the architect and the architect's approval does not relieve the liability of the contractor for the strength of the forms." We mention these provisions as showing the intimate connection of the "forms" with the erection of the structure and their indispensability.
In the case of Pacific Sash and Door Co. v. Bumiller,
In Darlington Lumber Co. v. Westlake Const. Co., 161 Mo. App. 723, [141 S.W. 931], where the facts were substantially the same as in the present case, the St. Louis court of appeals deduced the following rule: "Where certain material is provided for by the contract in erection of a structure, and is furnished and used accordingly, and is, either in whole or in part, consumed in its use, the materialman is entitled to a lien for the material thus consumed in the erection of the structure to the extent of the consumption of its reasonable value, regardless of the fact whether or not such material formed a permanent part of the structure when completed. Consumption of value means the depreciation in the market value of the material by the use provided for by the contract."
In Barker Stewart Lumber Co. v. Marathon Paper Mills Co.,
The logic of the decision in cases where powder is used 'does not," said the court, "depend upon the special character of the material, nor upon the extreme rapidity of its consumption, but upon the fact that it is consumed necessarily in the process of constructing the building or other structure, and that its life has gone into the fabric of the structure as effectually as has the stone or cement or the lumber which retains its existence as a part of the structure." The principal case as to explosives is Schaghticoke Powder Co. v. Greenwich Johnsonville Ry. Co.,
B. F. Avery Sons v. Woodruff,
Further pursuit of the question is deemed unnecessary. We do not think a general rule could be safely stated to govern all cases where lumber is used in making forms for concrete work in the construction of work contemplated by the mechanics' lien law. Each case must be governed by its own fact. This much, we think, however, can be said, and it is as far as the exigencies of the present case require; that, under the circumstances or facts shown, plaintiff is entitled to a lien for the materials it furnished and the mill work necessary for the preparation of such materials for use.
Respondent calls attention to the fact that the complaint was filed prior to the decision in Robison v. Mitchel,
It is true that the findings are contrary to the allegations of the complaint: (1) That there was an abandonment of work for thirty days on July 14, 1909, and (2) that the building was completed by the contractors. The court found against the averment as to cessation of work and also found that the building was completed by defendant and not by the contractors. But this was in strict accord with the averments of the answer many times repeated, and in accord with averments in the complaints in the consolidated action. No pretense was made at the trial that the contractors completed the building, and it was not disputed at the trial that there was not a cessation of work for a period of thirty days. We do not think that contradictory averments in or statements not true in the complaint when at variance with the findings should be held fatal to recovery, where the answer cures the contradictions or misstatements, and the findings are as alleged by the answer supported by uncontradicted evidence. Allegations omitted or defectively stated may be cured or supplied by the defendant in its answer. (31 Cyc. 714; Bliss on Pleading, 437;Donegan v. Houston,
In this respondent's complaint there was a failure to allege a fund subject to liens. Respondent meets the objection by resort to allegations found in other complaints and by the considerations set forth under the Olson-Mahoney claim. This, we think, under the rule governing in a consolidated action, was allowable. This rule we understand to be that the effect of the order of consolidation is to unite the causes of action so as to constitute one cause of action and one pleading, and that allegations in one complaint will remedy defects and supply omissions in another. *352
In speaking of an issue in Union Lumber Co. v. Simon,
It is further urged that there is a variance between the complaint and the lien. The point is that the complaint relied on a contract for recovery. The averment is: "That the following is a statement of the terms, time given and conditions of the plaintiff's contract under which it furnished said building materials, to wit: Said Condon-McGlynn Company while working on said building or structure ordered from plaintiff, for use in said building, and delivered the same and charged therefor the actual value and market rate thereof."
The lien sets forth the character of the materials and their value and that no part of the same has been paid, etc.: "That the following is a statement of the terms, time given and conditions on which said building material was furnished, to wit: From time to time while said Condon-McGlynn Company were engaged in the construction of said building its duly authorized agent ordered from claimant for use in said building said material, to wit: Said crushed rock, and claimant furnished and delivered the same upon the order of said Condon McGlynn Company and charged therefor the sum of six hundred and fifty dollars."
The lien says nothing about a contract, but the law implied a promise to pay. The complaint stated the facts the same way, but chose to say that the terms, time given and conditionsof the contract were, etc., and it then follows the lien. We cannot assume that the pleader meant a contract other than such as would be implied from the facts stated.
The lien states that respondent "furnished materials consisting of 2042 1/2 barrels of standard Portland cement of the reasonable value of $3,849.68, to be used," etc., under a certain written agreement. "Price. One dollar and seventy-five cents ($1.75) per barrel f. o. b. cars at factory." Shipments to be made "in carload lots as ordered by buyer." It was stated that "three hundred and seventy-five pounds net of cement, packed in four bags constitute a barrel"; that the seller would pay five cents for each bag returned to the factories in good condition; seller to pay freight on returned bags; that no part of said $3,849.68 has been paid except the sum of five hundred dollars, and there are no offsets except $29.25 due to said contractors for sacks returned, and there is now due and unpaid the sum of $3,320.43, etc.
The testimony was that respondent delivered to the contractors 2042 1/2 barrels of cement under the contract; "that the total price of the same was $3,849.68; that the reasonable value of said cement was $3,849.68." It appeared that 722 1/2 barrels were furnished not at the factory, as the contract called for, but from a warehouse in San Francisco, where respondent had it in storage; that the contractors were charged for all the cement at the rate of $1.75 per barrel except as to the 722 1/2 barrels there was added the freight from the factory to the city, $114.56, and warehouse charges, $16.25, and five cents each for 2042 sacks, $144.50; that the 722 1/2 barrels were furnished from the warehouse at the contractors' request "and they agreed to pay therefor the contract rate of $1.75 per barrel plus the freight, warehouse charges and five cents for each sack. That 2042 1/2 barrels was all the cement ordered by the Condon-McGlynn Company "and it was up to standard in every respect." The witness testified that there was due at the commencement of the suit $3,320.43, from which should be deducted for sacks returned $479.20, leaving due $2,841.23. It thus appears that respondent *354 charged the contract price for the cement, $3,574.37, to which was added $275.31, being the freight and warehouse charges on the cement. The notice very clearly stated that the contract called for cement at an agreed price per barrel delivered at the factory f. o. b. cars. Nothing was said in the notice of lien of any other agreement, or that delivery might be made at San Francisco at the contract price plus freight and warehouse charges. This arrangement as to part of the cement might have been equally advantageous to the contractors, and as between respondent and the contractors was proper enough, but the defendant had a right to rely upon the terms stated in the notice of lien, for the purpose of the lien is to inform defendant of the extent of the lienor's claim. The notice here informed the defendant that the contractor had agreed to pay $1.75 per barrel for the cement at the factory, but the owner was not informed that as to part of the cement a different agreement was made which, if enforced against defendant, would add materially to its liability. That all of the cement was not delivered at the factory is not material, as the price charged was the same at the factory and at San Francisco. The amount of respondent's claim, we think, should be ascertained without including the charges for freight and warehousing.
Whatever of insufficiency there may be in these averments it was cured by sufficient allegations in other complaints. It is further contended that the claim as allowed of $2,179.50 must be reduced to $1,714. *355
It appears that claimant had a specific contract for materials and work for the specific price of $3,165 and that, up to July, 1909, when the work on the building was abandoned, the materials and work of claimant amounted to $2,179.50, on which no payment had been made. The notice of lien set out the contract as above stated and that the labor and materials done and furnished under said contract at the cessation of work on the building was $2,179.50, which the lien states was the reasonable value "estimated according to the market value thereof, also measured according to said contract price." It appeared that after abandonment claimant made a contract with Charles S. Wright to complete the work originally contracted for by claimant but at an increased compensation, the reason for which was fully explained. The witness testified: "At the time of making out his claim of lien of $2,179.50, I took the same figures to make that item as I took in making the original bid" and "that the value of the materials already in at the time of the abandonment, based upon the contract price, was $2,179.50." It was brought out, on cross-examination of the witness, that if he had figured in making the original contract as he explained would have given him the real value of the job, "the estimate would have been the sum of $4,018.18, but I made a contract for $3,165.00. That the value of each item that I did would be the proportion that I estimated it based upon the proportion of $3,165.00 to $4,018.18." Upon this testimony appellant says that he "can claim only 3165/4018 of the amount, or $1,714." This contention is based upon what might have been and not on what was the fact. We cannot see that respondent's contract with Wright to complete the work agreed upon originally cuts any figure. When the abandonment occurred respondent had done certain work and furnished certain materials under his contract and, as was testified, "all of these materials were furnished to the building and actually used in the building, and that all the labor was used in preparing the materials and installing them in the building," and "that there were no materials on the ground at the time of the abandonment to his knowledge, and that none of the materials were hauled away after the abandonment." In this condition of the facts we think the finding of the court supported. *356
These averments of the complaint as to the fund were not challenged for insufficiency. The facts as we have seen as to the cessation of labor, the taking over of the work by defendant soon thereafter, and the completion of the building are all hereinbefore pointed out and, as we understand the decisions, all the plaintiffs may have the benefit of them.
Appellant relies upon Davis v. Treacy,
In the present case there was no demurrer to the complaint. The only objection to the lien as evidence was that there was a material variance between the lien pleaded and that the lien was filed too late, both of which objections were properly overruled. It is very certain that no prejudice accrued to defendant from the alleged omission of allegations in the complaint, and on the evidence but one judgment could have been rendered. We think section
As to the claims of J. P. M. Phillips and Bay Development Company the objections have been considered in other cases.
Finally, the claim of the San Francisco Teaming Company is attacked: First, because the complaint does not contain any allegation of abandonment. This objection has been previously noticed, and it was shown that other complaints contained ample allegations as to the fact as well also the answers and, besides, the findings are clear upon the point. Second, it is urged that the lien does not state the terms, time given, or conditions of the contract as shown by the contract, and there is a material variance between the lien and the evidence. (Citing California Portland Cement Co. v. Wentworth Hotel Co.,
Witness Donaldson, respondent's bookkeeper, testified that there was an agreement to "supply them with sand at one dollar a load; teams at the running rate that was in existence at that time." Later in his testimony he corrected the above statement and testified that he knew of no specific price agreed upon; that most of the details were handled through him, but that he had no recollection of the price being mentioned. The substance of this witness' testimony was that the contractors verbally as needed ordered teams and sand and charges were made "at the running rates" — the "ordinary market running rate." Witness Condon, one of the contractors, testified that he did not remember that there was a written contract with respondent but that the understanding was verbal; the sand was to be delivered "at so much a load depending on the haul, the minimum would be one dollar a load"; that there was no particular agreement as to the price the teams were to be paid; that the day after hauling a statement would be made and if the price "showed too high a price, it was sent back for correction"; the price payable for sand depended upon the distance it was hauled and the teams were to be paid "the current rate" and "a dollar a yard for hauling the sand a reasonable distance." The bills from time to time were made out, as we understand the testimony, "at the running rates" for the sand and teaming, *359 amounting to $631.12, of which three hundred dollars was paid, leaving a balance of $331.12. We think it fairly inferable from the testimony that the contract, such as existed, was an implied one, and that payment was to be made upon the performance of the labor or delivery of the sand, and both were to be paid at "the going rates" which the testimony established. The real question, then, is — Is the notice of lien fatally defective in not stating the terms of payment or price at which the labor was to be done and the sand to be furnished? As the facts appear, the price could not have been stated, since no price was agreed upon. The contractors simply gave orders for the teams and sand as required, and the obligation on their part was such as the law would imply. Such an implied obligation would clearly arise to pay on delivery or performance by respondent, and it would seem to us that there would also arise an implied obligation to pay the current or going rates for the labor or materials thus furnished.
In the case of Blanck v. Commonwealth Amusement Corp.,
Section 1187 of the Code of Civil Procedure requires of the lienor that he make a statement in the notice "of the terms, time given and conditions of his contract." The notice gave the terms as cash and, as to the time, payment was to be on delivery of the materials or performance of the labor. Full and literal compliance with the statute would have required a statement that the price to be paid was the current or market rate at the time for the labor and materials. But as in fact this is what was claimed, and what was understood by the parties, and would be implied as the contract in the absence of a specific agreement otherwise, we are unwilling to hold that the omission in the notice was fatal to its validity. (Barrett-Hicks Co. v. Glas,
The lien adjudged in favor of the Santa Cruz Portland Cement Company for the sum of $2,760.80 should be reduced by the sum of $275.31; otherwise, the judgment is affirmed.
Hart, J., and Ellison, J., pro tem., concurred.
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 June 30, 1916.