90 Cal. 590 | Cal. | 1891
— This case was first submitted in Department Two, and on January 31, 1891, the judgment and order denying a new trial were reversed, the opinion having been prepared by Commissioner Foote.- A hearing in Bank was afterwards ordered, and the cause was again argued and submitted. After a full, consideration
In their brief on rehearing, counsel for appellant suggest that the last clause of the said opinion would compel the court below to render judgment against appellant for the full amount of twenty-five per centum of the contract price, and to exclude any credits which he might lawfully have. We do not think that such is the meaning of the opinion; but in order to remove any doubt on the subject, we say, in addition, that if appellant has any lawful credits under section 1200 of the Code of Civil Procedure or otherwise, he is entitled to the same, to be deducted from said twenty-five per centum.
The judgment and order appealed from are reversed, and the cause remanded for a new trial. ,
Beatty, C. J., dissented.
The following is the opinion above referred to: —
— Eight actions were brought against the defendants here, — the owner of a building, Thomas Norton, and his contractor, Thomas Helm, — to enforce the liens of certain mechanics and material-men. Before trial they were all consolidated. The contractor, Helm, made default. Norton, the property owner, answered, denying all the allegations of the complaints, except as to his ownership of the property on which the liens were sought to be enforced. Judgment passed for the plaintiffs, it being stipulated that there should be no priority in favor of one claim over another, and that all claims should be satisfied pro rata if the money arising from the sale of the property should be insufficient to pay all in full. From that judgment, and an order denying a new trial, the defendant Norton appeals.
One reason urged for a reversal of the judgment and order is, that the finding as to the notice of lien filed by the plaintiffs Smith & Waite, that it was “in due form,
With reference to the claim of Schwartz, Beebe & Co., it is objected that the evidence shows that their notice of claim of lien was not in legal form, as shown by their evidence, and therefore the finding that it is in due form is unsupported by evidence, as well as the finding that the contract was to furnish materials, etc., for what they were reasonably worth. It is further asserted that the claim of lien is at variance with the contract proved, in that the former states that the materials were furnished to Helm, and that claimants were employed by both Helm and Norton to furnish the same, while the evidence of one of the plaintiffs is: “ I made a contract about this lumber with defendant Norton about June 20th. The contract was made in this way: I met defendant Norton, and we talked over the prices of lumber and the discount for cash, and that wa,s the only time I ever had any conversation with him about it; and he said he was going to build a house, and wanted to know what the price of lumber would be. I had no conversation with defendant Helm about it. I never transacted any business with him about it. William Evans came after the lumber. He brought the bill there. I gave no particular time fur payment. It was to be a discount for cash. The amount charged in the notice of lien is the reasonable value of the lumber furnished; such as we sell it for in the market in our lumber-yard. About August 2d, I went to defendant Norton for payment. He said I must
From this it seems that Norton did make a contract with the plaintiffs to furnish the material; that it went into the building that Helm, the contractor, was erecting for Norton, and for which he got it from the material-men; and that Helm gave orders to pay for it drawn on Norton, which were paid. Thus it would seem that, practically, the materials were furnished to Helm; that Norton originally contracted for them; and Helm, by giving an order for the payment, admitted his liability to pay for them. How any injury could result to Norton from this kind of a variance we do not perceive, and therefore the statement of claim, so far as it mentions the name of the person by whom the plaintiff was employed, or to whom he furnished the materials, was substantially the same as shown in evidence. As to the terms and conditions of the contract, we think there is no substantial variance between the statement in the notice of claim of lien and the evidence.
As to the Reed, Smith & Co. claim, it is said by appellant that the contract as set out in the claim of lien is different from what the proof shows it to be, and as a consequence, the findings as to the nature of the contract, and that it was in due form, are unsupported by the evidence. In the notice, the contract as to price is, that it was “ the usual price, and what said materials were reasonably worth at their place of business”; that is, at
It is further argued, in reference to this claim, that there is a variance of a fatal nature between the notice of claim and the complaint; that the notice treats the contract between the contractor and the owner as valid; that it does not allege that the contract or a memorandum thereof was- not filed, and in this respect it differs from all the other notices of lien; that the complaint treats the contract as void for want of filing; that in the notice of lien it is alleged that Helm, the contractor, purchased the materials both as contractor and agent of Norton; that in the complaint it is alleged that he purchased as agent only. The point made seems to have been decided adversely to the contention made here, in Davies Henderson Lumber Co. v. Gottschalk, 81 Cal. 641-646.
We perceive no merit in the points made of the same tenor as to the C. H. Reed & Co. claim, looking at the record and the evidence, particularly as to the value of the materials furnished, and the way in which they were purchased and furnished.
As to the L. H. Simmons case, it is said that the complaint does not state a cause of action; that it does not state that the materials were used in the building. There was no special demurrer filed to this complaint, and the court found that the materials were used in the building, and the complaint set out that “said firm sold and delivered to said Norton certain hardware and building material to be used in the erection and construction of said building, and affixed and attached thereto.” If this hardware and building materials were affixed and attached to the building, they must be said to have been used in the erection and construction of it. Under the circumstances, we think the complaint was sufficient. There is nothing in the cases cited by the appellants to
It is contended, further, that the J. M. Huyck complaint does not state a cause of action, in that it omits to state that the building was completed. There is nothing in the point, as it is fairly inferable from the language of the complaint at folio 94 that the building was completed when the notice of lien was filed.
As to the point made of the variance between the actual contract made with Knight and the statement of the same in the notice of lien, it appears that it is well taken. The notice sets out “ that the agreement between him and said Norton was, that he was to be paid for said labor done and furnished at what it was reasonably worth, to be paid for when the work ceased.” The evidence is, on the part of Knight, that he had an express contract with .Norton to do painting for $250; that he did a portion of it, and stopped because Norton refused to pay him. He says: “ My contract was to furnish all the material and do all the painting for $250.” The other points made, that there is a variance between the notice and the contract proved, as to the name of his employer, and that the complaint does not show that the building was completed when the notice of lien was filed, are without force.
The point seems to be made upon the Mitchell complaint that it is not alleged therein that the contract for furnishing the materials, etc., was in writing or filed for record, and that as it was over one thousand dollars it was void. Mitchell was a mere subcontractor and material-man, and there is nothing in section 1183 of the Code of Civil Procedure requiring a contract of the kind he had to be in writing or recorded; and even if the contract between Norton and Helm had been void, there
The defendants argue that the findings are conflicting as to the completion of the building at the time the notices of lien claims were filed, and that the evidence shows that they were prematurely filed. We do not think either point well taken. The contractor had ceased to work upon the building for thirty days on December 10, 1889, before the lien claims were filed, and this is held to entitle such claimants as are here involved to file their notices of lien as they did. (Kerckhoff-Kuzner Mill and Lumber Co. v. Olmstead, 85 Cal. 84.)
But we do not think that the finding of the court that the work was commenced before the contract or a memorandum thereof was filed in the recorder’s office of the proper county is sustained by the evidence. The memorandum was filed on the 25th of June, at 10:30 o’clock, A. m. While even admitting the plaintiffs’ view of the testimony to be correct, which is doubtful, that any work at all was commenced before this filing, it was of the most trivial nature, and was not commenced until, at the earliest, 8 or 8:30, A. m., of the same day. It should be held, under the evidence, that the filing of the memorandum was before the work was actually commenced.
The objection urged that the contract as made is defective, in that the time specified for payments thereunder is not in accordance with section 1184 of the Code of Civil Procedure, which reads thus: “No part of the contract price shall, by the terms of any such contract, be made payable, nor shall the same, or any part thereof, be paid in advance of the commencement of the work; but the contract price shall, by the terms of the contract, be made payable in installments, at specified times, after the commencement of the work, or on the completion of specified portions of the work, or on the completion of the whole work; provided, that at least twenty-five per cent, of the whole contract price shall be made payable
In their opening brief, the respondents claim that in order for the memorandum to be valid, there must have been filed' in the recorder’s office the plans and specifications for the building. But this contract was made after the amendment of 1887 to section 1183 of the Code of Civil Procedure, and in that amendment it is not speci
In their reply brief they press this point no further, but claim that the memorandum filed is insufficient because it does not specify the time mentioned in the contract for making payments, and is not a memorandum of the contract as to payments. The memorandum, among other things, contains this: “ Said Helm to be paid five thousand five hundred dollars for all work, labor, and material; three fourths thereof payable in installments as work progressed. (Said Norton to pay the material-men, laborers, and mechanics upon the written order of said Helm; laborers and mechanics to be paid weekly during the progress of the work, until said three fourths is exhausted.) The other one fourth payable in thirty-five days after the final completion of the contract.” We do not see but what this is a substantial statement of “ the amounts of all partial payments, together with the times when such payments shall be due and payable,” as set out in the contract, and required to be in the memorandum, under section 1183 of the Code of Civil Procedure. The point is also made that certain of the verifications to some of the claims of lien are insufficient. But we see no merit in it; it is only required that the verification should state that the claim is true, without setting out the particulars which the law requires to be contained in the body of the claim. (Arata v. Mine Co., 65 Cal. 342.)
This disposes of all the material questions argued on the appeal, and it appears that the defendant Norton did not retain for thirty-five days after the final completion of the work and contract, and pay i,t over to those entitled thereto, twenty-five per cent of the contract price of five thousand five hundred dollars, and that he is responsible to that extent, but no further, to those who make good their claim to it; but the judgments rendered
Vanclief, 0., and Belcher, 0., concurred.
For the reasons given in the foregoing opinion, the judgment is reversed, and the cause remanded for a new trial.