73 P. 150 | Cal. | 1903
This is an appeal from a judgment in favor of the defendant, given upon an order sustaining a general demurrer to the complaint. The action is to foreclose an alleged lien for materials furnished to a contractor for use in making additions and repairs to a building of the defendant. The complaint is in two counts. The first is based upon the theory that the contract is void because the amount *380 agreed to be paid thereunder exceeded one thousand dollars, and the contract, though duly filed for record, and in other respects valid, does not state the total amount to be paid thereunder, nor show on its face whether that amount is greater or less than one thousand dollars. The second is founded on the proposition that the contract is void because the parties did not exact or give any bond, as required by section 1203 of the Code of Civil Procedure.
With respect to the second count, it is only necessary to say that it is now settled by the decisions of this court that the provisions of section 1203 of the Code of Civil Procedure, requiring that a building contract shall be accompanied by a bond, are unconstitutional and void. (Shaughnessy v. AmericanSurety Co.,
The decision of the question arising upon the first count of the complaint depends on the construction and effect of a portion of the last sentence of section 1183 of the Code of Civil Procedure. The sentence, a part thereof to which we shall refer, being put in italics for the sake of clearness, is as follows: "All such contracts shall be in writing when the amount agreed to be paid thereunder exceeds one thousand dollars, and shall be subscribed by the parties thereto, and the said contract, or amemorandum thereof, setting forth the names of all the parties tothe contract, a description of the property to be affectedthereby, together with a statement of the general character ofthe work to be done, the total amount to be paid thereunder, andthe amounts of all partial payments, together with the times whensuch payments shall be due and payable, shall, before the work is commenced, be filed in the office of the county recorder of the county, or city and county, where the property is situated, who shall receive *381 one dollar for such filing; otherwise, they shall be wholly void, and no recovery shall be had thereon by either party thereto; and in such case, the labor done and materials furnished by all persons aforesaid, except the contractor, shall be deemed to have been done and furnished at the personal instance of the owner, and they shall have a lien for the value thereof." The contention is, that this statute requires that the contract shall state the total amount agreed to be paid thereunder, and that if it does not so state it is void, with the consequence that the property is subject to liens, although payment has been made of the contract price. This contention rests chiefly on the claim that the part of the sentence in italics in the above quotation is to be taken not only as a modifying clause to the preceding words, "memorandum thereof," but also to the preceding word "contract," and operates as a statement of the provisions which the contract must contain. This proposition is clearly untenable. It is contrary to the rules of grammatical construction, and not in accordance with the obvious intention of the legislature, which was to set forth in the clause in question the portions of the contract that were to be inserted in the "memorandum thereof," which, it is provided, may be filed in case the parties do not choose to file the contract itself.
It may be further insisted that, conceding that this clause was enacted for the purpose stated, nevertheless, as the memorandum is required to state the "total amount to be paid" under the contract, it must be necessarily inferred that it was intended that the contract also should state such amount, either in one sum or in detail, because otherwise the memorandum could not be made complete, and that this necessary inference is equivalent to a statutory command.
The right to acquire, possess, and protect property includes the right to make all reasonable contracts with respect thereto, and this right is guaranteed by the constitution. The right of the "owner is invaded, if he is not at liberty to contract with others respecting the use to which he may subject his property or the manner in which he may enjoy it." (Stimson Mill Co. v. Braun,
The provision in question is also highly penal in its *382
character, a violation of its mandates subjecting the owner to a liability for debts which he never agreed to pay, and for which he receives no benefit. "A statute which provides for making one person liable for the debts of another, and prescribes how and under what circumstances he shall be held thus liable, is penal in its nature, and, like other statutes which create a forfeiture or impose a penalty, is to be strictly construed against the liability." (Moore v. Lent,
There is nothing in the terms of section 1184 of the Code of Civil Procedure that is contrary to this conclusion. It requires the contract price to be made payable in installments, at specified times, and that twenty-five per cent must be payable at least thirty-five days after the completion of the work. But this can be done without stating either the amount of each payment or the total amount of them all. A statement *383 of this total is not required by the terms of the section, nor necessary to effect its purpose.
The contract involved was for the lathing and plastering of certain additions to a house, at nineteen cents a square yard, and the removal of the old plastering and replacing it with new, in some of the rooms where directed by the owner, at thirteen cents a square yard. The amount of plastering to be done was thus left indeterminate, depending on the future directions of the owner. There is nothing to show that the new lathing and plastering to be done under the contract would have amounted to more than one thousand dollars, at the price named, if completed. The allegation is, that all the work to be done and materials to be furnished (the contract having been completed), including the old with the new, did in fact amount to more than one thousand dollars. It is not unreasonable to suppose that the amount of old plastering to be taken off and replaced could not be ascertained at the time the work began. In case of the removal of a building, or in any case where alterations are made to an old building, the performance of the new work may in itself damage the old one, and make it impossible to know or determine in advance how much of the old plastering may need to be removed. In such a case it may be necessary to make the contract for a fixed price per yard, or to merely contract for the work, in either event leaving the total amount to be determined by the performance, and, if no measure of value is fixed, by the reasonable value of the work. The right to make such contracts, under such circumstances, is necessary to that full enjoyment of property which is protected by the constitution. To take away this right, would be an infringement of the constitutional guaranty. There is nothing in the statute which expressly prohibits such a contract, and the court cannot construe it to have an effect which would make it unconstitutional.
For these reasons the judgment is affirmed.
Angellotti, J., and Van Dyke, J., concurred.
Hearing in Bank denied.