Snell v. Payne
115 Cal. 218
Cal.
1896
Check Treatment
McFarland, J.

This action was brought by the plaintiff Snell to foreclose a lien for materials furnished for and used in the construction of certain buildings on the land of defendant Payne. After plaintiff had introduced his evidence the defendant moved for a nonsuit. The nonsuit was granted and judgment entered for defendant; the plaintiff appeals from the judgment upon the judgment-roll and a bill of exceptions.

Respondent contends that the merits of the appeal cannot be considered because the bill of exceptions does not contain any specification of errors; but this contention cannot be maintained, because it has been frequently held by this court that a bill of exceptions, except as to the ground that a finding or decision is not supported by the evidence, need not contain specifications of error. (Reay v. Butler, 69 Cal. 572; Shadburne v. Daly, 76 Cal. 355; Hagman v. Williams, 88 Cal. 146.)

The grounds upon which the motion for a nonsuit was made do not appear, except so far as they may be gathered from findings which the court filed at the time the motion was granted; but these so-called findings cannot be considered where the case was decided upon a motion for nonsuit. It appears, however, from the *221bill of exceptions, that the court sustained an objection to the introduction of appellant’s lien, and the views of the court upon the case are to a considerable extent developed by that ruling. We see no objection to the said claim of lien which appellant offered. The grounds of the objection to the offered document were as follows: 1. That the lien, in designating the amounts due on each of the three buildings which were erected, stated the amount upon each to be eighty-seven dollars and eighty-eight and one-tliird cents, instead of sixty-six dollars and eighty-eight and one-third cents, which latter sum was in fact the true amount; 2. That the lien did not state the terms, time given, and conditions of the contract; and 3. That the appellant charged for eighteen barrels, in which the lime which he furnished was packed, at twenty-five cents each. (As to this last-named ground it appears that the lime furnished by appellant was packed in barrels; that most of the barrels were returned to appellant after the lime had been used, and a credit given by appellant of the value of the barrels; but that eighteen of such barrels were not returned and no deduction was made for the value of the barrels, which were rated at twenty-five cents each.) With respect to the first objection, it is sufficient to say that the amount designated for each of the three buildings was upon its face a mere clerical error, and that at most the only penalty for such error would be a postponement of the liens to the claims of other lienholders, and such error would not invalidate the lien. As to the second objection, the only point which seems to be made is that the lien did not designate with sufficient accuracy the time of payment for the lime; but the recorded lien showed that it was to be delivered in such quantities as might be directed during the progress of the construction of the building, and that appellant “was to be paid thereafter therefor, on demand of payment as to each delivery of any quantity on said property by him, the reasonable market value thereof”; and we think that this was a sufficient statement upon this *222subject. As to the third ground, we think that where material is usually delivered in certain packages, it is proper to charge for it as packed, although the small material constituting the package does not literally go into the construction of tlie building; but, at best, the matter under consideration would merely be an overcharge; and it is quite clear that a recorded lien, good in other respects, cannot be rejected because the amount claimed is somewhat larger than can be sustained by the proofs, unless it be so willfully false as to amount to a fraud; and nothing of that kind appears here. (Barber v. Reynolds, 44 Cal. 519; Harmon v. San Francisco etc. R. R. Co., 86 Cal. 617; Malone v. Big Flat Gravel Min. Co., 76 Cal. 578.) The court, therefore, erred in sustaining the objections to appellant’s offered claim of lien; and, for this reason, the judgment must be reversed. Of course, the action of a trial court in granting a nonsuit would be sustained, no matter whether the proper grounds were stated by the moving party or not, where we could see any valid ground for sustaining such action; but, in the case at bar, we can see no ground upon which the motion for a nonsuit can be sustained.

The judgment is reversed.

Temple, J., and Henshaw, J., concurred.