This action was, according to the original complaint filed therein, initiated fоr the purpose of obtaining a judgment against one Gorey, a contractor, for the amount of a bill for materials furnished him by the plaintiff, and against Charles T. Schmitt,, to foreclose a mechanic’s lien on his building, which Gorey had contracted to build, and in the construction of which the materials bought by Gorey from the plаintiff had been used. Elizabeth T. Randall was also made a party to the suit as a mortgagee of Schmitt. Finding that the contract between Gorey and Schmitt was void bеcause it had not been filed in the office of the county recorder bеfore the commencement of the building, as is requisite to its validity under chaptеrs 1, 2, and 3, title 4, Code of Civil Procedure, the plaintiff filed an amendment to the first cоmplaint, in which, setting out the fact that the contract aforesaid was void, it is sоught to hold
Upon the evidence which was introduced before thе court, a motion was made by Gorey and Schmitt for a nonsuit, which was granted, and judgmеnt entered accordingly, from which this appeal is prosecuted.
The only point made by the appellant in favor of a reversal of the judgment is, thаt the court erred in refusing to render a personal judgment against Schmitt, instead of granting the nonsuit as to him.
It is not controverted that the evidence shows that ’both thе contract of Gorey with Schmitt, because not filed according to law, and the lien of the plaintiff, because the affidavit attached to it was deficient, were void; ¡but it claimed, although no lien exists on the building as vto .the contractor, and those who may claim under him, .and none as to the material-man, that nevertheless, .according to section 1183, Code of Civil Procedure, the plаintiff ought to have had a personal judgment against ,Schmitt, with whom he never had any сontract to furnish ffche building materials.
"The language of the statute under which this cоntention is made, speaking of the contracts between contractors and owners of buildings, is:—
■“ 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 shall, before the work is commenced, be filed in the office of the county recorder of the county or city and county wherе the property is situated, who shall receive one dollar for such filing; othеrwise 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 afore-' said, except the contractor, shall be deemed to have been*627 done and furnished at the personal instance of the owner, and they shall have a lien for the value thereof.” (Sec. 1183, Code Civ. Proс.)
We cannot agree with the appellant in a case where neithеr the contractor nor the material-man has filed any lien, such as is given them by stаtute, that under the section, swpra, a personal judgment for the value of the matеrials furnished may be had against the owner of the building, who did not purchase them, and whо was under no contract with the material-man, either express or implied, tо pay for them. That section, as it seems to us, means to preserve the right оf the material-man who has duly filed his lien according to the statute, in cases where the contractor has failed by reason of not filing his contract to рreserve the material-man’s rights thereunder; and the language of the statute announces the law to be that where such is the case the material-man may duly file his lien, and enforce it just as if the owner of the building had bought from or contracted for the materials with the material-man in the beginning, instead of the contractor.
It follows that the judgment should be affirmed.
Hayne, C., and Belcher, 0. 0., concurred.
The Court.—For the reasons given in the foregoing opinion, the judgment is affirmed.