48 Cal. 175 | Cal. | 1874
LIENS OF MECHANICS AND MATERIAL MEN. — There is no constitutional objection to a statute securing a lien to material men, who, at the instance of a contractor, furnish him with materials which are used in the construction of the building, provided the aggregate liens do not exceed the contract price, as fixed by the owner and contractor.
IDEM. — If the statute gives the material man a lien on the building for materials furnished by him to a contractor who contracts with the owner, the contractor and owner cannot deprive the material man of his lien, by a clause in the contract, by which the contractor agrees to indemnify the owner against any liens taken by persons furnishing materials to be used in constructing the building.
IDEM. — If the material man obtains judgment against the owner, and against the property, the owner may deduct the amount of the judgment from any sums due the contractor, on the contract price. We can see no constitutional or other objection to a statute securing a lien to a material man for the value of the materials which have gone into a building; provided, the aggregate liens do not exceed the contract price as fixed by the owner and original contractor.
And in such cases the contractor and owner cannot deprive *178 the material man of his lien by introducing a stipulation into the building contract, by which the contractor agrees to indemnify the owner against any lien by persons furnishing materials to be used in the construction of the building.
In case of judgment on behalf of the material man against the owner and his property, the latter is entitled to deduct from any sum due the contractor, the amount of such judgment. (Stats. 1867-8, p. 592.) On the present appeal it does not appear that the asserted liens amount to the contract price, or that such price was paid when this action was commenced, or the liens were filed.
Judgment reversed and new trial ordered.
Mr. Justice RHODES did not express an opinion.
*532