265 P. 572 | Cal. Ct. App. | 1928
This is an action for the foreclosure of a materialman's lien. From a judgment in favor of plaintiffs decreeing that said lien be foreclosed defendants appeal.
There is but one question presented here and that is the claim of lien did not comply with the statute in that it did not describe the kinds of materials furnished. No other point is urged on the sufficiency of the claim of lien, it being conceded that the claim in all other respects conformed to the requirements of the statute. All that appears in the claim of lien relating to the kind of materials furnished is as follows: "Notice is hereby given that J.E. Winship, J. Vernon Winship and Frank E. Winship, copartners doing business under the firm name and style of J.E. Winship Sons, dealers in lumber and building materials at all times hereinafter set forth, furnished materials which were actually used in the construction of certain buildings, to wit, two frame dwellings and garage now upon that certain lot of land situate in the city of Riverside, County of Riverside, State of California, and sought to be charged with the lien" (describing property). Further in the claim of lien appears this paragraph: "That J.T. Nicholson, also known as Joseph T. Nicholson, is the name of the contractor with whom said parties contracted for the construction of said buildings, and that as such contractor with whom said parties contracted for the construction of said buildings, and that as such contractor and agent for said owners, entered into an oral agreement with said J.E. Winship Sons to furnish building materials."
The appellants urge the insufficiency of the claim of lien, and base their contention upon the wording of the statute which gives the right of lien and the authorities construing said statute.
Section 1187 of the Code of Civil Procedure provides: "Every original contractor claiming the benefit of this chapter, and every person save the original contractor claiming the benefit of this chapter, may file for record with the *73 county recorder of the county or city and county in which such property or some part thereof is situated a claim of lien containing a statement of his demand after deducting all just credits and off-sets, the name of the owner or reputed owner, if known, a general statement of the kind of work done or materialsfurnished by him, or both, the name of the person by whom he was employed or to whom he furnished the materials, and a description of the property sought to be charged with the lien."
[1] The appellants contend that the claim of lien does not meet the requirements of the statute in that it contains no statement of the kind of materials furnished.
In determining the question presented and in discussing the sufficiency of the claim we will consider the notice of claim of lien as a whole, that is to say, that if in any portion of the claim there appears a sufficient statement of the kind of materials furnished the objection would be met. Therefore, taking the first portion of the claim as hereinbefore given we find the statement merely that materials were furnished. In the second paragraph we find the statement that an oral agreement was entered into for the furnishing of building materials, and the further statement that such agreement has been fully performed. Summarizing the contents of the claim we find this much expressly stated therein; that claimants, dealers in lumber and building materials, furnished building materials which were actually used in the construction of certain frame buildings; and in addition thereto the claim of lien sets forth that the owners had due notice of said materials being furnished for said buildings.
We may repeat here that it is conceded that in all other respects the claim of lien complies with the requirements of the statute.
The contention of appellants is disposed of in the very recent case of Trout v. Siegel et al.,
In addition to the cited case the following recent decisions of our supreme court may be noted: Hammond Lumber Co. v. BarthInv. Co.,
Judgment affirmed.
Tyler, P.J., and Knight, J., concurred.
A petition by appellants to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 7, 1928.
Waste, C.J., dissented.