The Court.
This is an action brought by plaintiffs having several liens of mechanics and material-men against property owned by Péndola, deceased, in his lifetime.
The findings show that Péndola entered into a written agreement with one Hamilton on March 29, 1887, for [40]*40the construction of the Western Hotel, in the city of Santa Barbara, and on the 15th of June entered into another contract with said Hamilton to build a cottage near said hotel and on the same lot. Neither of these contracts was recorded. Belt & Co. furnished materials for both buildings, for which Hamilton agreed to pay a reasonable price. The court finds that the reasonable value of the materials furnished by them was $363.99. On May 2, 1887, Hamilton entered into an agreement with Backus & Heyl, by the terms of which the latter were to paint the hotel for the sum of $365, and the cottage for the sum of $135. The court finds that of these sums $131.71 remain unpaid. Lightner & Buckingham furnished materials for and performed certain work on the cottage, for which Hamilton was to pay the sum of $335, and performed certain work on and furnished materials for the hotel, for which they were to receive the sum of $975, of which the sum of $535.35 remains due and unpaid.
1. The claims of lien filed by Backus & Heyl and Lightner &.Buckingham segregate and specify the amounts which they were to be paid on each building, and state the total of the amounts paid to them, and the balance due on both buildings. It is not stated, either in the complaint or in the findings, how much remain due on each of the buildings, and the question is presented whether a joint lien can be filed against two buildings where they are separate structures which have been erected at different times, and under different contracts between the owner and the original contractor. It seems to be conceded that a joint lien may be filed against two buildings erected at the same time and under the same contract. We think there can be no doubt that such is the case; and whatever may be the rights of an original contractor having constructed two separate buildings under two separate and valid contracts, we think that in the case at bar the only effect of the failure to state how [41]*41much labor and material was furnished one building, and how much the other, is to postpone the liens of these claimants, and give precedence to the liens of others.
2. The complaint alleges that Hamilton agreed to pay Backus & Heyl the sums of §365 and $135, above referred to, and that he agreed to pay Buckingham & Lightner the sum of $975 for work done on and material furnished for the hotel, and $335 on account of the cottage; but it is nowhere alleged, nor does the court find, what was the value of any of the materials furnished or any of the work performed. Such allegations and findings were necessary, and the judgment cannot be supported without them. The contract between the owner and Hamilton was never filed for record. It was void, and while it is doubtless true that the contract price agreed upon between Hamilton, the agent of the owner, and the material-men and laborers, is prima facie evidence of the value of the materials furnished and labor performed, and would support a finding of value, we think that an allegation and a finding on the subject are essential to support a judgment in actions of this character.
All other points made by appellant and worthy of consideration were noticed by Mr. Justice McFarland in the opinion filed in Department, and we are satisfied with the conclusions therein reached.
Judgment as to plaintiffs Buckingham and Heyl is reversed, and the cause is remanded for a new trial, with permission to amend their pleadings as they may be advised. In all other respects the judgment is affirmed.
The following is the opinion above referred to, rendered in Department Two on the 31st of January, 1890:—
McFarland, J. — This is an action brought by plaintiffs, having several liens of mechanics and material-men, against property owned by Giovanni Péndola (now deceased) in his lifetime. He died during the pendency of the action, and his executors were made defendants. [42]*42Other persons were also made defendants, who 'set up other mechanics’ liens on the property. The judgment went for plaintiffs, and for the defendants asserting liens.
The plaintiffs, executors of said Péndola, deceased, appeal from the judgment, and from an order denying a new trial.
The only safe course for one desiring to have a house built by contract, when the price exceeds one thousand dollars, is to have the contract written and recorded, as provided by section 1183 of the Code of Civil Procedure, and to follow the contract in his payments of money. This is, no doubt, a hardship to owners of land who desire to improve it, and limits, to them, the general control which men usually have over their own property. But it is quite evident that the legislature has industriously endeavored by extreme means not only to protect and favor mechanics and laborers who actually work on buildings (which seems to have been the original notion of a “ mechanic’s lien ”), but also certain merchants who are brought in under the category of “material-men.” And as long as the provisions of the present lien law are held to be constitutional (and they seem to have been so held by this court), owners of buildings must protect themselves by the written contract provided by the code, — unless they can induce the legislature to change the law. In the case at bar the owner did not have any recorded contract; and that neglect has given rise to most of the questions in the case, — as similar neglects have brought many similar cases to this court. We have examined all the points made and argued in this case, and we find no error which should work a reversal of the judgment. We shall briefly notice a few of those points.
Several different liens were united in the complaint,—• which may be done under section 1195 of the Code of Civil Procedure,— and appellant contends that the different causes of action were not separately stated. It is doubtful if this point can be raised on the record; but, [43]*43at all events, we think that there is a sufficient separate statement. There was a distinct statement of the facts as to each lien, and there was no necessity that they should be numbered or otherwise formally designated.
There were two houses built on the same lot,—the Western Hotel and the Péndola cottage,— and appellant objects that in some of the liens it does not appear how much material and labor were furnished for one, and how much for the other But that circumstance, under section 1188 of the Code of Civil Procedure, would only have the effect of giving precedence to other liens. It would be no concern of the owner of the lot (See Dickenson v. Bolyer, 55 Cal. 285.)
The demurrer to defendant McCann's supplemental cross-complaint was properly overruled. It contained a sufficient averment of presentation of the claim to Pendola’s executors, if such presentation was necessary
Appellant contends that it was error to allow plaintiffs to testify, because the defendant Giovanni Péndola having died before trial, they were incompetent as witnesses under subdivision 3 of section 1880 of the Code of Civil Procedure. It is to be observed that at one time a party was prohibited from testifying in any case
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The Court.
This is an action brought by plaintiffs having several liens of mechanics and material-men against property owned by Péndola, deceased, in his lifetime.
The findings show that Péndola entered into a written agreement with one Hamilton on March 29, 1887, for [40]*40the construction of the Western Hotel, in the city of Santa Barbara, and on the 15th of June entered into another contract with said Hamilton to build a cottage near said hotel and on the same lot. Neither of these contracts was recorded. Belt & Co. furnished materials for both buildings, for which Hamilton agreed to pay a reasonable price. The court finds that the reasonable value of the materials furnished by them was $363.99. On May 2, 1887, Hamilton entered into an agreement with Backus & Heyl, by the terms of which the latter were to paint the hotel for the sum of $365, and the cottage for the sum of $135. The court finds that of these sums $131.71 remain unpaid. Lightner & Buckingham furnished materials for and performed certain work on the cottage, for which Hamilton was to pay the sum of $335, and performed certain work on and furnished materials for the hotel, for which they were to receive the sum of $975, of which the sum of $535.35 remains due and unpaid.
1. The claims of lien filed by Backus & Heyl and Lightner &.Buckingham segregate and specify the amounts which they were to be paid on each building, and state the total of the amounts paid to them, and the balance due on both buildings. It is not stated, either in the complaint or in the findings, how much remain due on each of the buildings, and the question is presented whether a joint lien can be filed against two buildings where they are separate structures which have been erected at different times, and under different contracts between the owner and the original contractor. It seems to be conceded that a joint lien may be filed against two buildings erected at the same time and under the same contract. We think there can be no doubt that such is the case; and whatever may be the rights of an original contractor having constructed two separate buildings under two separate and valid contracts, we think that in the case at bar the only effect of the failure to state how [41]*41much labor and material was furnished one building, and how much the other, is to postpone the liens of these claimants, and give precedence to the liens of others.
2. The complaint alleges that Hamilton agreed to pay Backus & Heyl the sums of §365 and $135, above referred to, and that he agreed to pay Buckingham & Lightner the sum of $975 for work done on and material furnished for the hotel, and $335 on account of the cottage; but it is nowhere alleged, nor does the court find, what was the value of any of the materials furnished or any of the work performed. Such allegations and findings were necessary, and the judgment cannot be supported without them. The contract between the owner and Hamilton was never filed for record. It was void, and while it is doubtless true that the contract price agreed upon between Hamilton, the agent of the owner, and the material-men and laborers, is prima facie evidence of the value of the materials furnished and labor performed, and would support a finding of value, we think that an allegation and a finding on the subject are essential to support a judgment in actions of this character.
All other points made by appellant and worthy of consideration were noticed by Mr. Justice McFarland in the opinion filed in Department, and we are satisfied with the conclusions therein reached.
Judgment as to plaintiffs Buckingham and Heyl is reversed, and the cause is remanded for a new trial, with permission to amend their pleadings as they may be advised. In all other respects the judgment is affirmed.
The following is the opinion above referred to, rendered in Department Two on the 31st of January, 1890:—
McFarland, J. — This is an action brought by plaintiffs, having several liens of mechanics and material-men, against property owned by Giovanni Péndola (now deceased) in his lifetime. He died during the pendency of the action, and his executors were made defendants. [42]*42Other persons were also made defendants, who 'set up other mechanics’ liens on the property. The judgment went for plaintiffs, and for the defendants asserting liens.
The plaintiffs, executors of said Péndola, deceased, appeal from the judgment, and from an order denying a new trial.
The only safe course for one desiring to have a house built by contract, when the price exceeds one thousand dollars, is to have the contract written and recorded, as provided by section 1183 of the Code of Civil Procedure, and to follow the contract in his payments of money. This is, no doubt, a hardship to owners of land who desire to improve it, and limits, to them, the general control which men usually have over their own property. But it is quite evident that the legislature has industriously endeavored by extreme means not only to protect and favor mechanics and laborers who actually work on buildings (which seems to have been the original notion of a “ mechanic’s lien ”), but also certain merchants who are brought in under the category of “material-men.” And as long as the provisions of the present lien law are held to be constitutional (and they seem to have been so held by this court), owners of buildings must protect themselves by the written contract provided by the code, — unless they can induce the legislature to change the law. In the case at bar the owner did not have any recorded contract; and that neglect has given rise to most of the questions in the case, — as similar neglects have brought many similar cases to this court. We have examined all the points made and argued in this case, and we find no error which should work a reversal of the judgment. We shall briefly notice a few of those points.
Several different liens were united in the complaint,—• which may be done under section 1195 of the Code of Civil Procedure,— and appellant contends that the different causes of action were not separately stated. It is doubtful if this point can be raised on the record; but, [43]*43at all events, we think that there is a sufficient separate statement. There was a distinct statement of the facts as to each lien, and there was no necessity that they should be numbered or otherwise formally designated.
There were two houses built on the same lot,—the Western Hotel and the Péndola cottage,— and appellant objects that in some of the liens it does not appear how much material and labor were furnished for one, and how much for the other But that circumstance, under section 1188 of the Code of Civil Procedure, would only have the effect of giving precedence to other liens. It would be no concern of the owner of the lot (See Dickenson v. Bolyer, 55 Cal. 285.)
The demurrer to defendant McCann's supplemental cross-complaint was properly overruled. It contained a sufficient averment of presentation of the claim to Pendola’s executors, if such presentation was necessary
Appellant contends that it was error to allow plaintiffs to testify, because the defendant Giovanni Péndola having died before trial, they were incompetent as witnesses under subdivision 3 of section 1880 of the Code of Civil Procedure. It is to be observed that at one time a party was prohibited from testifying in any case where the adverse party was “the representative of a deceased person ” as to facts which accrued before the death of the deceased. (Civil Practice Act, sec. 3939; Hittell’s General Laws, 769.) The law was changed to the present provision, which is, that a party cannot be a witness m an action against an executor or administrator “ upon a claim or demand against the estate of a deceased person.” In Fallon v. Butler, 21 Cal. 24, 81 Am. Dec. 140, it was held that a “claim” referred only to such demands against the decedent as might have been enforced against him in his lifetime by a personal action, and did not include a mortgage lien, where no money judgment was sought against the estate. This ruling has been approved in Estate of McCausland, 52 Cal. 576, Estate of Swain, 67 [44]*44Cal. 641, and Stuttmeister v. Superior Court, 72 Cal. 489, although in those cases the application of the rule was not made to the precise question raised here. But in Myers v. Reinstein, 67 Cal. 89, the competency of a party as a witness against an administrator under section 1880 was directly involved, and it was there held that in an action to enforce a resulting trust against the personal representative of the deceased trustee, the plaintiff was a competent witness. The principle there adopted was essentially the same as the one here invoked by respondent. An action to enforce a mechanic’s lien is of the nature of a proceeding in rem; no personal Judgment can be recovered in it against the estate, payable in due course of administration; and therefore, in our opinion, it is not a “claim” within the meaning of subdivision 3 of section 1880. We think, therefore, that the court did not err in overruling the objections to the competency of the witnesses.
Appellant contends that there is no sufficient finding of the value of the materials and labor furnished by two of the lien claimants. But the court finds that they were employed by Hamilton, the contractor, at a certain price; and as, under the code, Hamilton was the agent of the owner, we think that this was sufficient.
There are other assignments of error, which we do not. deem it necessary to notice in detail. We have noticed those which we deem the most important. It must be remembered that the mechanic’s lien law of this state has been changed at nearly every session of the legislature since the first statute on the subject was passed; and that many former decisions of this court in relation to it rested upon provisions not now in existence. From a careful examination of the whole of the record in this case, we see no prejudicial error.
Judgment and order affirmed.
Thornton, J., and Sharpstein, J., concurred.