Bottomly v. Rector

2 Cal. 90

• Court: California Supreme Court
• Decided: January 15, 1852
• Status: Published

Opinion

Justice Heydenfeldt

delivered the opinion of the Court. This is an action by a material-man, under the mechanics’ lien law. The object of the plaintiff is to obtain a money judgment against one of the defendants, to whom he sold the lumber, and to have a decree against the other defendants who own the building, for the enforcement of his lien.

The statute certainly never contemplated that a lumber merchant should have the right of following the materials which he had sold to another, in general terms, and obtaining a lien upon any building to which the materials had been applied. The language of the act is sufficiently explicit, and must be strictly construed, because it gives rights in derogation of the common law. The materials must not only have been used in the construction of the building, but they must have been, by the express terms of the contract, furnished for the particular building on which the lien is claimed: and to entitle a material man to enforce such lien at law, these terms of the contract must be alleged and proved.

The declaration in this case avers that the lumber was used in the building, &c. This is not only an insufficient allegation, but, standing by itself, it excludes the conclusion which would be necessary to entitle the plaintiff to recover against the owners of the building. It shows upon its face no right whatever in the plaintiff, as against the Rector, Wardens, and "Vestry of Grace Church; and therefore- cannot sustain the judgment against them.

The judgment against the Rector, &c., is reversed; and the cause remanded.