[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
A rehearing of this cause in Bank was ordered, on the ground, among others, that the work done and materials furnished by the defendants Holt and Chandler were commenced prior to the date of the mortgage of the Continental Building and Loan Association, and not afterward, as stated in the decision heretofore filed. Hence, assuming the claims of these defendants to be valid, a new trial of the case as to them will be unnecessary. This renders necessary an examination of the validity of these claims. At the same time we will consider the other claims, omitting that of the Waggoner Brothers, with reference to which the former opinion will stand.
1. The material objections to the claim of Chandler are, in effect, that Mrs. Hutton is named in the claim as the person by whom he was employed, instead of the contractor, Waggoner, with whom the contract was in fact made; that an undetermined part of the materials furnished by the claimant were not used on the Hutton block, but on another building of the owner; that "the kind of materials furnished" — whether "iron, stone," etc. — is not stated; that the claim fails to "state the price at which either lumber or lime was sold," or that the articles were sold at an agreed price; and, finally, that there was a variance between the claim and the evidence, and between the claim and the finding. None of these objections are well taken; Mrs. Hutton was properly named as the person by whom the claimant was employed. It is expressly provided by the statute that, where the contract is not filed,
the labor and materials "shall be deemed to have been done and furnished at the personal instance of the owner" (Code Civ. Proc., sec. 1184); and there is no objection to the use of this form of statement. (Kellogg v. Howes, 81 Cal. 170.) With regards to the materials furnished the claim unequivocally states that all of them were used upon the building, and, from the stipulation read in evidence, this appears to have been the fact. It was unnecessary to state specifically the kind of materials furnished or the prices of the several items. (Brennan v. Swasey,16 Cal. 1411; Selden v. Meeks, 17 Cal. 129; Davis v. Livingston,29 Cal. 287; Jewell v. McKay, 82 Cal. 150.) The claim is, in effect, a sufficient statement of a special contract to pay for the materials furnished, and and would be sufficient as a complaint in indebitatus assumpsit, or debt. (1 Chitty on Pleading, 350, notes f, g. 351, 352.) Finally, there is no variance between the claim and the evidence or the finding. In the claim the statement is that the materials were to be paid for "in cash within sixty days from time of purchase of the item, and any item not paid for within that time was to bear interest at the rate of ten per cent per annum until paid." The agreed account read in evidence agrees accurately with this; and the finding is precisely to the same effect, except that it omits reference to the rate of interest. This, however, is in effect found in the finding that the claim — which is attached to the complaint, and the filing of which is not denied — "contained . . . . a true statement of [the] demand," etc.
The first of the above objections is made also to the claim of Holt, and what is said with reference to it will be understood as applying to his claim. The remaining objections to the claim are, in effect, that it does not truthfully state the terms of the contract, and that part of the labor was performed, not on the building, but on the adjacent sidewalk. With regard to the former point, the statement of the claim is that at the time of the work there was no agreement as to price, but it was agreed he was to be paid what his labor was reasonably worth; but afterward the sum of four dollars per day was agreed upon by Holt and Waggoner as a reasonable sum; and the statement is sustained by the written certificate
of Waggoner, as foreman, read in evidence. With regard to the other objection, the cement sidewalk must, under the circumstances of the case, be regarded as part of the building.
The claims of Holt and Chandler must, therefore, be regarded as sufficient.
2. The principal objection urged to the other claims is, in effect, that they fail to state, or to state truthfully, "the terms, time given, and conditions of [the] contract."
To simplify the question, it may be observed generally that in some of the claims the time of payment is stated; in others not. In the latter class of cases the presumption of the law is that no time was given. (Hills v. Ohlig, 63 Cal. 104; Jewell v. McKay,supra.) Also it may be stated that in some of the claims it is said that the contract of employment was made with Mrs. Hutton; in others, that it was made with Waggoner, as contractor and agent. But this, as we have held, is to be regarded as immaterial. The question to be considered relates, therefore, to the sufficiency of the statement of the terms of the contract in other respects.
In this regard all that can be required is the statement of the fact that a contract was entered into and such a statement of its terms as to show the indebtedness claimed. These conditions are sufficiently complied with in all the claims. In each of them the making of the contract and the labor performed or materials furnished are stated. In one of them (that of Trower) the labor was to be performed "at the usual rates," which is but another way of saying, "for what it was reasonably worth" (Reed v.Norton, 90 Cal. 596, 597), and its value was accordingly stated. In all the other claims the agreed price is stated, either in the aggregate, or — in the case of labor — the per diem rate and the number of days. In this respect, therefore, the claims are sufficient. There are, however, some other objections to be considered.
The claim of Trower was for "the hauling of materials used in the construction of [the] building"; and it is objected, on the supposed authority of Adams v. Burbank, 103 Cal. 646, that he was not entitled to a lien for labor of this kind. The case cited, however, has no application. There the
claimant "was employed by the brick men to haul bricks for them, and he had no connection with the contractor, who owed him no liability. His position [was] not different from that of the laborers who made the brick." But the claimant here was directly employed by Waggoner, as the agent of Mrs. Hutton; and his labor was performed on the building in the same sense as that of the men who lifted the brick from the ground to the upper parts of the building. (Malone v. Big Flat Gravel Min. Co., 76 Cal. 578.)
The claim of Harrison and that of Hubert each contains the statement "that Charlotte A Hutton and Fred Hutton are the names of the owners and reputed owners of said premises"; and it is objected that the latter has no interest, and that the claims are therefore invalid. The statute requires the statement of "the name of the owner or reputed owner, if known." "If the names are not known the claim is sufficient, if it is silent on the subject." (West Coast Lumber Co. v.
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
A rehearing of this cause in Bank was ordered, on the ground, among others, that the work done and materials furnished by the defendants Holt and Chandler were commenced prior to the date of the mortgage of the Continental Building and Loan Association, and not afterward, as stated in the decision heretofore filed. Hence, assuming the claims of these defendants to be valid, a new trial of the case as to them will be unnecessary. This renders necessary an examination of the validity of these claims. At the same time we will consider the other claims, omitting that of the Waggoner Brothers, with reference to which the former opinion will stand.
1. The material objections to the claim of Chandler are, in effect, that Mrs. Hutton is named in the claim as the person by whom he was employed, instead of the contractor, Waggoner, with whom the contract was in fact made; that an undetermined part of the materials furnished by the claimant were not used on the Hutton block, but on another building of the owner; that "the kind of materials furnished" — whether "iron, stone," etc. — is not stated; that the claim fails to "state the price at which either lumber or lime was sold," or that the articles were sold at an agreed price; and, finally, that there was a variance between the claim and the evidence, and between the claim and the finding. None of these objections are well taken; Mrs. Hutton was properly named as the person by whom the claimant was employed. It is expressly provided by the statute that, where the contract is not filed,
the labor and materials "shall be deemed to have been done and furnished at the personal instance of the owner" (Code Civ. Proc., sec. 1184); and there is no objection to the use of this form of statement. (Kellogg v. Howes, 81 Cal. 170.) With regards to the materials furnished the claim unequivocally states that all of them were used upon the building, and, from the stipulation read in evidence, this appears to have been the fact. It was unnecessary to state specifically the kind of materials furnished or the prices of the several items. (Brennan v. Swasey,16 Cal. 1411; Selden v. Meeks, 17 Cal. 129; Davis v. Livingston,29 Cal. 287; Jewell v. McKay, 82 Cal. 150.) The claim is, in effect, a sufficient statement of a special contract to pay for the materials furnished, and and would be sufficient as a complaint in indebitatus assumpsit, or debt. (1 Chitty on Pleading, 350, notes f, g. 351, 352.) Finally, there is no variance between the claim and the evidence or the finding. In the claim the statement is that the materials were to be paid for "in cash within sixty days from time of purchase of the item, and any item not paid for within that time was to bear interest at the rate of ten per cent per annum until paid." The agreed account read in evidence agrees accurately with this; and the finding is precisely to the same effect, except that it omits reference to the rate of interest. This, however, is in effect found in the finding that the claim — which is attached to the complaint, and the filing of which is not denied — "contained . . . . a true statement of [the] demand," etc.
The first of the above objections is made also to the claim of Holt, and what is said with reference to it will be understood as applying to his claim. The remaining objections to the claim are, in effect, that it does not truthfully state the terms of the contract, and that part of the labor was performed, not on the building, but on the adjacent sidewalk. With regard to the former point, the statement of the claim is that at the time of the work there was no agreement as to price, but it was agreed he was to be paid what his labor was reasonably worth; but afterward the sum of four dollars per day was agreed upon by Holt and Waggoner as a reasonable sum; and the statement is sustained by the written certificate
of Waggoner, as foreman, read in evidence. With regard to the other objection, the cement sidewalk must, under the circumstances of the case, be regarded as part of the building.
The claims of Holt and Chandler must, therefore, be regarded as sufficient.
2. The principal objection urged to the other claims is, in effect, that they fail to state, or to state truthfully, "the terms, time given, and conditions of [the] contract."
To simplify the question, it may be observed generally that in some of the claims the time of payment is stated; in others not. In the latter class of cases the presumption of the law is that no time was given. (Hills v. Ohlig, 63 Cal. 104; Jewell v. McKay,supra.) Also it may be stated that in some of the claims it is said that the contract of employment was made with Mrs. Hutton; in others, that it was made with Waggoner, as contractor and agent. But this, as we have held, is to be regarded as immaterial. The question to be considered relates, therefore, to the sufficiency of the statement of the terms of the contract in other respects.
In this regard all that can be required is the statement of the fact that a contract was entered into and such a statement of its terms as to show the indebtedness claimed. These conditions are sufficiently complied with in all the claims. In each of them the making of the contract and the labor performed or materials furnished are stated. In one of them (that of Trower) the labor was to be performed "at the usual rates," which is but another way of saying, "for what it was reasonably worth" (Reed v.Norton, 90 Cal. 596, 597), and its value was accordingly stated. In all the other claims the agreed price is stated, either in the aggregate, or — in the case of labor — the per diem rate and the number of days. In this respect, therefore, the claims are sufficient. There are, however, some other objections to be considered.
The claim of Trower was for "the hauling of materials used in the construction of [the] building"; and it is objected, on the supposed authority of Adams v. Burbank, 103 Cal. 646, that he was not entitled to a lien for labor of this kind. The case cited, however, has no application. There the
claimant "was employed by the brick men to haul bricks for them, and he had no connection with the contractor, who owed him no liability. His position [was] not different from that of the laborers who made the brick." But the claimant here was directly employed by Waggoner, as the agent of Mrs. Hutton; and his labor was performed on the building in the same sense as that of the men who lifted the brick from the ground to the upper parts of the building. (Malone v. Big Flat Gravel Min. Co., 76 Cal. 578.)
The claim of Harrison and that of Hubert each contains the statement "that Charlotte A Hutton and Fred Hutton are the names of the owners and reputed owners of said premises"; and it is objected that the latter has no interest, and that the claims are therefore invalid. The statute requires the statement of "the name of the owner or reputed owner, if known." "If the names are not known the claim is sufficient, if it is silent on the subject." (West Coast Lumber Co. v. Newkirk, 80 Cal. 277.) The claimant "may not know the owner, and if he is ignorant of his name he is not required to state it." (Corbett v. Chambers,109 Cal. 183.) Still less can the validity of the claim be affected by a mistake in attempting to carry out the requirements of the law.
Finally, it is objected to Frick's claim that it does not describe the property "with sufficient certainty for identification." The claim is "for labor and services in the erection and construction of that certain building . . . . now upon that certain lot situate, etc., and described as follows," etc. Then follows a description of the land on which the building was in fact erected; and then the further clause, "together with that certain triangular piece deeded to Charlotte Patton by the trustees of the town of Vacaville, situate on the easterly side of Dobbins street." Possibly the latter clause may be but another description of the land on which the building was erected — which is also "a triangular piece . . . . situate on the easterly side of Dobbins street"; otherwise the clause must be rejected as repugnant to the rest of the document, which unequivocally refers to one building built on one lot, and in fact to the building in question.
The objections to the claims of these defendants — so far as they refer to defects or supposed defects appearing on their face — must, therefore, be regarded as untenable.
With regard to the costs of appeal, they should be apportioned as follows: The costs should be allotted, one-half to the appeals of Mrs. Hutton; one-half to those of the building and loan association; but a single memorandum of costs to be filed by appellants. The former half of the costs should be paid by the respondent and the appellant Chandler in amounts proportionate to their respective claims; the latter by the respondents — excluding the appellant Chandler — in the same proportion; and it is so ordered. But as the transcript on appeal is unnecessarily voluminous by at least a third, only two-thirds of the expense of printing will be allowed in the costs.
Otherwise than as above indicated, we are satisfied with the former decision, which accordingly will be modified by adding thereto the words "except as to the issues raised by the cross-complaints of the defendants I.H. Holt and F.P. Chandler, as to whom the findings will be allowed to stand"; and as thus modified will stand as the decision of this court.
On January 11, 1901, the court modified its judgment as follows:
1 76 Am. Dec. 507.