Vanclief, C
This is an appeal by defendant from a judgment of $8,263.24 against it for a balance found to be due the plaintiff for work and labor and materials furnished in building a hotel, a laundry, a gas-house, and for repairing the hotel. The appeal is upon the judgment roll containing a bill of exceptions, raising questions of law and fact.
A distinct written contract was signed and delivered by the parties for the construction of each of the buildings above mentioned, and for the repairing of the hotel, before the work was commenced. The contract price for furnishing materials and building the hotel was $48,900; for the laundry it was $1,100; for the gas-house it was $484; and for repairing the hotel it was $595. None of these contracts was ever filed or recorded in the office of the county recorder of the county in which the buildings are situated. They were made at different times, the contract for the hotel being first in order of time.
The complaint consists of five counts: 1. To recover the reasonable value of the labor and material in building the hotel, alleged to be $53,602.76, less $47,000 paid thereon; 2. To recover the reasonable value of labor and materials in building the laundry, alleged to be $1,100, less $863.50 paid; 3. A special count upon the written contract for building the hotel, to recover a balance of $1,900 alleged to be unpaid; 4. A special count upon the gas-house contract, to recover a balance of $104.06, alleged to be due and unpaid; and 5. A special count upon the written contract for repairing the hotel, to recover an alleged balance of $127.95. The prayer of the complaint is, that plaintiff recover the sum of these several balances, with interest. The complaint is not verified.
The answer of defendant, — 1. Denies each and every [392]*392allegation in the complaint; 2. Alleges payment in full; 3. Alleges, in answer to the first count, that all the labor done and materials furnished for the hotel were done and furnished under and in pursuance of the written contract, and that defendant has fully performed its part of said contract; 4. Alleges, in answer to the second count, that the labor and materials done and furnished for the laundry were done and furnished under a written contract, which defendant had fully performed on its part; 5. In further answer to the third count, alleges that by the contract therein mentioned, the plaintiff was required to complete the hotel by the eighth day of December, 1887, but failed to complete it until April, 1888, by reason whereof defendant sustained damages in the sum of six thousand dollars, which is pleaded as a counterclaim; 6. In answer to the fourth and fifth counts, alleges full performance of the contracts therein mentioned on its part; and 7. Alleges, in answer to the entire complaint, a settlement of all matters mentioned therein, and payment in full of the balance agreed upon in the settlement, which payment was accepted by plaintiff in full satisfaction of all claims against defendant on account of all matters mentioned in the complaint.
The defendant also filed an unverified cross-complaint, claiming damages for non-performance of the written contract for the building of the hotel within the time limited by, or in accordance with, the specifications of that contract, which cross-complaint was answered by a general denial thereof.
The court found for the plaintiff upon all the issues, except those arising upon the third count of the complaint, as to which it found that the hotel contract, upon which that count was based, had not been filed in the recorder’s office, and was therefore void.
1. Counsel for appellant contend that the first count of the complaint does not state facts sufficient to constitute a cause of action, because it does not show that the implied contract, upon which it rests, was filed in the re-[393]*393Border’s office in accordance with section 1183 of the Code of Civil Procedure, although it appears that the amount agreed to be paid thereunder exceeds one thousand dollars.
But the first count does not show that any particular amount was agreed to be paid for the labor and materials expended in building the hotel; but only that such labor and materials “were reasonably worth $53,602.76.” Nor does the code provide for recording an implied contract, even conceding that it would be possible and practicable to record such a contract.
But the real question intended to be presented under this head is expressed by counsel for 'appellant as follows: “ Can parties who have failed to put their contract in writing avoid the force and penalty of the statute by suing on a quantum meruit or quantum valebat? ”
Of course, no party can evade the force or penalty of the statute. Counsel’s question, however, assumes that the statute applies to implied contracts, and that the penalty is incurred by a failure to record an implied contract, and thus evades the only question in dispute, viz.: What are the force and the penalty of the statute?
The statute literally applies only to express contracts stating the mutual obligations of the parties thereto, thereafter to be performed; and requires such contracts to be reduced to writing, and filed in the recorder’s office “before the work is commenced.” Yet no implied contract for labor or materials is complete until after the labor is done or the materials furnished at the request of the owner of the contemplated structure. Neither the mere request of such owner for the performance of labor, or the furnishing of materials, nor the mere performance of labor, or the furnishing of materials without such request, express or implied, constitutes a complete contract by implication. An implied contract arises only from the request of one party and performance by the other, though the request is often inferred from the circumstances attending the performance. It follows that the legislature could not have intended to require implied [394]*394contracts for labor and materials to be written and recorded before the commencement of the work.
Nor does the statute expressly, or by necessary implication, prohibit an action upon such implied contracts, to recover the value of the labor or materials, though such value may exceed one thousand dollars. (See Kiessig v. Allspaugh, 91 Cal. 234.) On the contrary, section 1197 of the chapter on liens seems to except such contracts from the penalty of a failure to record.
“ Sec. 1197. Nothing contained in this chapter shall be construed to impair or affect the right of any person to whom any debt may be due for work done or materials furnished to maintain a personal action to recover such debt against the person liable therefor.”
In Holland v. Wilson, 76 Cal. 434, the complaint was similar to the first count of the complaint in this action; and the answer thereto alleged as a defense “ that the work and materials were done and furnished in pursuance of a written agreement, executed by the defendant and the plaintiff . . . . before the work was commenced.” The plaintiff demurred to this answer, on the ground that the written contract was void because it did not appear to have been recorded, as required by section 1183 of the Code of Civil Procedure. The lower court sustained the demurrer, and gave judgment for plaintiff on the implied contract, and this court affirmed the judgment, on the ground that the written contract was void because not recorded.
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Vanclief, C
This is an appeal by defendant from a judgment of $8,263.24 against it for a balance found to be due the plaintiff for work and labor and materials furnished in building a hotel, a laundry, a gas-house, and for repairing the hotel. The appeal is upon the judgment roll containing a bill of exceptions, raising questions of law and fact.
A distinct written contract was signed and delivered by the parties for the construction of each of the buildings above mentioned, and for the repairing of the hotel, before the work was commenced. The contract price for furnishing materials and building the hotel was $48,900; for the laundry it was $1,100; for the gas-house it was $484; and for repairing the hotel it was $595. None of these contracts was ever filed or recorded in the office of the county recorder of the county in which the buildings are situated. They were made at different times, the contract for the hotel being first in order of time.
The complaint consists of five counts: 1. To recover the reasonable value of the labor and material in building the hotel, alleged to be $53,602.76, less $47,000 paid thereon; 2. To recover the reasonable value of labor and materials in building the laundry, alleged to be $1,100, less $863.50 paid; 3. A special count upon the written contract for building the hotel, to recover a balance of $1,900 alleged to be unpaid; 4. A special count upon the gas-house contract, to recover a balance of $104.06, alleged to be due and unpaid; and 5. A special count upon the written contract for repairing the hotel, to recover an alleged balance of $127.95. The prayer of the complaint is, that plaintiff recover the sum of these several balances, with interest. The complaint is not verified.
The answer of defendant, — 1. Denies each and every [392]*392allegation in the complaint; 2. Alleges payment in full; 3. Alleges, in answer to the first count, that all the labor done and materials furnished for the hotel were done and furnished under and in pursuance of the written contract, and that defendant has fully performed its part of said contract; 4. Alleges, in answer to the second count, that the labor and materials done and furnished for the laundry were done and furnished under a written contract, which defendant had fully performed on its part; 5. In further answer to the third count, alleges that by the contract therein mentioned, the plaintiff was required to complete the hotel by the eighth day of December, 1887, but failed to complete it until April, 1888, by reason whereof defendant sustained damages in the sum of six thousand dollars, which is pleaded as a counterclaim; 6. In answer to the fourth and fifth counts, alleges full performance of the contracts therein mentioned on its part; and 7. Alleges, in answer to the entire complaint, a settlement of all matters mentioned therein, and payment in full of the balance agreed upon in the settlement, which payment was accepted by plaintiff in full satisfaction of all claims against defendant on account of all matters mentioned in the complaint.
The defendant also filed an unverified cross-complaint, claiming damages for non-performance of the written contract for the building of the hotel within the time limited by, or in accordance with, the specifications of that contract, which cross-complaint was answered by a general denial thereof.
The court found for the plaintiff upon all the issues, except those arising upon the third count of the complaint, as to which it found that the hotel contract, upon which that count was based, had not been filed in the recorder’s office, and was therefore void.
1. Counsel for appellant contend that the first count of the complaint does not state facts sufficient to constitute a cause of action, because it does not show that the implied contract, upon which it rests, was filed in the re-[393]*393Border’s office in accordance with section 1183 of the Code of Civil Procedure, although it appears that the amount agreed to be paid thereunder exceeds one thousand dollars.
But the first count does not show that any particular amount was agreed to be paid for the labor and materials expended in building the hotel; but only that such labor and materials “were reasonably worth $53,602.76.” Nor does the code provide for recording an implied contract, even conceding that it would be possible and practicable to record such a contract.
But the real question intended to be presented under this head is expressed by counsel for 'appellant as follows: “ Can parties who have failed to put their contract in writing avoid the force and penalty of the statute by suing on a quantum meruit or quantum valebat? ”
Of course, no party can evade the force or penalty of the statute. Counsel’s question, however, assumes that the statute applies to implied contracts, and that the penalty is incurred by a failure to record an implied contract, and thus evades the only question in dispute, viz.: What are the force and the penalty of the statute?
The statute literally applies only to express contracts stating the mutual obligations of the parties thereto, thereafter to be performed; and requires such contracts to be reduced to writing, and filed in the recorder’s office “before the work is commenced.” Yet no implied contract for labor or materials is complete until after the labor is done or the materials furnished at the request of the owner of the contemplated structure. Neither the mere request of such owner for the performance of labor, or the furnishing of materials, nor the mere performance of labor, or the furnishing of materials without such request, express or implied, constitutes a complete contract by implication. An implied contract arises only from the request of one party and performance by the other, though the request is often inferred from the circumstances attending the performance. It follows that the legislature could not have intended to require implied [394]*394contracts for labor and materials to be written and recorded before the commencement of the work.
Nor does the statute expressly, or by necessary implication, prohibit an action upon such implied contracts, to recover the value of the labor or materials, though such value may exceed one thousand dollars. (See Kiessig v. Allspaugh, 91 Cal. 234.) On the contrary, section 1197 of the chapter on liens seems to except such contracts from the penalty of a failure to record.
“ Sec. 1197. Nothing contained in this chapter shall be construed to impair or affect the right of any person to whom any debt may be due for work done or materials furnished to maintain a personal action to recover such debt against the person liable therefor.”
In Holland v. Wilson, 76 Cal. 434, the complaint was similar to the first count of the complaint in this action; and the answer thereto alleged as a defense “ that the work and materials were done and furnished in pursuance of a written agreement, executed by the defendant and the plaintiff . . . . before the work was commenced.” The plaintiff demurred to this answer, on the ground that the written contract was void because it did not appear to have been recorded, as required by section 1183 of the Code of Civil Procedure. The lower court sustained the demurrer, and gave judgment for plaintiff on the implied contract, and this court affirmed the judgment, on the ground that the written contract was void because not recorded. Yet on the theory of counsel for appellant in this action, the answer to which the demurrer was sustained was a perfect defense to that action, though the written contract pleaded had not been recorded. If the theory of the appellant here is correct, the demurrer to the answer in the case cited should have been overruled, and the plaintiff therein should not have been permitted, as he was, to “avoid the force and penalty of the statute, by suing upon a quantum valebat count.” (See dictum in Palmer v. White, 70 Cal. 220.)
2. The second count is like the first, and is objected [395]*395to upon the same grounds, and therefore needs no additional consideration.
3. It is claimed for appellant that the third count, which is a special count upon the written contract, does not state a cause of action, because that contract was not recorded. But the trial court sustained this point, and plaintiff recovered nothing upon that count, and claims nothing upon it here.
4. Counsel for appellant contend, that, conceding the hotel contract to be void because not recorded, nevertheless it should have been received as conclusive evidence of the value of the labor done and materials furnished by plaintiff in the building of the hotel; and therefore that the evidence did not justify the court in finding, as it did, that the reasonable value of such labor and materials was greater than the price stated in that contract.
This means that the written contract, though not recorded, is not entirely void, but obligatory upon the parties in at least one important respect.
I think this point cannot be maintained. The question involved relates merely to the construction of section 1183 of the Code of Civil Procedure, and has been expressly and specifically decided by this court adversely to the contention of appellant. (Kellogg v. Howes, 81 Cal. 170; Schallert-Ganahl L. Co. v. Neal, 90 Cal. 214; Willamette S. M. Co. v. Los Angeles College Co., 94 Cal. 229; Holland v. Wilson, 76 Cal. 434.)
In Willamette S. M. Co. v. Los Angeles College Co., 94 Cal. 229, it is said that the effect of failing to record a building contract “was to render the contract ‘wholly void ’ for all purposes. It cannot be the basis of a recovery by the contractor against the owner, nor can it be looked to for the purpose of determining the amount for which the owner is liable, or when any payment is to be made.....If the contract is ‘ wholly void/ there is neither a * contract ’ nor an ‘ original contractor/ . . . . Inasmuch as by a failure to file the contract in the recorder’s office it became wholly void, it was not [396]*396available as a defense for any purpose, either to determine the amount of the contract price, or to limit the liability of the appellant, or as a foundation of a right to complete the building according to its terms.” And all this seems to be fairly deducible from the other cases, above cited.
But even conceding that the void contract is merely competent evidence, tending to prove the value of the labor and materials, but not conclusive, its effect was only to create a conflict with other evidence tending to support the finding in question, and quite sufficient to justify it, by the rule here applicable.
5. The point that there is no finding upon the issue as to whether the labor was done and the materials furnished under and in pursuance of the alleged written contract is not well taken. The finding that the alleged contract — the only contract relied upon by defendant — never had been recorded, and was therefore wholly void, is equivalent to a finding that there was no written contract; from which it necessarily follows that no labor or materials could have been done or furnished under such contract, and that no defense to this action can be based upon it. This conclusion is not affected by the facts that a writing, corresponding in form to the alleged contract, had been signed and delivered by the parties, and that the labor may have been done and materials furnished in accordance with the terms of that paper. But in this connection, it is to be observed that if defendant’s cross-complaint is true, the labor was not'done according to that contract.
6. The evidence is sufficient to justify the seventh finding, to the effect that the parties had no settlement of any of the matters mentioned in the complaint, and that plaintiff did not receive any sum or sums of money paid him, in full satisfaction of any of his demands.
7. The issues arising upon defendant’s counterclaim and cross-complaint are completely disposed of by the finding that the alleged written contract, upon breaches of which they solely depend, was void because not filed [397]*397in the recorder’s office. (Holland v. Wilson, 76 Cal. 434.) Besides, the court did find that the delay in completing the work, complained of in the cross-complaint, was not attributable to any default of the plaintiff.
Other points are made by appellant, but those of them to which an answer may not be found under the foregoing heads require no special consideration.
I think the judgment should be affirmed.
Belcher, C., and Foote, C., concurred.
For the reasons given in the foregoing opinion, the judgment is affirmed.
De Haven, J., Sharpstein, J., McFarland, J.
Hearing in Bank denied.
Beatty, C. J., dissented from the order denying a hearing in Bank.