W. R. Spalding Lumber Co. v. Fradkin

BARNARD, P. J.

This is an action to foreclose a mechanic’s lien. The controversy grows out of the construction of a house on a 20-acre ranch near Strathmore, which is owned by the defendants Fradkin. The lumber company has its head office in Visalia and has branches in several places in Tulare County, including one at Strathmore. One D. E. Thompson was manager of this branch and his son, the defendant Ernie Thompson, was the contractor who built this house. Five other actions involving other claimants were, by stipulation, tried with this action and one judgment was entered covering all six actions. The appeal has been presented and will be considered as though the Spalding Lumber Company were the only plaintiff.

The house on the Fradkins’ ranch burned down in the fall of 1940. Early in 1941, they started preparations to rebuild and on March 20, 1941, they entered into a written contract with Ernie Thompson, under which he agreed to build the house according to certain plans and specifications for a price of $5,616.50. The Fradkins applied to the Bank of America at Porterville for an F. H. A. loan of $3,600. The loan was approved by the F. H. A. authorities and on May 15, 1941,

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the Fradkins executed to the bank a note for that amount and a trust deed covering the 20-acre ranch, which was recorded on May 20, 1941. Early in June, the manager of this bank suggested to the Fradkins that a faithful performance bond from the contractor should be secured. They took this up with Ernie Thompson and he suggested that he would secure a letter from the plaintiff guaranteeing the completion of the house and that no liens would be filed, in lieu of furnishing a bond. This was satisfactory to the bank and Ernie Thompson secured such a letter from his father, which was delivered to the bank. This letter, dated June 12, 1941, was addressed to the Bank of America at Porterville, and reads as follows:

“Gentlemen:

“This is to advise, that the Harry Fradkin-Job, Ernest Thompson General Contractor, to be built near. Strathmore, Calif, is a W. B. Spalding Lumber Company, in a Bundle Job, and are pleased to have you work with us in this line of handling Home Building’s, and if you will kindly make all Checks covering advances on the Loan, as the Job progresses to W. B. Spalding Lumber Company, and Ernest Thompson, the bills will all be paid through our office, and there will not be any Liens, against this Contract.