Niel v. Barton

VAN DYKE, J.

This action was brought to foreclose a materialman’s lien. The trial court found that plaintiff-respondent furnished building materials for improving a dwelling house and constructing a fence about the same upon land owned by appellant Barton; that the materials were furnished at the request of defendant Allen; that more than 10 days prior to the filing of the claim of lien appellant had actual knowledge of the furnishing and use of the materials and of respondent’s claim therefor and did not at any time file or post a notice of nonresponsibility. The answer of appellant Barton alleged that he had no knowledge of the furnishing or use of the materials until within 10 days of the time the lien claim was recorded; that he had in no manner authorized Allen to contract for him. While the trial court did not expressly find on these allegations it is apparent from the findings made that the judgment is based solely upon section 1192 of the Code of Civil Procedure which declares that every improvement and all work made or done with the knowledge of the owner of the property shall be held to have

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been so done or improved at the instance of such owner unless he shall within 10 days after he obtains such knowledge give notice that he will not be responsible therefor. It appears that appellant Barton was at all pertinent times a minor. The court on his petition appointed a guardian ad litem for him.

Appellant advances a number of contentions, but we think it unnecessary to consider any except those based upon appellant’s nonage. Generally speaking, there can be no lien such as was here adjudged upon an infant’s property under a contract made by another person not his guardian and not possessing any authority to bind him (57 C.J.S. “Mechanics’ Liens,” § 64); and although respondent’s complaint, as amended to conform to proof, alleged that the materials here furnished were so furnished at the request of defendant Allen with the knowledge, consent and authority of appellant Barton, yet the trial court only found, as noted, that the materials were furnished at the request of Allen, and as to Barton found only that after learning of their furnishing and use Barton did not disclaim responsibility.

It was held in

Fish