Hendrickson v. Bertelson

WASTE, C. J.

Appeal from a judgment of the Superior Court of Modoc County foreclosing liens of materialmen, and ordering a sale of real property to satisfy the same.

The defendant Bertelson engaged in the construction of six dwellings upon six adjacent lots in Mountain View subdivision of Alturas. The building operations were to be financed by construction loans advanced by the defendant and appellant, California Mutual Building & Loan Association, secured by trust deeds bn each of the six lots. The

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contracts with the plaintiff and the defendant and cross-complainant Alturas Building Material Company were what are known as “lump sum” contracts, with but one consideration, and the building materials were to be furnished for all six dwellings without separate designations. The building and loan association commenced making advances when it was discovered that deliveries of material to three of the lots had been made, which would have affected the priority of its liens. It thereupon refused to make further advances. To meet this situation, both lien claimants executed waivers of liens as to these three lots, and the construction work thereupon proceeded upon all six houses. Thereafter it became necessary for the materialmen to file liens against the three lots, as to which waivers had not been given, for the unpaid balances due upon the lump sum contracts for the materials furnished. For the reasons hereinafter explained, they could not make separate designations of materials furnished each construction, as required by section 1188 of the Code of Civil Procedure. The plaintiff’s claim was for $249.90, and the cross-complainant’s claim was for $1210.93. No question of value is raised, and no notice of completion was ever filed.

The action having been tried, the court rendered judgment for the full amount of plaintiff’s claim, and costs, and for cross-complainant’s claim, and costs, and decreed that plaintiff and cross-complainant have liens for one-half the amount of their respective claims with costs as against said three lots, apportioning the said amounts in equal portions as against each of said lots. It was decreed that no priority existed in favor of either of said liens, and that the same were prior and superior to all rights of the California Mutual Building & Loan Association, holder of the trust deeds, and that said liens be foreclosed and the lots sold to satisfy the same.