Robinson v. Peardon

[795]

SCHOTTKY, J. pro. tem.

Plaintiffs commenced an action upon a common count for labor and materials furnished to defendants. Judgment was rendered in favor of plaintiffs against defendant Peardon for $810.20 and against defendant McCue for $22. Defendant Peardon has appealed from the judgment.

Appellant, Peardon, is the owner of a building located on Third and Oak Streets, Marysville, California. McCue, the codefendant in the action, was the lessee of the downstairs portion of the building which he operated as a restaurant and bar. The upstairs was retained by the appellant and operated as a rooming house. In 1949 a fire occurred in the restaurant, causing damage to the building in both the leased and retained areas. The respondents did the painting work in the repairing of the premises. The total bill for their work was $2,590.06, of which all but $1,030.20 had been paid. No question is raised as to the reasonableness of the amount.

Appellant contends he, as owner, is not liable personally upon the failure to establish a lien against the premises by one performing work or furnishing materials. Although the principle of law is as stated by appellant, it is not applicable to the instant ease as the court found that the work was performed at the special instance and request of appellant, and the sole question to be determined upon this appeal is whether or not the evidence is sufficient to support that finding.

Appellant’s argument upon the question of the sufficiency of the evidence is but an argument as to the weight of conflicting evidence, and we are bound by the familiar and oft-declared rule that before an appellate tribunal is justified in reversing a judgment for insufficiency of the evidence, it must appear from the record that, accepting the full force of the evidence, together with every inference favorable to the prevailing party which may reasonably be drawn therefrom and excluding all evidence in conflict therewith, it still appears that the law precludes such party from recovering a judgment. Applying this rule to the instant case, we find ample support for the judgment.

There is testimony to the effect that immediately after the fire a conference was held in the alley adjoining the building at which appellant Peardon, respondent J. R. Robinson, McCue, Johnson, an insurance adjuster, and Otto, the general