Westwood Bldg. Materials Co. v. Valdez

158 Cal.App.2d 107 (1958) WESTWOOD BUILDING MATERIALS COMPANY (a Corporation), Appellant,

v.

EDWARD L. VALDEZ et al., Defendants; IRVING M. LITZ, Respondent.

Civ. No. 22471. California Court of Appeals. Second Dist., Div. Three.

Feb. 28, 1958. George W. Burch, Jr., for Appellant.

Glen Behymer as Amicus Curiae on behalf of Appellant.

Alfred R. Meyers for Respondent. [108]

PATROSSO, J. pro tem. [fn. *]

This is an appeal by plaintiff from a judgment in favor of the defendant Litz in an action to foreclose a mechanic's lien.

There is no dispute with respect to the facts. Defendant Litz, respondent here, as owner entered into a contract with Pelton and Zahler, whereby the latter agreed to construct 21 houses upon a tract owned by respondent. The general contractors in turn entered into a subcontract with defendant Valdez under which the latter agreed to furnish the labor and material necessary to perform all of the plastering and stucco work required under the general contract. Plaintiff, pursuant to an oral contract with Valdez under which the latter agreed to pay for the same by the 10th of the following month, furnished materials required by the subcontractor in the performance of his contract of the reasonable value of $10,637.55. Claiming a balance due thereon of $5,268.49, plaintiff filed a claim of mechanic's lien therefor and instituted this action to enforce the same.

During the course of the performance of the work, respondent paid to Valdez the total sum of $21,500 in full payment of all sums due under his subcontract. Such payment was made by the medium of eight checks of the respondent, the first four being made payable to Valdez alone and the last four being made payable jointly to Valdez and the appellant. The last four checks were in the sums of $2,500, $2,800, $2,000 and $5,580 respectively, and were delivered to Valdez who in turn delivered them to the appellant. The first three of these checks were endorsed by the appellant and by it returned to Valdez who endorsed and obtained payment thereon, no portion thereof being received by the appellant. The check for $5,580 was endorsed by Valdez and delivered to appellant which received payment thereof and in turn issued its check to Valdez for $580, the balance of $5,000 being credited by appellant to Valdez's account. These joint checks bore no endorsement or notation thereon to the effect that the proceeds thereof, insofar as necessary, were to be applied by appellant in payment of Valdez's indebtedness to it, and aside from the fact that the checks were payable jointly to Valdez and appellant, respondent did not communicate to appellant his intention with respect to the application of the proceeds thereof.