Petaluma Building Materials, Inc. v. Foremost Properties, Inc.

California Court of Appeal Apr 20, 1960 No. Civ. 18563Published

Before: Dooling

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Holding. The court held that a materialman is entitled to a mechanic's lien for materials furnished to an unlicensed subcontractor because the materialman is a member of the class protected by licensing statutes and is not in pari delicto with the unlicensed contractor. Furthermore, the court found that the owner's agreement to issue joint checks prevented the initial payments from discharging the debt.

Issues

Whether a materialman is barred from enforcing a mechanic's lien when the subcontractor who requested the materials is unlicensed.
Whether evidence of an oral agreement regarding joint check payments was sufficient to support the trial court's findings.
Whether the action for a mechanic's lien was properly based on the original obligation to pay for materials.

Disposition. affirmed

Quotations verified verbatim against the opinion

“A material-man’s lien is a “direct lien” (Code Civ. Proc.,§ 1185.1, subd.(a)) created by Constitution and statute”

“A materialman is one of the class to be protected by the requirement that a contractor must have a license and is therefore not in pari delicto with the unlicensed contractor.”

“The question of whether a check is received in payment of a debt is one of fact depending on the intention of the parties”

DOOLING, J.

Petaluma Building Materials, Inc., sued Foremost Properties, Inc., and Pacific Queen Investment Company for $3,936.21, which plaintiff alleged to be the unpaid balance due and owing on a $7,886.21 contract according to the terms of which plaintiff had furnished defendants with materials used in the erection of a work of improvement on real property. Plaintiff further alleged the filing of a claim of lien against said real property and prayed that the above sum be adjudged a lien thereon. Defendants Foremost Prop

[85]

erties, Inc., and Pacific Queen Investment Company answered, admitting their ownership of said property, but alleging payment in full for all materials furnished by plaintiff to their contractor in connection with said property. The court made findings of fact and conclusions of law in accordance with which it ordered that plaintiff have a lien upon said property for the sum of $3,939.51 plus costs with interest, and that the property, or so much thereof as might be necessary, be sold for payment thereof. From this judgment defendants appeal.

On May 22, 1956, Wallock and Bakar, a general contracting firm, entered into a $17,400 contract with Lawrence K. Dayton, doing business as United Painting Company, for the painting and finishing of an apartment house on appellants’ real property. Between June 29 and July 30, 1956, respondent, a building materials dealer, furnished Dayton with $7,886.21 worth of materials which the latter used in connection with this contract.

On June 29, 1956, Wallock and Bakar issued a check in the amount of $3,000, payable jointly to respondent and Dayton. Yern H. Miller, respondent’s agent, testified that on July 2 he had talked by telephone with an unidentified person at Wallock and Bakar, and that during this conversation it had been agreed that if respondent endorsed said check over to Dayton, Wallock and Bakar would make respondent and Dayton copayees on all subsequent checks under this contract.

On the same day respondent did in fact endorse the $3,000 check over to Dayton and did likewise with a similar check dated August 1, 1956, in the amount of $3,500. In addition to these, respondent received two other checks totaling $3,950 from Wallock and Bakar, made out to respondent and Dayton jointly, which it credited to its account. Respondent received no other payment for the aforementioned materials.

Petaluma Building Materials, Inc. v. Foremost Properties, Inc.

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DOOLING, J.

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