Rodeffer Industries, Inc. v. Chambers Estates, Inc.

KERRIGAN, Acting P. J.

Plaintiff is a concrete supplier who furnished materials to 146 lots in two Riverside County tracts owned and developed by the defendant as a residential subdivision. Defendant’s general con/traetor retained Harvey Concrete, a corporation, for the purpose of installing rough concrete in the units. Between May 10 and July 17, 1964, plaintiff supplied Harvey with materials'for-the project. Harvey failed to pay plaintiff- for the total concrete furnished on this particular job, and plaintiff recorded a mechanic’s lien upon both tracts for the balance due.

The defendant-owner financed the construction through a loan agreement with Columbia Savings & Loan' Association. As work progressed, defendant would authorize its lender to issue checks to its contractor, subcontractors and materialmen by use of written vouchers. In this case, defendant directed Columbia to issue two checks made payable to Harvey and plaintiff for labor and materials.

The first joint check is dated July 1, 1964, in the sum of $9,327.60, and is supported by defendant’s voucher bearing the same date. The voucher expressly states that it is to be for payment of labor, and/or materials furnished to. 15. specifically designated lots situated in the two tracts. ■ --

- The second; cheek' is dated-July.' 16-, ..1964, in the-snmvof $6,545.76, This-cheek-is based, on two writtém v'o.iiehers: dated July 8, 1964 and July 14, 1964. These vouchers expressly provide that they represent payment of labor and/or materials

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furnished to 18 specifically designated lots situated in defendant’s tracts.

The 15 lots designated in the voucher dated July 1 are different and distinct lots from the 18 lots designated in the two later vouchers.

From the cheek of July 1, 1964, the plain tiff-materialman applied $4,867.20 against sums then due it and turned over $4,460.40 to the subcontractor-Harvey.

The check of July 16, 1964, was distributed as follows: plaintiff applied $3,951.99 against sums due it and returned $2,593.77 to Harvey.

Plaintiff’s controller testified that when a joint cheek was received from Columbia Savings, a representative of the subcontractor and an official of plaintiff would confer, examine the check, determine the material owed for from invoices and billings covered by the check, and then divide the check in accordance with such determination. The two checks of July 1 and July 16 totaled $15,873.36. Of this sum, $7,054.17 was distributed to Harvey, and the balance of $8,819.19 was credited directly against sums due plaintiff.