H & L Supply, Inc. v. Ewing

STONE, J.

This appeal is from a judgment entered following the granting of a motion for nonsuit. Findings of fact and conclusions of law were filed pursuant to Code of Civil Procedure section 631.8.

Appellant, a materialman, furnished air-conditioning and heating equipment to Chapin Sheet Metal Company, a subcontractor under the general contractor, Gannon Construction Company, that erected a building on property belonging to respondents, Jack C. Ewing and Hazel E. Ewing, his wife. The record indicates that the Ewings paid the general contractor, Gannon Construction, who, in turn, paid Chapin Sheet Metal Company for the air-conditioning. Apparently Chapin paid appellant the money obtained from Gannon without specifying which job the money covered, and appellant applied the payments to accounts other than the Ewing

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job, accounts between Chapin and appellant that were long overdue. Chapin thereafter filed in bankruptcy.

Herman Pitts, president and sole stockholder of appellant corporation, prepared a pre-lien notice covering material furnished Chapin for the Ewing job, which he directed an employee to serve. The relevancy of the pre-lien notice lies in appellant’s contention that it remedies defects in its mechanic’s lien claim.

Code of Civil Procedure section 1193.1, subdivision (j), requires that a claim of lien “. . . shall contain the following : (1) a statement of his demand after deducting all just credits and offsets; (2) the name of the owner or reputed owner, if known; (3) a general statement of the kind of work done or materials furnished by him, or both; (4) the name of the person by whom he was employed or to whom he furnished the materials; (5) a description of the property sought to be charged with the lien sufficient for identification. ’ ’

Mr. Pitts obtained a mechanic’s lien form such as those sold in stationery stores, and prepared and filed a mechanic’s lien on behalf of appellant. The property to be liened was described as “Ptn. of NE % of Section 3, 30-27, as per Map recorded in Book 3752 at Page 485 of Hall of Records of Kern County, California.” No street number was given, and it would be difficult to determine what part of the 160 acres was being liened without knowing the name of the owner. But Mr. Pitts failed to insert the name of the owner of the property in the claim of lien, leaving blank the space provided for that purpose. Thus the indefinite description of the property cannot be cured by reference to the name of the owner. No doubt the practice of clarifying ambiguous property descriptions through ownership records is one reason why the Legislature did not designate omission of the owner’s name in a claim of lien as a mistake or error that does not invalidate the lien. (Code Civ. Proc., § 1196.1.) For these reasons the case does not come within the rationale of the