National Electric Supply Co. v. Mount Diablo Unified School District

KAUFMAN, P. J.

This action was commenced by National Electric Supply Company, a California corporation, to foreclose a mechanic’s lien, for certain electrical materials allegedly furnished to some of the defendants and used in the construction of a school building for the defendant, Mount Diablo Unified School District. The complaint alleged that about July 15,1954, the Mount Diablo School District, through its duly authorized officer, the defendant, Howard E. Mc-Namer, entered into a written contract with the defendant, E. H. Moore, a licensed general contractor doing business under the name of E. H. Moore and Son, for the construction of a school building. [Moore died on October 30, 1956, and his wife, Florence Moore, was appointed as executrix of his will and substituted in his place in this action. The defendant, General Casualty Company of America, was Moore’s bonding company.] Under the terms of this agreement, Moore agreed to furnish all the labor and materials for the school building. Moore then entered into a written agreement with the defendant, Roscoe P. Trayler, doing business as Trayler Elec

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trie Company, Inc., for the furnishing, supplying and installing of necessary electric and sound equipment in the school building. Thereafter, Trayler, without the knowledge and consent of either the school district or Moore, assigned all of his interest in the above agreement to Trayler Electric Company, a California corporation, under the complete control and dominion of the plaintiff, National Electric Supply Company. As between the plaintiff and Trayler Electric, all of the materials were to be delivered to and paid for by Trayler Electric Company, Inc., but were delivered to R P. Trayler.

The plaintiff supplied materials, equipment and supplies in the sum of $30,145.21. On or about August 24, 1955, the school district accepted the work on the school. On September 18, 1955, plaintiff served a copy of a claim of lien on the school district alleging that it had not been paid for the materials it supplied to Trayler; the complaint in this action was filed on December 1, 1955. Defendant, Roscoe P. Trayler, individually and doing business as Trayler Electric Company, filed a cross-complaint for malicious prosecution against the plaintiff.

On the first day of the trial, it was agreed that since the complaint involved equitable issues and the cross-complaint involved legal issues, the two matters were tried separately as a convenience to the court, counsel, and to simplify proceedings for the jury. Thereafter, pursuant to a stipulation, the complaint which involved equitable issues was to be heard first, and the cross-complaint which involved legal issues was to be heard at a later time if the court’s determination warranted further proceedings.