Hartwell v. C. Ganahl Lumber Co.

ALLEN, P. J.

Appeal from a judgment and an order denying the motion of appellants for a new trial.

The ease presented is one where plaintiff brought an action against a large number of defendants, each of whom had filed a certain claim of lien against the property of plaintiff,

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requiring them to litigate as to their respective claims to a balance in plaintiff’s hands subject to such liens. It was stipulated that the claims of lien were correct as to the amounts.

The only question presented upon this appeal relates to the validity of a certain building contract entered into between plaintiff and one Parlier for the construction of a certain house. There is appended to the respondent’s brief an opinion filed by Hon. Walter Bordwell, trial judge, in support of his judgment determining that the contract entered into was a valid one. This opinion reflects our views upon the question involved and is adopted as the opinion of this court:

“The plaintiff is the owner of real property upon which the defendant Parlier, as contractor, constructed a dwelling; the other defendants are lien claimants for labor performed, materials furnished, or subcontract work. The plaintiff by this action seeks to have the defendants interplead and desires that the court by its decree divide the amount of money conceded to be due under the contract and which he has deposited in court.

“The plaintiff has offered an instrument from the recorder’s office, purporting to be a contract under which the building was constructed, as evidence that' the provisions of section 1183, Code of Civil Procedure, requiring building contracts over one thousand dollars to be in writing, have been complied with. The defendants object to the offer on the ground that the contract has not been duly executed in that the plans and specifications, although attached to the contract, have not been signed by the parties, as required by the express provisions of the contract. The objections will be overruled for which I give the following reasons:

“The instrument offered consists of three parts all attached, the first part being a builder’s contract in the form commonly used in this vicinity; the second, specifications, and the third, plans. The first part usually called the contract, is signed by both parties; among other things it contains the statement that the contract is to construct ‘a two-story frame residence with basement and attic, said building to be built on lot 176 of Clark & Bryan’s Westmoreland tract.’ Also that the building is to be constructed ‘conformable to the drawings and specifications of even date herewith, made by A. L. Haley, architect, and signed by the parties.’