Hughes Brothers v. Hoover

GRAY, P. J.

Appeal by the E. K. Wood Lumber Company from a judgment and an order denying a new trial in an action to foreclose a mechanic’s lien.

It appears from the record that the contract between the owner and contractor was valid; that one of its provisions gave to the owner the right, should the contractor neglect to supply a sufficient number of skilled workmen, or materials of the proper quality, or to prosecute the work with promptness and diligence, after three days’ notice, to terminate the employment and complete the work; that the contractor

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making default, the owner gave the notice, and three.days after its service took possession of the building and completed the same; that deducting from the contract price the sum necessarily expended in the completion, and a certain payment made by stipulation, there remained in the owner’s hands on February 1, 1903, the date of completion, $5,953.86. That all of the claims of lien in controversy were filed in time, and actions, either original or by way of cross-complaint to other actions, were commenced within ninety days of the filing thereof, except the claim of appellant, which was commenced ninety-two days after its filing. Appellant’s claim of lien, however, which is stipulated to be true in every respect, disclosed that the materials furnished by appellant were payable in installments during the progress of the work, the last payment to be made within or before thirty-five days from the completion of the building. In one of the original actions brought to foreclose the liens, being case No. 41,412, appellant was not named as a party defendant, but in said action one E. K. Wood, John Doe, and others were named. Appellant answered, alleging that E.

K.

Wood had no interest in the controversy, but that it had, and set up in proper way its claim of lien. This pleading, denominated a cross-complaint, was served upon plaintiff, service acknowledged, and plaintiff entered an appearance thereto; the same was filed in the action, and subsequently all parties stipulated that they should be deemed as having answered thereto. Subsequently, appellant filed an original action, setting up that it had served the statutory notice upon the owner to withhold money under the contract, and upon this it claimed the right to a personal judgment against the owner and contractor. This case, and all of the other cases involving the question of the rights of the various parties to the unpaid balance on the contract, were consolidated and heard together. Upon the hearing the court found that appellant had never commenced any action upon its claim of lien, and apportioned all of the unpaid balance in the hands of the owner among the lien claimants other than appellant; but rendered a personal judgment in favor of appellant against the contractor.