Jarvis v. Frey

WASTE, P. J.

The respondent, Universal Lumber & Mill Company, was a party to and a cross-complainant in a consolidated action to enforce the payment of certain mechanics’ liens. Defendant Frey was the owner, defendant Campbell was the original contractor and cross-defendant, and the cross-defendant and appellant Pacific Surety Company was the surety upon' the contractor’s undertaking, conditioned on the faithful performance by him of his contract, and binding the súrety, if Campbell failed to do so, to pay for any materials or supplies furnished for and in performance of his contract. The trial court denied the Lumber Company relief by reason of certain infirmities in its claim of lien which, it held, rendered it invalid. It likewise denied it judgment against the Surety Company, based upon the same.ground, to wit, the invalidity of the lien. On appeal the supreme court held that “the trial court ruled all too rigidly in holding this lien claim to be invalid.” The judgment appealed from was, therefore, “reversed, and the cause remanded.”

(Jarvis

v.

Frey,

175 Cal. 687, 690, [166 Pac. 997].)

[706]

When the case came on for trial the second time the respondent Lumber Company introduced evidence, both oral and documentary, as to the existence of its lien, the amount and value of the material furnished by it to Campbell, and in support of the amount remaining unpaid. After allowing the introduction of this testimony, the trial court, over the objection of this appellant, held the issue as to the validity of the lien and as to the amount and value, if any, of the materials furnished by the Lumber Company conclusively established, and foreclosed as to all parties, and the Surety Company estopped to offer any evidence thereon, by reason of the findings of fact made in the first trial, which findings the court held to be conclusive as to the facts therein stated.

In keeping with this ruling, the court permitted the cross-defendant Surety Company to introduce testimony in an endeavor to establish a special defense it alleged, by way of a subsequent release of the lien, but denied it the right to dispute the claim of the Lumber Company against its principal, Campbell, the contractor, and its own liability under the lien. New findings were thereupon made, “that all the allegations in the cross-complaint of the cross-complainant Universal Lumber Company are true,” and that there had been no release of the lien. Judgment was entered against the Surety Company for the sum established by the former findings, as the amount of the claim due from the contractor to the Lumber Company.