Mannix v. Wilson

Mechanic’s Lien—Foreclosure—Plastering—Defense of Unreasonable Delay—Support of Finding.—In an action to enforce a mechanic’s lien against the owner of a building for the plastering done by the plaintiff, where the answer pleads unreasonable delay in the prosecution of the work, by which plaintiff was damaged in the loss of rents, it is held that a finding against such unreasonable delay on plaintiff’s part is sustained by evidence that any delay was caused by others over whom the plaintiff had no control, and that the work was begun as soon as the building was in readiness for lathing and plastering, and was accomplished with diligence thereafter.

Id.—Inadmissible Evidence—Contract and Specifications—Delay of Contractor in Completion of Building.—The contract and specifications were not admissible in such action to foreclose the plasterer’s lien, for the purpose of showing that the contractor was liable to the owner, under the terms of the contract, for all loss and damage resulting from his delay and failure to complete the building within the time designated in the contract, although such contract would be valid as between the contractor and the owner.

Id.—Deduction of Damages to Owner from Last Payment not Allowable Against Lien Claimants — Constitutional Bight Protected.—The right of the owner to deduct stipulated damages as against the contractor cannot be allowed as a deduction from the last payment, to the injury of lien claimants, whose right to liens are guaranteed by the constitution and protected by the legislature, especially as regards payment of such liens out of the last payment of twenty-five per cent of the contract price; and to permit that fund to be sequestered in the interest of the owner as against the contractor would be to deprive lien claimants of their constitutional right to enforce their liens.

Id.—Sequestration of Fund by Notice — Settlement With Contractor at Peril.—Where plaintiff, when there was $7,000 unpaid on the contract served a notice upon the owner to withhold therefrom the full amount of his claim for plastering, pursuant to section 1184 of the Code of Civil Procedure, the owner was thereby required to sequester therefrom sufficient money fully to meet the plaintiff’s demand, and any money that might be necessary to meet any claim of lien which might be filed therefor; and where the owner settled with the contractor without reserving sufficient money to meet the plaintiff’s demand, he did so at his peril.

Id.—Settlement With Contractor Inclusive of All Claims Except Plaintiff’s—Abatement not Allowable.—Where the settlement by the owner with the contractor included a settlement of all claims against the owper, with the exception of the plaintiff’s claim, it must be presumed that the owner was allowed, as against the contractor in such settlement, all that he was entitled to, including all claim he might have for a reduction of the contract price in consequence of delay; and after such full settlement of all other claims the owner cannot urge any abatement of the plaintiff’s claim.