Taylor v. King

THOMPSON (IRA F.), J.

The plaintiffs were the general contractors for the erection of a building for the defendant Wm. J. King. This action was brought for the purpose of foreclosing a mechanic’s lien for the last payment in the sum of $5,700. Judgment was rendered for the defendants and plaintiffs prosecute this appeal.

[362]

The contract, after stating the times for and the amounts of the first three payments, reads with respect to the final payment as follows:

“4. In payment of five thousand seven hundred 00/100 dollars (5700.00/100) to be paid on the following terms and conditions: One promissory note of $5,700.00/100 due 60 days after completion of building, said $5700.00/100 note secured by 30 Royalty Trust Fund Certificates at $500.00/-100 each and 150 shares of common stock of National Vacant Seat Indicator Company at $100 per share par. Said note and securities to be deposited with R. Bruce Find-' lay, trustee, at American National Bank, Pomona, Cal. Said securities to be sold at their par value. The first $5700.00/100 received by said trustee from the sale of said securities to be used to liquidate $5700.00 note. The sale of said securities to begin at the time the foundation is complete. Sale of said securities shall be prosecuted by W. J. King and associates or assigns, said Royalty Trust Fund Certificates and said common stock to be sold prior to the sale of any other Trust Fund Certificates or common stock, except that which is set aside for the employees.” The trial court has found that after the execution of the agreement “the plaintiffs proceeded with the construction of a building as provided in said written agreement and to completion thereof substantially as in said agreement provided. That said building was completed on the 26th day of January, 1925, and that on said date said William J. King executed and deposited with the plaintiffs a notice of completion thereof and on said last named date executed his said promissory note for $5700.00 and delivered same to plaintiffs and plaintiffs received and accepted same. That plaintiffs understood that such note was not to be executed until the time of the completion of the building. That said note was dated the 26th day of January, 1925, and was due and payable sixty days after the date thereof. That said William J. King did not at that time or at any time deliver to the plaintiffs or to R. Bruce Findlay the securities or any of them as enumerated and described in said written agreement as heretofore set forth.” And also we have before us a finding to the effect that appellants after holding the note for more than thirty - days surrendered it to the respondent King and informed him they would look to the Mechanic’s