McCray v. Wotkyns

FINLAYSON, P. J.

Plaintiff seeks to enforce a mechanic’s lien on a lot in Los Angeles belonging to defendant Kate B. Wotkyns, for work done in grading and leveling the. lot. The defendant Kate is the • wife of her codefendant Walter, and the land is her separate property. From a judgment decreeing that plaintiff has a lien on the lot, directing its sale by the sheriff and adjudging that plaintiff have a deficiency judgment against both defendants if the lot shall- not sell for enough to satisfy plaintiff’s claim, defendants appeal.

The appeal was taken under the alternative method. Notwithstanding that, where the appeal is so 'taken,' the statute requires the parties to print in their briefs, or in a supplement appended thereto, such portions of the record as they desire to call to the attention of the court (Code Civ. Proc., see. 953c), and the typewritten transcripit of the evidence in the case covers some eighty pages, there is not printed in any of the briefs, or in any supplement thereto, more than the merest modicum of the- evidence.

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However, from a consideration of such of the evidence as is printed, we think the judgment must be reversed, for the reason that it appears therefrom that neither defendant ever made any contract with plaintiff to grade the lot, and that Kate B.- Wotkyns, the owner of the lot, had no knowledge, actual or constructive, that plaintiff had done any work thereon, until some time after the lot had ¡been graded.

From the meager evidence printed in appellants’ brief, which is not controverted by any printed in respondent’s brief, it appears that before he did any work, plaintiff proposed to defendants that he would grade and level the lot for one thousand dollars. This proposal was not accepted. Instead, as plaintiff himself testified, defendantsx told him, in effect, that they would allow him to do the work provided they could borrow the necessary money, and asked him to telephone them the next day, telling him that

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they would then let him know if they could get the money. The next day plaintiff did telephone defendants, but was informed that they were still negotiating for the loan. There is no evidence that the loan was ever effected. From this it is obvious that plaintiff’s proposal was not unconditionally accepted, or squarely assented to, and that, therefore, there never was a binding contract between plaintiff and defendants, or either of them.