Schultheiss Bros. Co. v. Hunziker

[74]

JAMES, J.

Several actions brought to enforce liens for labor and material furnished in the erection of a building in the city of San Diego, of which defendant Thayer was the owner, were consolidated and tried together. Certain of the lien claims were allowed and judgment entered thereon and certain of them were disallowed. Defendant Thayer, the owner of the building, appealed from the judgment entered in favor of Sehultheiss Bros. Company. Other appeals were taken by various of the lien claimants who were denied relief, as well as by the defendant Bonding & Surety Company, but dismissals were made by several of the appellants and the only remaining appeals appear to be those of Steinberg, Richardson & Fisher Company, and Thayer, the owner. No argument was presented on behalf of or against Steinberg, and there is, therefore, nothing before the court from which it can be determined that the judgment as to him was in any wise erroneous.

[1]

Attention may be now called to the fact that the appeal is under the alternative method, which requires the parties to print in their briefs such portions of the record as they desire to call to the attention of the court. In examining the matter the court will not, therefore, refer to any portions of the record which are merely indicated as by page of the transcript.

[2]

We will first consider the appeal of the owner Thayer. He states, as evidently was the fact, that as to the judgment in favor of Sehultheiss Bros. Company, the court allowed recovery for an amount which, added to other payments' made, exceeded the total contract price. He insists that by so doing the constitutional guaranty against the impairment of the obligation of contract was violated. In elaboration of this contention he argues that our supreme court, prior to the time of the making of this contract, had held that the legislature could not legally require the owner of a building to respond to a lien claim in an amount exceeding the contract price. He concedes that by comparatively recent decision the supreme court has held that an owner may be required to so respond without there being violated any constitutional right, but insists that the contract was made while the law was as established by the former decisions, and that such adjudications became a part of the law of the state under which the rights of such