J. & W. C. Shull v. Brooke

PULLEN, J.,

pro tem.

This is an action to foreclose a mechanic’s lien. Judgment was rendered in favor of the lien claimant, J. & W. C. Shull, a corporation, from which judgment Title Insurance & Trust Company, as trustee, and Golden State Securities Company and Alhambra Plardware Company have appealed.

Defendants W. S. Brooke and Blanche E. Brooke were the owners of a parcel of land in the city of Alhambra, and contemplated the erection of an apartment house thereon. To that end they entered into negotiations with respondents J. & W. C. 'Shull Corporation to furnish certain lumber, doors, hardware, cement and other building materials. On March 27, 1925, respondents J. & W. C. Shull delivered on the job, upon the order of defendant Brooke, certain lumber which was, prior to the recordation of the trust deed hereinafter referred to, actually used in the building of forms for the concrete foundation of the building, amounting to $78.29. Three days later, or on March 30, 1925, a deed of trust in favor of appellants was placed of record. On April 6, 1925, a so-called written contract was entered into between defendants Brooke and respondents, designating certain described lumber which was to be used in the building, which also included the materials previously furnished on March 27, 1925. The list in the so-called contract totaled some $2,740, and in addition thereto there was purchased from respondents, at the reasonable market value, between March 27 and August 1, 1925, an additional amount of building materials to the value of $1,830. The apartments were not constructed under a general contract for their erection, but were being built by Brooke, as owner.

The first question raised by appellants under the foregoing facts is one of priority. They contend that their rights,

[90]

arising under and

by

virtue of the trust deed, are superior to respondents’ as to all material delivered after the date of the recordation of the deed of trust, but inferior to the lien of respondents for all materials delivered by it prior to that date. If the materials furnished or labor performed are under a general contract, then the materialmen and laborers have their liens under the contract, and these liens relate back to the time the building was commenced by the general contractor. On the other hand, as was the situation in the instant ease, when the construction of an improvement is at the instance of an owner, as distinguished from a general contractor, then every person furnishing material for the building does so under a separate and distinct contract, and his lien dates from the time he actually furnished the materials or performed the labor.