D. I. Nofziger Lumber Co. v. Waters

[90]

SHAW, J.

Plaintiff sues to foreclose two liens (one claimed in its own right and the other as assignee) for materials furnished and used in the construction of a building for defendant Waters. Judgment went for Waters, and plaintiff appeals therefrom on the judgment-roll.

Waters entered into a written contract with one Watkins, a contractor, whereby the latter agreed for the consideration specified in said contract, to be paid in installments as therein provided, to construct for Waters a building upon lot 18 in block 5 of the Hutchinson tract in the city of Los Angeles, California, the cost of which building was upward of one thousand dollars. This contract was duly filed with the county recorder. In form it complied with the provisions of section 1183, Code of Civil Procedure, but through inadvertence and mistake, as found by the court, the description of the property to be affected thereby was erroneously inserted as being lot 18 in block 5, whereas the property owned by Waters so affected, and upon which the building was constructed, was lot 18 in block 4 of said tract.

Plaintiff and its assignor furnished materials to the contractor to be used, and which Avere used, in constructing the building. These materials were not paid for; and thereupon plaintiff and its assignor filed their notices of liens, wherein, in describing the property, they copied the erroneous description contained in said contract and designated the property as being lot 18. in block 5 of said Hutchinson tract.

The court found, among other things, that plaintiff and its assignor, before filing said notices of liens, examined the contract under which the building was constructed and thereby ascertained that such contract described the lot upon which the building was to be constructed as lot 18 in block 5 of said Hutchinson tract; that in response to an inquiry as to the correctness of this description, the architect who prepared the plans for and superintended the erection of the building informed them that such description was correct; that such erroneous description was inserted in said contract and such information given by the said architect through inadvertence and mistake, and not for the purpose of deceiving or defrauding anyone; that in said Hutchinson tract there was at the time a lot numbered 18 and a block numbered 5, also a lot numbered 18, and a block numbered 4,