Finn v. Diamond Laundry Co. (1921) · DecisionDepot

Finn v. Diamond Laundry Co.

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Apr 16, 1921 No. Civ. No. 3298.Published

Before: Shaw

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Holding. The court held that a mechanic's lien is unenforceable when there is a fatal variance between the contract described in the notice of lien and the contract alleged in the complaint. Furthermore, the plaintiff failed to meet the burden of segregating extra work from original contract work, leaving the court to rely on mere conjecture.

Issues

Whether a fatal variance between the notice of lien and the complaint precludes the enforcement of a mechanic's lien.
Whether the plaintiff may recover for 'extra work' when the evidence fails to segregate such work from the original contract work.

Disposition. reversed

Quotations verified verbatim against the opinion

“it follows that the notice of lien filed was untrue; and since no claim of lien upon the contract set forth in the complaint was ever filed, there could be no lien upon which to base the action.”

“In all essential particulars it [the statement] must be true.”

“the court was left to mere conjecture as to the character, extent, and cost, both as to the work done under the original contract and that constituting extras.”

Synopsis

The facts are stated in the opinion of the court.

SHAW, J.

In an action to foreclose a mechanic’s lien plaintiff had judgment, from which defendant has appealed.

The notice of lien filed sets forth two separate and distinct contracts under and in accordance with which plaintiff, as therein stated, performed work and labor in superintending the installation of plumbing fixtures in a building which defendant, as owner, was constructing.

By the complaint each of these contracts is made the subject of a separate cause of action. In the first count thereof it alleged that defendant, through its duly authorized agent, made a contract with plaintiff to superintend the installation of all

“rough plumbing and plumbing proper

in the building of the defendant ... at all times during its construction and until its completion,” which “said plumbing is and shall be known and referred to

[295]

herein as the

original contract work”;

that the building is a laundry building and, in addition to the plumbing and pipe-fitting aforesaid (that is, “rough plumbing and plumbing proper”), has installed in it plumbing fixtures, supply and waste-pipes; system of piping to and from laundry machinery for hot and cold water; for treated and untreated water; high and low pressure steam lines; gas, oil, and compressed-air lines; a vacuum-cleaning system, and a sprinkler system, all of which was to be put in, and was actually put in and installed in, said building of defendant and used by it as and for a laundry; that defendant promised, undertook, and agreed to pay plaintiff for said work as superintendent of the installation of said plumbing proper as aforesaid only, being the original contract work in the aforesaid building, the sum of $600, $575 of which it has paid.

The contract, as stated in the notice of lien, and upon which the cause of action is based, is as follows: That defendant, as owner, was engaged in constructing a building for use as a laundry and, acting through one Joseph H. Smailes as its duly authorized agent, employed plaintiff “as superintendent of plumbing, having complete and entire charge of

Finn v. Diamond Laundry Co.

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Synopsis

SHAW, J.

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