Richardson & Fisher Co. v. Chicago Bonding & Surety Co.

CONREY, P. J.

The plaintiff appeals from a judgment entered after an order had been made sustaining a general demurrer to the complaint as amended. Plaintiff is a materialman who furnished to the contractor materials which were used in the construction of a building for one Wm. J. Thayer. The action is brought to recove^ upon a bond which was given in conformity with the .provisions of section 1183 of the Code of Civil Procedure as amended in 1911. As required by that section, the bond provides that it “shall inure to the benefit of any and all persons who perform labor upon or furnish materials to be used in the work described in said contract, so as to give such persons a right of action upon this bond in any suit brought to foreclose the liens provided for by the laws of the state of California, or in a separate suit brought on this bond.” The bond further provided “that any suit brought on this bond to recover any claims hereunder must be instituted within the time allowed by law for instituting a suit to enforce a lien claim.” The following provisions from the chapter concerning the enforcement of liens of mechanics and others upon real property, have a bearing

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upon this case: Section 1187 contains the proviso “that all claims of lien must be filed within ninety days after the completion of any building. ...” Section 1190 declares that “no lien provided for in this chapter binds any property for a longer period than ninety days after the same has been filed, unless proceedings be commenced in a proper court within that time to enforce the same.” Section 1187 provides that “every person save the original contractor claiming the benefit of this chapter . . . must file for record with the county recorder of the county or city and county in which such property or some part thereof is situated, a claim of lien containing a statement of his demand after deducting all just credits and offsets,” etc.

The building was completed by the contractor on the first day of September, 1914. The owner accepted the same, but did not at any time file notice of completion in the recorder’s office. The complaint does not allege that the plaintiff ever filed for record in the county recorder’s office, his claim of lien, and therefore it must be assumed that such claim was not filed. This action was not- commenced until the sixteenth day of February, 1915.