Rauer v. Fernando Nelson & Sons

WASTE, P. J.

The defendant, Fernando Nelson

&

Sons, appeals from a judgment in plaintiff’s favor. The action was commenced by the plaintiff to recover the sum of $5,532.10, alleged to be due from the defendants upon a written contract, dated October 16, 1917, whereby Fernando Nelson & Sons and A. E. Buckman agreed to pay to respondent the sum of $680 per month as rental for certain sand machines, cars, rails, and wire used by Buckman in excavating and filling certain property under a contract with appellant. The complaint was in the form usual in actions to foreclose a mechanic’s lien, and prayed that'the amount- sued for be adjudged a lien upon the land of the defendant Nelson. & Sons upon which the work was done by Buckman. After the testimony was in, plaintiff filed an amended complaint to conform to proof, based upon an implied contract for the reasonable rental value of the equipment, and the defendants Fernando Nelson, individually, and A. E. Buckman were dropped from the ease.

Early in 1917, Buckman, as contractor, started the work of excavating and filling blocks and streets of a tract of land of about fifty acres at the west portal of the Twin Peaks tunnel in San Francisco under a contract with Fernando Nelson & Sons, the owner. He agreed to do the work for seventeen cents per yard, and it was provided in the contract that he should, at his own cost, furnish all the materials and equipment necessary to perform his contract. Monthly payments were to be made as the work progressed.

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Shortly after engaging in the work Buekman found himself financially embarrassed, and appellant from that time on paid all the bills with apparent disregard of the stipulation of the contract relating to payments.

The equipment used in the work, consisting of sand machines, cars, wire, rails, and tools, belonged to this respondent, Bauer. Buekman had possession under an agreement of purchase which permitted him to pay for it as he could. In October, Bauer went to Fernando Nelson, the president of appellant, and complained that he was getting no money from Buekman for the outfit. He threatened to take the equipment off the job unless he had some assurance that he would be paid for its use. Nelson insisted that Rauer and Buekman adjust their troubles. Buekman thereupon in writing assigned to Rauer all moneys due or to become due him from Fernando Nelson & Sons for work and labor done, materials furnished, and for grading the property.