National Lumber Co. v. Kennedy

SHAW, J.

Action to foreclose an alleged lien for materials sold by plaintiff to defendant Miller for use in the construction by him, as contractor, of a building for defendant Kennedy.

Miller made default. Kennedy answered, and upon trial judgment was entered for said defendant. The' appeal is by plaintiff from an order overruling its motion for a new trial.

No record was made of the contract, which was for a sum exceeding one thousand dollars.

Two questions are presented: First, was the lien filed within the time required after the completion of the building, as provided in section 1187, Code of Civil Procedure? If not, did

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the acts and conduct of Kennedy as owner of the building estop him from urging such ground as a defense to the action?

The court found that the building was fully completed on October 15, 1909, but that no notice of its completion was ever at any time filed with the county recorder; that plaintiff’s claim and notice of lien was not filed until March 15, 1910, which was one hundred and fifty-one days after-the completion of the building; that Kennedy did not, between November 3 and November 15, 1909, as alleged in the complaint, or 'at any time, state to plaintiff that said building was not complete according to the plans and specifications; nor is it true that plaintiff delayed filing its claim of lien because of any statements or representations made by Kennedy.

As we understand appellant’s brief, it attacks all of these findings, except that as to defendant’s failure to file a notice of the completion of the building.

That the building was fully complete and occupied on October 15,1909, is conclusively shown by the evidence. The only reason suggested for claiming otherwise is the fact that a skylight put in by the contractor proved defective and later, some time in January, 1910, the defendant’s tenant, being authorized so to do, employed another workman who installed a skylight in place of the one originally put in under the terms of the contract by Miller, the cost of which substituted skylight was, some time in March, paid for by Kennedy.