Newell v. Brill

GRAY, P. J.

The plaintiff had judgment herein foreclosing a mechanic’s lien, and the defendant appeals from the same and from an order denying him a new trial.

1. The contract of plaintiff’s assignors, Newell Bros., provided that the firm would do the gas-fitting and the plumbing in the building for $614. The complaint alleges that the Newell Bros, “agreed to do all of the work and furnish all materials necessary to complete the plumbing work in said building, according to the plans agreed upon between said parties,” for an agreed price of $614. The claim of lien recited that the work and materials necessary to do the plumbing work were to.be done and furnished, “according to the plans and specifications agreed upon between said claimants and said William Brill, ’ ’ for $614. It is claimed that there was a material variance between the agreement above quoted on the one hand, and the claim of lien and the complaint on the other. We do not think this claim should be upheld. The mechanic’s lien law is remedial, and should be liberally construed, with a “view to effect its objects and to promote justice.” (Code Civ. Proc., sec. 4.) It may be true that the business of a gas-fitter is something separate and distinct from that of a plumber, and yet it must be admitted that there is a close kinship between the two occupations, so close, in fact, that in reading the complaint, and also the claim of lien, and noting that they both fix the price of the work and materials used in the plumbing at exactly the same figure that both the plumbing and the gas-fitting were to be done for under the

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terms of the contract, and that one firm was doing the whole of this work, it would be difficult to think otherwise than that the word “plumbing,” as used in the lien and complaint, was intended to embrace all the work and materials mentioned in the contract. We do not think any person was, or could be, misled by the omission of the word “gas-fitting,” and therefore are of opinion that this did not constitute a fatal variance, but that there was a substantial compliance with that part of section 1187 of the Code of Civil Procedure, which requires in the claim of lien “a statement of the terms, time given and conditions of his contract.”

2. Nor is there any material variance between the allegations of the complaint and lien, on the one hand, and the contract, on the other, in respect to the extra work and materials to be furnished. At the trial the complaint was amended by striking out the reference to “other materials.” This was done, apparently, for the reason that there was no evidence of any “extra materials” having been furnished. As nothing was allowed in this connection on account of extra materials, and as the variance complained of related only to those extra materials, we can see no force in appellant’s complaint in this regard.