Linder Hardware Co. v. Kelley

HART, Acting P. J.

This is an action for the foreclosure of certain alleged materialmen’s liens for materials furnished defendants, which, it is alleged, were used in the work of improving certain real property. The complaint is in three counts and thus sets forth the alleged claims of three different alleged lien claimants, to wit: W. H. Wilbur (count one), J. M. Dye (count two) and B. S. Gurnee (count three). Each of said alleged lien claimants, so the complaint states, by an instrument in writing, assigned his alleged claim to the plaintiff here, “who is now the owner and holder thereof.” At the trial, the alleged claim of J. M. Dye was abandoned. The court found that the defendants were indebted to the plaintiff in the total sum of $448.45, representing the respective claims of the plaintiff’s assignors, Wilbur and Gurnee, and by its decree adjudged that said total sum constituted “a valid lien on the premises” therein described, and further adjudged that “said premises be sold, or so much thereof as may be necessary to raise the amount due to the plaintiff from said defendants,” etc. A motion for a new trial by the defendants was denied. This appeal is from the judgment.

The record shows that during the month of January, 1925, the defendant Kelley and the defendant Roby entered into a written agreement whereby Kelley agreed to level, check and ditch for Roby one hundred acres of a certain tract of land belonging to the latter, and which is situated in Tulare County. It is averred in each of the counts or causes of action set forth in the complaint that each of the alleged lien claimants, at different times during the progress of the work which said Kelley had agreed to perform for said Roby, “furnished to said Niel Kelley, and which was used feeding the teams employed in doing the

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work done on said land under said contract ... a certain quantity of hay at the agreed price of ($20.00 per ton in the case of Wilbur, of $18.00 per ton in the case of Dye and of $20.00 per ton in the case of Gurnee); that none of said claims has been paid; that on the eighth day of July, 1925, said Wilbur and said Dye, and on the thirteenth day of July, 1925, said Gurnee, each “filed in the office of the County Recorder of said County of Tulare a notice of lien for the purpose of securing and perfecting a lien for the moneys due him as aforesaid, upon the lands hereinbefore described, under the provisions of Chapter 2 of Title IV of the Code of Civil Procedure of the State of California and which lien was on said day recorded in Vol. - at page -, a copy of which lien is hereto attached,” etc.