Patten & Davies Lumber Co. v. Hayden

MR. JUSTICE THOMPSON (R. L.) Delivered the Opinion of the Court.

This is an appeal from a judgment foreclosing a mechanic’s lien.

The appellant owned a portion of lot 5, tract 5367, in the city of San Gabriel. H. N. Hayden was awarded a contract to construct a dwelling-house on this lot. Between the dates of October 23 and November 20, 1923, at the request of the contractor the plaintiff furnished lumber and materials which were used in the construction of the building of the reasonable value of $1097.43, no part of which was paid except the sum of $41.14. A sworn claim for lien for the unpaid balance was duly filed and recorded Febru

[104]

ary 11, 1924. March 3, 1924, the owner served upon the plaintiff a written demand for a statement of materials furnished pursuant to section 1184 of the Code of Civil Procedure. On the last-named date an itemized statement was served upon the owner complying in every detail with the provisions of the statute, except that the statement was not verified. In this unverified statement reference was made to the sworn claim of lien which was duly recorded.

The appellant claims that the respondent’s lien was forfeited for failure to verify the statement of materials furnished. Section 1184 of the Code of Civil Procedure provides that a materialman “who shall on the written demand of the owner refuse to give such notice shall thereby deprive himself of- the right to claim a lien”. It is also provided in that section that the statement “must be verified by the claimant”. The same section, however, further provides that “no such notice shall be invalid by reason of any defect in form, provided it is sufficient to inform the owner of the substantial matters herein provided for”.

The omission on the part of the claimant to verify the statement of materials furnished is a mere defect in form which does not necessarily forfeit the right of lien in the absence of notice of the defect or demand for such verification.

(Barker Bros. Inc.

v.

Coates,

211 Cal. 756 [297 Pac. 8].) The purpose of this part of the statute is to furnish the owner with a detailed statement of the items of labor or materials furnished, the person to whom they were supplied and the value thereof. The penalty of forfeiture of the lien is for a