Raisch v. Helfrich

KOFORD, J., pro tem.

This is an appeal from a judgment and decree of the superior court foreclosing a lien for street work done under private contract. Plaintiffs, the contractors, secured the signature of defendant Helfrich to a written contract for the street work. Defendant Helfrich, or at least his wife, was at the time in possession under, a written installment contract of purchase, under

[495]

which the appellant company was selling the lot in question. After obtaining the signature of Helfrich to the street work contract, plaintiffs, at the suggestion of Helfrich, called upon the president and general manager of the appellant company, informing him of the contract with Helfrich and other property owners on the street, and of the nature and kind of the intended street work. The president and manager did not sign the contract, -but expressed himself as pleased, and said, “It was a fine thing to do, to have the street paved with asphalt, and to go ahead and do the work.”

The street work was thereafter done according to the contract, was accepted, and in due time a notice of claim of lien was duly filed of record. Before this action was tried, the purchaser of the lot, Helfrich, defaulted in his payments, and the appellant retook the lot and became the owner thereof.

The action resulted in a judgment against appellant on the theory of the estoppel created by Code of Civil Procedure, section 1192, namely, on account of the owner’s failure to file a notice of nonresponsibility.

[1]

Appellant attacks the judgment on two grounds. First, that there was no evidence that it had knowledge that said work

was being done

at any time, but that the evidence only established that it knew the work was going to be done. The finding on this point is that appellant “had knowledge before, at, and during the course of the performance of the contract.” We think the evidence sufficient. As was said in

Harmon Lumber Co.

v.

Brown,

165 Cal., at page 197, [131 Pac. 368]: “The knowledge which will subject the owner to this burden is not alone actual knowledge. Constructive knowledge, i. e., notice of circumstances which would put a prudent man on inquiry as to the fact in question (Civ. Code, sec. 19), is equally potent to bind the owner” (citing cases).