San Pedro Lumber Co. v. Kreis

THE COURT.

This action was brought to foreclose a mechanic’s lien filed by plaintiff on certain real property owned by defendants Isadore Reese and Ida Reese, who will be hereinafter referred to as the appellants.

Appellants entered into a contract with defendants C. W. Kreis & Son pursuant to which the latter constructed a building upon the premises. Following the execution of this contract the plaintiff furnished certain building material, for which the lien was claimed. The complaint alleged that the material was delivered pursuant to an agreement to furnish the quantities required by the contractors, and that the latter promised to pay the reasonable market value thereof; that between November 18, 1924, and February 17,

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1925, lumber and building material were furnished, to be used and the same were actually used in the construction of the building; that the reasonable value thereof was $1810.05, no part of which had been paid, it being alleged, however, that material of the value of $28.80 was returned.

Appellants by their answer alleged that the contractors were to pay plaintiff an agreed price for the building material, and denied that any part of the same was furnished for use or used in the construction of the building. They also denied that any part of the claim remained unpaid.

The court found that lumber and building material of the reasonable value of $1810.05 was furnished by plaintiff to the contractors, and that' the same with the exception of certain material returned, valued at $28.80, was actually used in the construction of the building. A judgment of foreclosure was entered accordingly.

As grounds for the appeal it is contended that the above findings are unsupported; that there was a material variance between the pleadings and the proof, and that the court erred in admitting the claim of lien in evidence.

Certain drivers employed by plaintiff testified to fifteen deliveries of material to the premises the value of which according to the testimony of plaintiff’s shipping clerk, was $539.17. These and other drivers testified to eight other deliveries to the same place, but the record discloses no evidence as to the quantity or value of these deliveries. The shipping clerk further testified to the value of the lumber and material described in nine invoices charged to the contractors and which was shipped to the building to be used therein. The aggregate value of these items was fixed by the witness as $823.70. He also testified that he was never on the premises and had no personal knowledge that any of the lumber or material was delivered there. There was testimony that a sign was placed on the premises stating that plaintiff was furnishing material, and that two of the deliveries first mentioned were received by appellant Ida Eeese. A witness called by appellants estimated the total value of the rough and finished lumber used in the building at the sum of $1306.85, this estimate being based upon prices in 1924 and 1925.