Perazzi v. Doe Estate Co.

The appeal is from a decree of foreclosure of three contractors' liens against the leasehold interest of appellants in certain premises in San Francisco. The claims of lien sued upon are based upon work performed in the making of alterations and repairs to a portion of the building on said premises, occupied by one J. O. Long as a sublessee of *Page 619 appellants. Mr. Long died on March 31, 1914, while said alterations and repairs were in progress. Upon his death the workmen were withdrawn and all work stopped. The lien claims here involved cover work which was all performed prior to the death of Mr. Long, at his instance and request. [1] Appellants claim that two of these liens were filed prematurely because the contracts upon which they are based had not been completed prior to such filing. The court found that each of the said contracts was completed on March 31, 1914. It is asserted that this finding is unsupported by the evidence, for the reason that the entire alterations and repairs contemplated in the arrangement between Mr. Long and said two respective claimants were not finished at that time. It appears from the evidence that Mr. Long purposed somewhat extensive alterations in the interior arrangements of a market, oyster-stand, and barber-shop which occupied the portion of the building of which he was the lessee; that preparatory to these general alterations he desired to change the location of the barber-shop and oyster-stand, and employed the plaintiffs to perform the plumbing, electrical wiring, and painting necessary for that purpose; that there was no definite price agreed upon nor plan adopted for all these preliminary changes, but that the work was laid out from day to day as it progressed, and plaintiffs followed the instructions given to them from time to time by Mr. Long, or his superintending contractor, as to the manner of its performance. Both of the plaintiffs, to whose claims the objection now under consideration is made, testified that all the work which Mr. Long had requested had been performed prior to his death. This evidence is sufficient to sustain the findings of the trial court that the contracts of these plaintiffs had been completed on March 31, 1914. [2] It further appears that the employees of both plaintiffs were working on the premises at the time of the death, and that all the changes contemplated in the preliminary work had not then been made, but were completed at a later date. In view of the nature of the arrangement between Mr. Long and plaintiffs, it cannot be said that there remained any uncompleted contract between them at the date of the former's death. The evidence last referred to is not necessarily inconsistent with full performance of whatever contracts of the character above indicated were made. *Page 620 [3] The lien of Castagnino Bros. was upon a claim under a contract for painting, which the court found was fully performed on March 31, 1914. The only evidence in the record as to the time of completion of this contract is the testimony of one of the claimants that the work was finished on March 6, 1914. This finding is, therefore, not supported by the evidence. [4] The notice of lien by these claimants was filed for record on May 11, 1914, more than sixty days after the completion of their contract, as fixed by their own testimony. Respondent seeks to sustain this lien on the ground that the owners filed no notice of completion under the provisions of section 1187 of the Code of Civil Procedure, and that, therefore, the claimants had ninety days within which to file their lien. The record is entirely silent as to the filing, or want of filing, of this notice. We have held in the case ofGreely v. Noble, post, p. 628, [181 P. 666], that the burden of alleging and proving the failure of the owner to file this notice is upon the plaintiffs. Having failed to so allege and prove, their lien was too late and should not have been allowed.