L. W. Blinn Lumber Co. v. Cohn

CONREY, P. J.

On December 5, 1910; the defendant Alice B. Cohn, as owner, and defendant John Rebman, as contractor, signed a document purporting to be a contract for the construction of an apartment building and garage on land of Mrs. Cohn in the city of Los Angeles. The writing provided that the whole of the work to be performed thereunder should be completed by the first day of April, 1911. This was not done, and on the twelfth day of September, 1911, the buildings were not yet completely constructed. The owner took possession and proceeded to complete them, and they were fully and actually completed on the thirtieth day of October, 1911. Pursuant to a contract made with Rebman, the plaintiff furnished lumber to be used and which was used in the construction of those buildings, and on account thereof there became due to the plaintiff the sum of $9,180.61, balance unpaid of the value of the materials thus furnished. The court granted judgment against Rebman for that sum, with interest thereon at seven per cent per annum from October 3, 1911, together with $1.90 for cost of verifying and recording its claim of lien, and its costs of suit herein. Plaintiff’s claim of lien enforceable against the owner’s property was allowed in the sum of only $5,962.65, with costs. The plaintiff has appealed from that part of the judgment which thus limits the extent of its lien.

Appellant claims that the building contract between Mrs. Cohn and Rebman was invalid because it was not in writing as required by law, and that therefore the plaintiff was entitled to have a lien for the full value of the materials furnished by it. The contract, after describing the work to be done, provided as follows: “All of which work shall be done and performed conformable to the drawings and specifications by Messrs. Neher and Skilling, architects, and signed

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by the parties hereto, which are intended to be filed herewith in the office of the county recorder of said Los Angeles county, and which are identified by the signatures of the respective parties hereto.” On December 10, 1910, that document was filed in the recorder’s office of Los Angeles' County, and at the same time there were filed with it three sets of specifications: (1) General specifications referring to the construction of the apartment building in general, but not including any reference to electric wiring or to any garage; (2) specifications for electric wiring; (3) specifications for garage. The general specifications bore the initials of John Rebman, placed by him on each sheet thereof'. They did not have the signature of Mrs. Cohn, except that she wrote her initials, A. B. C., on page 5 thereof. The same initials, A. B. C., were placed on the other sheets of the general specifications by one A. B. Cohn, not the owner Alice B. Cohn, without authority from her and not in her presence. The electric wiring specifications and the garage specifications were neither signed nor initialed by the owner nor by Rebman, but the initials A. B. C. had been placed thereon by the said A. B. Cohn acting under no authority from Alice B. Cohn. At the time when the several specifications were initialed as above stated, they were not attached to the signed contract nor to each other. Afterward they were fastened together, and filed for record by some person other than and in the absence of John Rebman. Rebman did not sign or initial the specifications, except as above stated, and he never examined the same before they were recorded or after they were fastened together or after he signed and initialed the same as above stated.