L. W. Blinn Lumber Co. v. American Cement Products Co.

CONREY, P. J.

This is an appeal by the defendants ' American Cement Products Company and Henry Braun from an adverse judgment in consolidated lien suits for materials furnished and used in the construction of certain additions to a building. Braun is the owner of the land upon which the building was placed. The American Cement Products Company, as lessee of the land, caused the work to be done. In the complaints, which are identical in form,

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it was alleged that the American Cement Products Company-entered into a contract with the California-Arizona Construction Company whereby the latter Company was to “perform certain improvement work in the way of an addition to the frame and corrugated iron building located upon said property. ” But it was farther alleged that no contract or bond relative to said work was ever filed or recorded. The court found that these allegations were true. It further appeared, and was so found by the court, that the only construction work agreed to be done, or which was done, by the Construction Company consisted in the laying of cement floors; that all of the construction work other than said floors was done by and under the direct supervision of the Products Company ; that by reason of a course of commercial transactions, both present and prospective, between the Products Company and the Construction Company, both companies were interested in having said building additions made in order the better to develop these business enterprises; that under and by reason of these circumstances an agreement was made that the materials entering into the construction of these building additions would be furnished to the Products Company by the Construction Company and paid for in merchandise sold by the Products Company to the Construction Company; that pursuant to these arrangements the materials were ordered from the plaintiffs by the Construction Company and were by the plaintiffs delivered on the leased premises, where they were used in the construction of said building additions. The materials furnished by the plaintiffs consisted of lumber from the Lumber Company and iron and steel materials from the Hardware and Metal Company. We need not detail more fully the. facts proved by the evidence and found by the court. The defendants contended that upon the facts proved it was established that the Construction Company was the materialman who furnished to the owner the materials used in the building; that the plaintiffs were merchants who sold these materials to the materialman (the Construction Company), and that therefore the plaintiffs acquired no right of lien against the improved property on account of materials furnished by them. The plaintiffs, on the other hand, claimed that the circumstances, as shown by the evidence and stated in the findings, were such that it should be held that these materials were in reality furnished directly to