Watson v. Alta Investment Co.

KERRIGAN, J.

This is an action by plaintiff, as assignee ■of Watson Bros., for the foreclosure of a mechanic’s lien as against the Alta Investment Company, and for the recovery of money due on an express contract as against James Crichton.

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The Alta Investment Company entered into a contract with James Crichton, by the terms of which Crichton was to do all the granite and brick-work on a building being erected by said company. Shortly thereafter Crichton entered into a contract with Watson Bros., a copartnership, according to the terms of which they were to carry out and be bound by the agreement between the Alta Investment Company and Crichton, except that they were to receive a bonus of $100 from Crichton. Under these contracts the work was to be paid for as it progressed in four equal installments. After the first two payments had been made the building, through no fault of any of the parties hereto, was entirely destroyed by the calamity of April 18, 1906, which visited San Francisco and vicinity. The third payment was to be made on the completion of the building, and the fourth was to be made thirty-six days thereafter.

If the building was completed prior to its destruction these two payments became obligatory, and judgment should have gone against the defendants.

The contract between the Alta Investment Company and Crichton contained the following provisions:

“Fifth. The owner agrees to pay $13,000 at times and in the manner following, to wit: . . . Third payment three thousand two hundred and fifty ($3,250) dollars when all work is completed and accepted.

“Fourth. Payment, $3,250 thirty-six days after all work is completed and accepted and notice of completion is filed in the office of the County Recorder.

“Provided that when each payment or installment shall become due, and at the final completion of the work, certificates in writing shall be obtained from said architect stating that the payment or installment is due or work completed, as the case may be, . . .

“Twelfth. In ease said work herein provided for should, before completion, be wholly destroyed by fire, defective soil, earthquake or other act of God which the contractor could not have reasonably have foreseen and provided for, then the loss occasioned thereby shall be sustained by the owner to the extent that he has paid installments thereon, or that may be due under the fifth clause of this contract; and the loss occasioned thereby and to be sustained by the contractor shall