Eureka Mill & Lumber Co. v. Andres

LENNON, P. J.

This is an action to foreclose certain mechanics’ liens upon real property owned by the defendant. Judgment was rendered and entered for the plaintiffs, to the effect that the amount of their respective claims of lien should be prorated out of the sum of five hundred and fifty dollars, which the" trial court found was the contract price for the erection of a dwelling-house pursuant to the terms of a written contract. Plaintiffs, being dissatisfied with the judgment, have appealed.

Originally there were two independent actions instituted for the foreclosure of the liens in controversy, which for the purpose of trial were consolidated.

The causes of action sued upon arose primarily out of the execution of the following contract:

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“The undersigned, W. H. Shaffer, agrees to construct a replica of a three-room bungalow on 14th Street, Oakland, on what is known as the Y. M. C. A. property, excepting as follows: the painting inside and out, the sewer; the same to be constructed on Jones Street, Oakland, for the sum of $550, and paid for upon conclusion of this agreement or contract.

“Signed this 14th day of July, 1910.

“ (signed) W. H. Shaffer.

“ “ Jennie E. Andres. ”

In the court below it was the plaintiffs ’ contention that this contract was abrogated by an executed parol agreement providing for the erection of a different building, the cost of which, it was claimed, exceeded the sum of one thousand dollars, and that, as no memorandum of the latter contract was ever filed or recorded, judgment should have been directed, foreclosing the liens upon the property for their full amount. Upon the evidence adduced at the trial, the lower court, in its findings of fact, declared that the written contract was the only one entered into between the parties; and deduced the conclusion of law therefrom that the several lien claimants were limited in their recovery to the contract price therein stated. Counsel for plaintiffs attacks this finding as being contrary to the evidence, and inconsistent with and repugnant to other material findings.