Nelson v. Hoge

LANGDON, P. J.

This is an appeal from a judgment for the plaintiff in an action to foreclose a mechanic’s lien upon property owned by the defendant Hoge. The defendant, Bank of Yolo, is the mortgagee of the property, and as its rights were fully protected by the judgment of the trial court, it is not a party to this appeal.

The plaintiff is a general contractor who constructed for the defendant, under a written contract, an apartment house in Oakland. Payments were made by the defendant, from time to time, according to the terms of said contract, as the building operations progressed. On October 28, 1918, defendant accepted said building, and on October 29, 1918, made the completion payment to the plaintiff and recorded notice of completion in the office of the county recorder. According to the terms of the contract between the parties, the final payment of the balance of $7,173.75 due upon the contract price of the building was to be made thirty-five days after acceptance, i. e., on December 3, 1918. Defendant failed and refused to make said final payment, and on December 17, 1918, plaintiff filed for record his claim of lien; and later commenced this action to enforce the same.

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We shall consider, first, appellant’s objection that the lien was not filed in time. This objection is based upon the finding of the court that the building was “on the 4th day of October, 1918, practically and substantially completed and ready for occupancy and was ■ thereafter and to-wit, on the 29th day of October, 1918, and from that time forward, actually occupied by said defendant Hoge.” The building was actually accepted on October 28th, and notice of completion filed for record on October 29th. Claim of lien was filed December 17, 1918, which was well within the time allowed if computation be made from October 29th, but would be too late if computation be made from October 4th. It has been expressly decided in the case of

Hughes Mfg.

Co. v. Hathaway, 174 Cal. 44, [161 Pac. 1159], that the time allowed a materialman within which to file his claim of lien begins to run from the date of the filing of

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the notice of completion. (See, also,