W. P. Fuller & Co. v. Fleisher

FINLAYSON, P. J.

This is an appeal by the defendants M. Fleisher and M. Fleisher

&

Company from a judgment in favor of plaintiff in an action to enforce a mechanic’s lien.

The complaint alleges that the defendant M. Fleisher & Company, a corporation, entered into a contract with the

[79]

Santa Maria Construction Company, a copartnership, whereby the latter agreed to construct, remodel, and erect for the former a certain one-story business and office building in the city of Santa Maria, Santa Barbara County, and that plaintiff, a corporation having its principal place of business at San Francisco, furnished glass and other material to be used in, and which were used in, the construction, remodeling, and erection of the building. The court found these averments of the complaint to be true. It is contended by appellants that there is no evidence to support the finding that the glass and other material were furnished by plaintiff to be used in this particular building.

In a suit to enforce a materialman’s lien it not only must be alleged and proved by the plaintiff that the material was actually used or consumed in the construction, alteration, addition to or repair of the building, but it also must be averred and proved that the material was furnished by the materialman expressly for that particular building. Upon this proposition the decisions in this state are of one accord, from the early case of

Bottomly

v.

Rector of Grace Church,

2 Cal. 90, to the recent decision of the supreme court in

Ensele

v.

Jolley,

188 Cal. 297 [204 Pac. 1085]. It is not enough that the owner or contractor purchased the material for use in the building on which the lien is

asserted;