Stockton Lumber Co. v. Schuler

SLOSS, J.

Five actions for the foreclosure of mechanics’ liens were consolidated for trial. The building affected by the proceedings was one erected by the defendant Brown, as contractor, upon property owned by the defendant Schuler,

[412]

pursuant to a contract entered, into between them. The plaintiff in each of the five actions proceeded upon the theory that the contract was void. The owner asserted the validity of the contract, and the court found in his favor on this point. As to all the lien claimants except one, a nonsuit was granted on motion of the owner, on the ground that they had failed to prove their right to a lien. The fifth, the Stockton Planing Mills (Buell and Thomas) was found to have a valid lien to the amount of $266.65.

The total contract price agreed to be paid by the owner to the contractor was $2387.00, twenty-five per cent of which, was, by the terms of the contract, made payable thirty-five days after completion. In his answer, the owner offers to pay this twenty-five per cent into court, for the benefit of the parties who may be found entitled to receive it, and it was so paid by him. The court, finding that all other payments due from the owner to the contractor had been made, ordered judgment whereby the claim of Buell and Thomas, the only plaintiffs, who had succeeded in establishing their right to a lien, was directed to be first paid out of the sum paid into court by the owner. The balance of said sum (which was not sufficient to pay off the other claimants in full) was ordered to be applied

pro rata

to the satisfaction of the amounts found to be due such other claimants from the contractor.

The Stockton Lumber Company, plaintiff in one of the consolidated actions, appeals from this judgment and from an order denying its motion for a new trial.

But two points are made. In the first place it is urged that, conceding the correctness of the finding that Buell and Thomas were entitled to a lien, yet that lien could not attach to the money paid into court by the owner, so as to entitle the lien-holders to a priority over claimants who had failed to establish a lien. The argument seems to be that because the code (Code Civ. Proc., sec. 1183) gives a lien upon the “property” upon which labor is bestowed or materials furnished, the benefit of such lien can be had only by a sale of the property, and is lost when the owner releases his property by paying into court the amount for which it is liable. But by the terms of the same section (1183) the lien, in the case of a valid contract, extends to the contract price, and such contract price is the limit of the liability which may be imposed upon