Snell v. Bradbury
Before: Shaw
Synopsis
-Building Contract—Failure to Give Bond—Constitutional law.— The provisions of section 1203 of the Code of Civil Procedure, providing for a bond of the contractor to accompany a building contract, being unconstitutional and void, the failure to file such bond cannot vitiate the contract.
Id.—Statement op Amount in Filed Contract—Memorandum.— Section 1183 of the Code of Civil Procedure does not require that the building contract filed for record shall state the amount to be paid thereunder, nor that it shall show on its face whether that amount is greater or less than one thousand dollars. Such requirement only applies to what is to be inserted in the “memorandum,” which may be filed in case the parties do not choose to file the contract itself.
Id.—Construction op Code—Penal Provision—Constitutional Bight op Contract.—Section 1183 of the Code of Civil Procedure, being highly penal in its character, is not to receive a construction unduly favoring the imposition of a penalty or forfeiture thereunder; and as it deals with the constitutional right of the owner of property to make contracts relating to its use and enjoyment, the restriction of such right can only go to the form of the contract, and cannot be extended by construction beyond what is expressed in the statute, nor can the statute receive such a construction as to infringe the right of contract protected by the constitution.
SHAW, J.
This is an appeal from a judgment in favor of the defendant, given upon an order sustaining a general demurrer to the complaint. The action is to foreclose an alleged lien for materials furnished to a contractor for use in making •additions and repairs to a building of the defendant. The ■complaint is in two counts. The first is based upon the theory that the contract is void because the amount agreed to be
[380]
paid thereunder exceeded one thousand dollars, and the contract, though duly filed for record, and in other respects valid, does not state the total amount to be paid thereunder, nor show on its face whether that amount is greater or less than one thousand dollars. The second is founded on the proposition that the contract is void because the parties did not exact or give any bond, as required by section 1203 of the Code of Civil Procedure.
With respect to the second count, it is only necessary to say that it is now settled by the decisions of this court that the provisions of section 1203 of the Code of Civil Procedure, requiring that a building contract shall be accompanied by a bond, are unconstitutional and void.
(Shaughnessy
v.
American Surety Co.,
138 CaL 543;
Gibbs
v.
Tally,
133 CaL 373.) The statute does not in terms provide that a failure to give the bond as in that section required shall make the contract void and entitle all persons furnishing materials for the building to a lien for the value of the materials furnished, but, if it did so provide, or could be so construed, it would be in that respect inoperative, because the requirement of a bond is beyond the power of the legislature, and the imposition of the penalty, being dependent upon the validity of the provision requiring a bond, would fall with the provision on which it depends.
The decision of the question arising upon the first count of the complaint depends on the construction and effect of a portion of the last sentence "of section 1183 of the Code of Civil Procedure. The sentence, a part thereof to which we shall refer, being put in italics for the sake of clearness, is as follows: “All srph contracts shall be in writing when the amount agreed to be paid thereunder exceeds one thousand dollars, and shall be subscribed by the parties| thereto, and the said contract,
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