Pacific Portland Cement Co. v. Hopkins

SLOSS, J.

Action to foreclose a mechanic’s lien. Plaintiff appeals, on the judgment-roll alone, from a judgment in favor of the defendant owner.

The transaction involved took place in 1909, and our discussion has reference to the mechanic’s lien law as it read prior to the amendments of 1911 to sections 1183 et seq. of the Code of Civil Procedure. By its complaint the plaintiff sought to enforce a lien for $1,535.10, the unpaid balance of the value of certain cement furnished by it to Webster-Mace Construction Company for use in, and used in, a building being erected by said Webster-Mace Company, as contractor, for E. W. Hopkins, as owner. The plaintiff alleged the making and filing for record of a contract between Hopkins and the Webster-Mace company, and the abandonment of the contract and work thereunder by the contractor after partial performance on its part. The complaint sought to make a case under section 1200 of the Code of Civil Procedure, alleging that the value of the work and materials at the time of abandonment, measured by the rule of section 1200, exceeded the sums theretofore paid by the owner under the contract to a sufficient extent to cover plaintiff’s claim. The defendant Hopkins, in his answer, alleged that he had, at the time of abandonment, paid the contractor more than the value of the work and materials then done and furnished. He did not deny the allegation of the complaint that he had made a contract with the Webster-Mace Company for the construction of the building. On the contrary, he alleged affirmatively that such contract had been made in writing, that it had béen filed in the office of the county recorder, and that the contractor had thereafter commenced construction under the contract.

The court found that the plaintiff had furnished the cement as alleged by it, and that the sum of $1,348.65 was due it from the contractor and had not been paid. With regard to the contract between Hopkins and the contractor, the commencement and abandonment of the work and the value of

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the work and materials already done and furnished, estimated by the standard of the whole contract price, the findings-follow the allegations of the answer. It was further found that at the time of the abandonment, the contractor had received from Hopkins under the terms of the contract the sum of $30,643.95, a sum in excess of the value of the work and materials already done and furnished. - There was a finding, in accord with the averments of the answer, that Hopkins had fully complied with all of the terms of the contract on his part. As a conclusion of law the court found that there was no fund in the possession of Hopkins applicable to the payment of plaintiff's alleged lien, and that defendant Hopkins was entitled to judgment for his costs. Judgment was entered accordingly.