Meda v. Lawton

THE COURT.

This is an appeal from judgments totaling $11,541.20, rendered in favor of plaintiffs in cases consolidated before trial. The actions were brought to fore

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close mechanics’ liens and to recover personal judgments against the defendants Lawton and National Surety Company. The essential findings are that defendant Gerske engaged defendant Lawton to construct a dwelling-house for him; that defendant National Surety Company executed a bond in the sum of $15,000,. which recited that a written contract had been entered into between the contractor and the owner, and which provided, as required by statute, that it should inure to the benefit of persons performing labor or furnishing material^; that this contract and bond were never filed for record; and that plaintiffs furnished labor and materials for which they were not paid. The court gave judgment for foreclosure of the liens and personally against the contractor and surety company, as prayed. Defendants bring this appeal.

The appeal of defendant Gerske is based upon his own testimony showing that he paid the contractor the full agreed price of $16,000. From this he argues that the court should not have decreed a lien upon the building, but should have permitted recovery only against the contractor and his surety. In support of this position he advances the theory that the statute (sec. 1183, Code Civ. Proc.), as it read prior to 1929, the period during which the transactions took place, provided only for “derivative liens” wherever the owner had paid the contractor in full. 'This is in direct conflict with the language of the statute, stating that they “shall be direct liens, and shall not in the case of any claimants, other than the contractor he limited, as to amount, by any contract price agreed upon between the contractor and the owner except as hereinafter provided”. The section goes on to provide that upon the filing for record of the contract and the contractor’s bond, in proper form, the court must “where it would be equitable to do so” restrict the recovery under the liens to the amount due from the owner to the contractor. Inasmuch as defendant Gerske wholly failed to comply with the statutory requirement of filing the contract and bond for record, his position is groundless.

The appeal of defendant surety company raises a number of points, some of which may be briefly mentioned. It is contended that Gerske and Lawton, who were formerly partners, were acting as principal and agent in this trans