Maxwell Hardware Co. v. Foster

CURTIS, J.

Action for the foreclosure of a materialman’s lien for building materials furnished defendant Foster in the construction of a building upon real property belonging to the defendant Kates. The court gave judgment in favor of defendant Kates. The plaintiff has appealed.

[169]

The evidence fails to show that Poster had any authority from Kates to purchase said materials, or to construct said building, or that Kates had any knowledge that the building was being constructed. Without evidence showing that defendant Kates had knowledge of the construction of said building, the real property owned by him and upon which said building was constructed would not be subject to a lien for materials used in its construction. (Code Civ. Proc., sec. 1192.) The judgment, therefore, denying plaintiff a lien upon the property of the defendant Kates was properly entered.

After judgment plaintiff made a motion for a new trial, and among the grounds upon which said motion was based was that of newly discovered evidence. The court denied said motion. That the action of the trial court in denying a motion for a new trial on the ground of newly discovered evidence is a matter largely in the discretion of the trial judge is so well settled in this state that a citation of authority upon the subject is unnecessary. At the hearing of the motion for a new trial the plaintiff presented an affidavit to the effect that Poster had, at the time the materials were furnished him, a lease upon the real property on which the building was constructed and that said lease provided for, or at least contemplated, the making of improvements thereon by Poster. Under these conditions the plaintiff .contends that Kates, the owner of the property, was charged with constructive notice of the making of said improvements. Poster was a witness at the trial of this action on behalf of the plaintiff. He testified to the existence of no such lease, and the trial court may well have concluded that the plaintiff failed to exercise proper diligence in eliciting evidence from Poster regarding the existence of said lease, at the time Poster was being examined by plaintiff at the trial of this action. Under these circumstances we are not warranted in holding that the trial court abused its discretion in denying said motion.