Prince v. Hill

The records present an appeal from an order denying the defendants' motion for a new trial.

The plaintiffs sued to foreclose a lien for work done and materials furnished by them to the defendant, Whitcomb, in the erection by Whitcomb of a building upon the land of the defendants, William J. and Isabelle A. Hill. The contract between Whitcomb and the Hills was for more than one thousand dollars and, although in writing, was not recorded. It was therefore void with respect to lien claimants.

The plaintiffs agreed with Whitcomb to do the carpenter work and furnish certain materials for the building for the sum of eight hundred and twenty dollars. It is alleged that certain extra work was done and additional materials furnished, at Whitcomb's request, of the value of $183.66 and that there remains unpaid of these two sums a balance of $217.66. Judgment was given declaring and foreclosing a lien on the land for this amount.

Upon the trial, the court below admitted evidence, over the defendants' objection, tending to show that the value of the materials furnished and work done for Whitcomb by the plaintiffs, upon the building, was greater than the agreed price thereof. In admitting this evidence the court below stated that the plaintiffs were entitled to a lien for the value of such work and materials although such value exceeded the contract price for which they had agreed with Whitcomb to do and furnish the same. In these rulings the court erred. Even with regard to the contract between the owner and the original contractor, the decision in Rebman v. San Gabriel etc. Co., 95 Cal. 395, [30 P. 564], to the effect that the original contractor may recover more than his contract price where such contract is void under the statute, has long been overruled and such recovery is limited to the contract price. (Laidlaw v. Marye, 133 Cal. 176, [65 P. 391]; Marchant v. Hayes, 117 Cal. 669, [49 P. 840]; Sullivan v.California *Page 194 R. Co., 142 Cal. 203, [75 P. 767]; Condon v. Donahue, 160 Cal. 754, [118 P. 113].) Much less should the subcontractor, the validity of whose contract is not in the least affected by the provisions of the Mechanics' Lien Law, recover for a value in excess of his agreement with the original contractor. It has never been so held and the contrary has been decided. (Jewell v.McKay, 82 Cal. 150, [23 P. 139]; Kellogg v. Howes, 81 Cal. 179, [6 L.R.A. 588, 22 P. 509].) In Jewell v. McKay, referring to the provision of section 1183 of the Code of Civil Procedure, that where the original contract is void the labor done and materials furnished upon the building by others than the original contractor "shall be deemed to have been done and furnished at the personal instance of the owner, and they shall have a lienfor the value thereof," the court said: "It cannot possibly have been the intention that a contractor, materialman, or laborer, who agrees for a certain sum, can have a lien for a greater sum upon the ground that the value of what he furnished is greater. . . . We think the word `value' in the above provision is to be construed so as to mean `agreed value' in cases where there is an agreed value." This expresses the true intent of the above provision, as applied to the point in question.