Southern California Lumber Co. v. Jones

HAYNES, C.

This appeal is from a judgment against appellants, foreclosing a lien for materials furnished for the construction of a building. C. A. Conant, the contractor, and certain fictitious persons were made defendants, hut no judgment was taken against them.

Mrs. E. S. Jones is the owner of the lot upon which the house was built, and E. W; Jones is her husband, and acted as her agent.

[243]

On August 1,1898, appellants entered into a contract with Conant for the erection of the house, by which Conant agreed to furnish the materials and labor and erect it for the sum of $837, and plaintiff agreed with Conant to furnish, and did furnish, lumber therefor of the value of $470.65, of which sum $389.05 remained unpaid. This lumber was furnished between August 6 and September 15, 1898.

The contract between appellants and Conant was in writing, and provided that the contract price should be paid in installments, as follows: “When lumber is on the lot and frame is up ready for the roof, $200; when roof is on and shingled, $200; when outside is finished, $200; when building is completed, $237,”—payments to be made on certificate of the architect.

On September 16th, Conant abandoned the work in an incomplete condition, and work was not resumed for more than thirty days. The court found that prior to September 16th there was paid to Conant three installments of $200 each, in accordance with the terms of the contract, and that $237 remained unpaid, and that it would cost $89.70 to complete the building. The court also found that on September 27th respondent gave written notice to appellants that it had furnished said lumber, and the value thereof, and, as a conclusion of law, that the amount of the contract price applicable to respondent’s lien is $147.30, and gave judgment for that sum, with an attorney’s fee of $50 and costs.

It was shown without controversy that there was paid to Conant on September 16,1898, $150 in addition to the $600 found by the court to have been paid; but the court ruled that said $150 was paid prematurely, as it was not due under the contract until the building was completed, and should therefore be treated as money in the owner’s hands and applicable to plaintiff’s claim. In this ruling the court erred.