Hughes Manufacturing & Lumber Co. v. Hathaway

[46]

SHAW, J.

The court below sustained a demurrer to the complaint and thereupon gave judgment for the defendant. The plaintiff appeals.

The plaintiff sued to foreclose a lien for the price of certain materials furnished by it to a building contractor to be used in the construction of four buildings upon a lot owned by the defendants, which said contractor had agreed to erect thereon for said owners. The building contract was not recorded in the office of the county recorder. It appears to have been a single contract for the erection of the four buildings.

The buildings were completed on August 7, 1913. On August 16, 1913, the defendants, as owners, filed in the office of the county recorder a notice of completion of said buildings, in accordance with section 1187 of the Code of Civil Procedure. Thirty days thereafter, that is, on September 15, 1913, the plaintiff filed for record in said recorder’s office a claim of lien on said lot for the amount due it from said contractor for said materials.

The court below sustained the demurrer on the ground that the thirty day period of time after completion, allowed for filing claims of lien by a materialman, begins to run upon the date of the completion of the contract under which the materials were furnished, and not upon the date of the filing of the notice of completion thereof, and hence that where the actual completion was on August 7th, a claim of lien filed on September 15th is too late, although it was filed within thirty days from the filing of the notice of completion. The soundness of this theory is the sole question presented for decision. No other objection is made to the complaint. We are of the opinion that the court below was in error.

The portions of section 1187 material to the question are as follows:

“Every person save the original contractor claiming the benefit of this chapter, within thirty days after he has ceased to labor or has ceased to furnish materials, or both; or at his option,

within thirty days after the completion of the original contract,

if any, under which he was employed, must file for record with the county recorder of the county . . . , a claim of lien. . . . Any trivial imperfection in the said work, or in the completion of any contract by any lien claimant, or in the construction of any building, . . . shall not be deemed such a lack of completion as to prevent the filing of any lien;