Jarvis v. Frey

HENSHAW, J.

The appellant, Universal Lumber & Mill Company, was a party to and cross-complainant in a consolidated action to enforce the payment of certain mechanics’ liens. Defendant Frey was the owner, defendant Campbell the original contractor, and defendant and respondent Pacific Surety Company, a corporation, was the surety upon the contractor’s undertaking, conditioned on the faithful performance by him of his contract, and binding the surety, should

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Campbell fail to do so, to pay for any materials or supplies furnished for and in the performance of his contract. The undertaking provided “that all such claims shall be filed as required by section 2 of the act of the legislature approved March 27, 1897, entitled ‘An act to secure the payment of claims of materialmen,’ etc.”

After trial the court made its findings of fact and conclusions of law, denying to this appellant the right to enforce its lien for infirmities which the court found to exist in the lien claim as filed, which infirmities rendered it invalid. It reserved its decision touching the right of this appellant to a judgment against the Pacific Surety Company, defendant and respondent herein. Subsequently it gave its judgment for this respondent and against this appellant, based upon the identical grounds above noted, namely, the invalidity of the lien claims.

The first fatal defect in the lien claim as found by the court lies in the fact “that it does not specify to whom the Universal Lumber & Mill Company furnished the materials, all statements therein referring to the same, being inferential only, and by way of legal conclusion, and that the same does not contain a direct or any statement of the fact as to whom said materials were delivered.” Section 1187 of the Code of Civil Procedure provides that the claim of lien shall contain “the name of the person by whom he was employed, or to whom he furnished the materials, with a statement of the price, if any, agreed upon for the same and when payable.” This lien claim stated that the Universal Lumber & Mill Company “supplied materials to be used and which were actually used in the construction of the building,” which is sufficiently described. It then proceeded to declare “that W. P. Campbell is the name of the contractor who on or about the twentieth day of January, 1911, as such contractor, entered into a contract with said Universal Lumber & Mill Company, under and by which it agreed to furnish to said contractor for said building certain lumber, mill work, and building material, and the following is a statement of the terms, time given, and conditions of said contract, to wit: . . . That the amount of the contract price for such material furnished as aforesaid is $3,739.38 in United States gold coin.” The lien claim then specifies the payments made on account of the contract price and sets forth the remainder