N. O. Nelson Mfg. Co. v. Rush

SHAW, J.

The plaintiff appeals from the judgment.

The action is to foreclose a lien claimed by the plaintiff upon the property of T. J. Rush for materials furnished to W. A. Merrick, who was a subcontractor for a plumbing and heating plant installed in an apartment house erected by the Pacific States Investment Company, as original contractor, for T. J. Rush, the owner. The plaintiff is a corporation.

The plaintiff’s claim for the materials amounted to $6,261.95. The court allowed it only $461.95. It is of this reduction that the plaintiff complains. During the progress of the work on Merrick’s subcontract, the principal contractor paid Merrick from time to time sums amounting to seven thousand five hundred dollars on the subcontract price, out of moneys received from the owner. This money Merrick deposited in his general bank account in which he also kept other moneys derived from other sources. By checks drawn on this account he made payments to plaintiff amounting to seven thousand five hundred dollars. At the time each of these checks was drawn he had just received a large sum from the principal contractor as aforesaid, and the balance of his account was not then sufficient to have paid the check without drawing upon the money so received from the principal contractor. At that time he owed other debts to the plaintiff amounting to five thousand eight hundred dollars, but he gave no directions to plaintiff as to the application of these checks. The plaintiff thereupon applied five thousand eight hundred dollars thereof upon the other debts, the result whereof was that there still remained unpaid on the debt for which the lien is claimed, the sum of $6,261.95 as above stated. The court refused to allow this application on the other debts and credited the five thousand eight hundred dollars on the $6,261.95, claimed to be due for the materials furnished to Merrick. The court took the view that by reason of the provisions of the lien law, this application could not lawfully be made. In this it is claimed that the court erred.

[571]

We do not find it necessary to determine the question thus presented. For other reasons about to be stated we are of the opinion that the plaintiff was not entitled to any lien upon the property of Rush for any part of this claim. Section 1184 of the Code of Civil Procedure provides that any of the persons said to be entitled to a lien in section 1183 may give a notice to the owner that they have performed labor or furnished material, or both, to the contractor, for use in the building, or that they have agreed to do so, stating the amount of that done or furnished, or agreed to be done or furnished, and thereupon it proceeds as follows: “And any of the said persons who shall on the written demand of the owner, refuse to give such notice shall thereby deprive himself of the right to claim a lien under this chapter.’’