Marshall v. Vallejo Commercial Bank

SLOSS, J.

The plaintiff in his own right, and as assignee of the Coast Electric Company and of J. W. Mitchell, brought this action to foreclose three mechanics’ liens upon the property of defendant Vallejo Commercial Bank in the city of Vallejo.

[471]

On the nineteenth day of August, 1907, the Vallejo Commerr cial Bank, as owner, entered into a written contract with Newton-Sandford Construction Company, as contractor, for the making of certain alterations and additions to a brick building owned by the bank. The contract price was $13,800. The validity of the contract, although questioned by the complaint, was declared by the findings, and is not now disputed.

The plaintiff and his assignors were subcontractors of the Newton-Sandford Company, and filed claims of lien ftir the following amounts: the plaintiff, $2,950; J. N. Mitchell, $393.77, and Coast Electric Company, $223.50. The propriety of these demands, as against the contractor, and the regularity of the steps to claim liens therefor, are not questioned. The only controversy is over the amount due from the owner, Vallejo Commercial Bank, and applicable to the satisfaction of these liens.

It appears that the contractor commenced performance of the contract, and continued until on or about January 28, 1908, when it ceased work. Notice of cessation of labor was duly filed by the owner, which proceeded to complete the work itself. The rule for ascertaining the amount available for liens of persons other than the contractor was, under this state of facts, to be fixed according to the provisions of section 1200 of the Code of Civil Procedure, which, though repealed in 1911 (Stats. 1911, p. 1319), was still in force at the time of the accrual of the rights asserted in this action.

The court found that at the time of the cessation of labor upon the building by the contractor, the value of the work done and materials furnished by the said contractor was the sum of $10,767.34, “estimated according to the standard of the said contract price,” and that at said time there had been paid by the Vallejo Commercial Bank on account of said contract the sum of $8,800.51. Of said amount $892.86 was paid before the dates fixed by the contract for payment and $67.03 of this was paid in excess of progress payments, but all of said $892.86 was paid to subcontractors, materialmen, and laborers having contracts with the Newton-Sandford Construction Company, “and for that reason should now be allowed as a credit to defendant the Vallejo Commercial Bank.” Deducting the sum of $8,800.51 from the sum of $10,767.34, the amount fixed as the value of the materials and labor furnished,