Golden Gate Building Materials Co. v. Fireman

PRESTON, J.

Appeal by defendants Benjamin and Helen Fireman from judgment for plaintiff in an action to foreclose, on certain real property owned by them, a mechanic’s lien for building materials furnished to defendant Sexton, the general contractor employed by his said co-defendants to repair, alter, and add to the building situate on said premises.

The facts as shown by the evidence and found by the court are in substance as follows: That in April, 1925, defendants Fireman, the owners of said real property, employed defendant Sexton to furnish materials and perform labor in plastering a building situate thereon; that while so engaged said defendant Sexton “employed plaintiff to furnish for use, and which actually were used, in said building for the alterations, addition to and repair thereof, materials” consisting of mortar and other plastering materials, and agreed to pay plaintiff $1,232.68, the reasonable value thereof; that plaintiff performed all the conditions of its contract on its part to be performed but said defendants failed to pay any part of said sum, save the amount of $687.60, thus leaving a

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balance of $545.08 due plaintiff. The court further found that although no notice of completion or cessation from labor as provided by section 1187 of the Code of Civil Procedure was filed, said labor was duly completed on June 15, 1925; that defendant as a lien claimant at an expense of $1.70 duly perfected and filed for record its claim of lien. Complaint and summons were not served upon defendant Sexton and he made no appearance in the case. Judgment in accordance with said findings was duly entered for plaintiff for said sums of $545.08, $1.70, interest and costs, which sums the sheriff was directed to pay from the proceeds of sale of said real property and it was further adjudged that in case said property should not sell for enough to satisfy the amount in said decree provided, plaintiff have a deficiency judgment for the balance against defendants Benjamin and Helen Fireman.

Said defendants in prosecuting this appeal urge four grounds for reversal of said judgment, to wit: (1) Admission, over objection, of hearsay evidence as to amount and value of said building materials; (2) Lack of evidence that said materials were used in appellants’ building; (3) Failure of the court to find upon an alleged accord and satisfaction;. (4) Error in directing a deficiency judgment against appellants.