Merced Lumber Co. v. Bruschi

SHAW, J.

This is an action to foreclose a lien for materials furnished by the plaintiff to O. T. McCoon, to be used in the erection of a building on the land of the defendant, Bruschi, in accordance with a contract for such erection made between Bruschi and McCoon. The court below sustained a demurrer to the answer of Bruschi, who refused to answer further and thereupon judgment was given for the plaintiff as prayed for in the complaint. McCoon made default. The defendant, Bruschi, appeals from the judgment.

The contract price for the erection of the building was sixty-seven hundred and fifty dollars. By the terms of the agreement three fourths of this sum was to be paid at stated times during the period of construction and the final payment of one fourth was to be made at the completion of the build- , ing. Section 1184 of the Code of Civil Procedure provides, with respect to such contracts, that “The contract price shall, by the terms of the contract, be made payable in installments at specified times after the commencement of the work, or on the completion of specified portions of the work, or on the completion of the whole work; provided, that at least twenty-five per cent of the whole contract price shall be made payable at least thirty-five days after the final completion of the contract.” And further that “In ease such contracts ... do not conform substantially to the provisions of this section, the labor done and materials furnished by all persons except the contractor shall be deemed to have been done and furnished at the personal instance and request of the person who contracted with the contractor, and they shall have a lien for the value thereof.”

The plaintiff bases his claim of lien on the fact that the contract violates this provision of the code by making the last payment upon the contract price payable at the completion of the building, instead of thirty-five days thereafter, as the code

[374]

requires. As a defense the defendant, Bruschi, alleged that the entire contract price had been paid and that the last payment of one fourth thereof had been paid,

pro rata,

to a number of persons who had performed labor upon the building or furnished materials to the contractor therefor, all of whom were entitled to liens on the premises therefor, and that the plaintiff had received his due proportion with the others.