Jones v. Kruse

SMITH, C.

The suit was brought to enforce an alleged lien for materials used in the construction of the appellant’s house in the city of San Francisco. Various other claimants of liens were made defendants, and filed their cross-complaints to enforce their several claims. Judgment was entered against Mrs. Kruse in favor of the plaintiff and cross-complainants, and her motion for new trial was after-wards denied. She now appeals from the order denying the motion. Objection is made to each' of the liens on various grounds, and to all of them, except one,-that they were prematurely filed with the recorder,—that is to say, before the completion of the building. The validity of the liens, it will be observed, is to be determined by the provisions of the Code of Civil Procedure, prior to the amendment of section 1187 of March 27, 1897. We will first consider the last objection, with regard to which the case, as presented by the findings and evidence, is as follows:—

The house in question was built by one T. L. Williams, under a written contract between him and Mrs. Kruse, of date September 16, 1896, the contract price being $1,650, payable in four installments, the first three for $400 each, the last for $450. But it was stipulated that the contract and specifications had not been subscribed or recorded as required by section 1183 of the Code of Civil Procedure, and were therefore void; and the finding of the court is to' the same effect. Prior to December, 1896, the work had been so far performed that Williams had been paid the first two install

[615]

ments, aggregating $800. On the seventh day of that month, in consideration of the third payment then claimed by him to be due, he made in writing his release of the contract,— reciting therein his “inability to complete the house.” Thereupon, on the next day, the architect superintending the work certified in writing that there was due to him the sum of $400, exclusive of deductions noted, aggregating $237.50,— thus leaving a balance of $162.50; for which—after deducting a bill of $130 due for millwork to one Meyer—Williams, by his attorneys, executed a receipt.

In connection with this transaction, the architect testified in effect that it was with the consent of Mrs. Kruse, and that he “considered [he] passed her house on the 8th of December; ” which he further explains by saying: “ I passed it; I took it away from the contractor. The contractor discontinued the work the day of this paper, December 7th. When I give that certificate that meant for Mr. Willaims to stop entirely. ... I presumed, then, that' Mr. Williams had no more to do with the building; what else could I do? I think I told you that Mr. Williams had quit work a day or two before I issued the certificate of December 8th.” On this evidence, and some other evidence confirmatory of Mrs. Kruse’s acquiescence in the act, the court found:—