Hammond Lumber Co. v. Barth Investment Corp.

SEAWELL, J.

The court below gave a default judgment for the plaintiff, Hammond Lumber Company, a corporation, against defendants Barth Investment Corporation, Isaac Barth and A. Barth for $3,041.59, the contract price of building materials furnished and labor performed by

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plaintiff in connection with the construction of a building on premises situate in the city of Los Angeles and owned by defendant Claus Due, but denied the prayer of plaintiff’s complaint that it be adjudged to have a lien upon the said building for said contract price, by virtue of having furnished said materials and labor, and that the court direct the foreclosure of said lien as by law provided. From that portion of the judgment decreeing that plaintiff was without a right of lien it appeals on the judgment-roll alone. The sole question involved is whether plaintiff has lost its right to assert a lien by reason of a failure to file its claim of lien within the ninety-day period following the completion of the building which is allowed in cases where the owner fails to file a notice of completion as required by the law relating to mechanics’ and materialmen’s liens. (Secs. 1183-1203a, Code Civ. Proc.)

All of the facts involved in the case, both ultimate and probative, are set forth in the findings, which are in irreconcilable conflict. By finding VI the court found “that it is true that said building or structure was completed prior to June 1, 1922; that prior to said June 1, 1922, said defendant Claus Due took possession of said building or structure and of said premises and occupied the same and ever since has continued to occupy the same; that no notice of completion of said building or structure has been filed of record.” By finding Vila the court found that the electrical work, which was included in the building contract and described by the plans and specifications, was done or performed in May and June and “was

finished

on the 17th day of June, 1922.” The probative facts found therein as to the necessity of the completion of the electrical work in order to conform with the building plans and specifications and to meet the requirements of the ordinances of the city of Los Angeles are fully set forth. • It is apparent that these facts do not support the ultimate findings that the building was finished or completed prior to June 1, or that the in-completed work may be classified as a trivial imperfection. Finding Vila follows: