Hammond Lumber Co. v. Willis

SHAW, J.

This case presents cross-appeals, one by the plaintiffs, the other by the defendant Maryland Casualty Company. The case is a companion case to that of

Roystone Company

v.

Darling,

L. A. No. 4072, decided on December 15, 1915,

ante,

p. 526, [154 Pac. 15]. The respective appeals are from different parts of the judgment.

The plaintiffs began actions to foreclose mechanics’ liens asserted by them, respectively, against the property of the defendant Mertz, for labor and materials furnished by them to the defendant Willis, the contractor, which were used in the erection of buildings on the premises of Mertz in San Bernardino County. One building, a dwelling, was erected under a contract between Mertz and Willis dated October 10, 1911, which was accompanied by a bond executed by Willis and the Maryland Casualty Company to Mertz in the penal

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sum of $1,975, being one-half the contract price, conditioned substantially as required by section 1183 of the Code of Civil Procedure, as amended in 1911. Neither the contract nor the bond were ever filed in the office of the county recorder of the county. The other building was á garage erected on the same lot. No written contract was made concerning it nor was any bond taken from the contractor. The buildings were completed March 16, 1912.

The court found the value of the labor and materials furnished by the plaintiffs, respectively, and the balance due thereon from the contractor, after deducting all payments and other credits. They amounted in all to the sum of $2,137.65, of which $43.67 was for work and materials on the garage. It further found that $2,964 had been paid by Mertz to Willis on the contract price of the dwelling-house during the progress of the work, and that there was still due and unpaid thereon the sum of $986. It thus appears that the amount of the several liens on account of the dwelling-house was $1,107.98, more than the balance remaining unpaid from the owner on the contract price.