Pacific Sash & Door Co. v. Bumiller

SHAW, J.

This is an appeal from an order denying the defendants’ motion for a new trial. The record shows that four separate actions to enforce laborers and materialmen’s liens upon a building were consolidated and tried together, as provided in section 1195 of the Code of Civil Procedure. The respective plaintiffs were Pacific S'ash & Door Company, Woodill-Hulse Electric Company, Union Iron Works of Los Angeles, and E. J. Johnston. The liens were asserted against the property in Los Angeles known as the Bumiller Building, owned by A. W. Bumiller, Edna B. Sullivan, and Stella B. Burks. The materials and labor were furnished and performed at the instance of one Floyd Thompson, who at the

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time occupied the basement and first three floors of the building under a sub-lease from a lessee of the owners. The materials and labor were furnished and performed in the mating of certain alterations in the building so as to adapt the same for use as a theatre. It consisted in putting in a balcony, the front part of which was supported by an iron beam extending across the room and fixed in the walls, and the erection of a stage with the necessary fixtures and adjuncts therefor, and other structures not necessary to mention. Prior to the alterations, the first floor, in which the principal part of the alterations was made, was an open storeroom without partitions or interior walls, and with the usual columns and girders to support the building. The owners were aware of the mating of the alterations and of the use of the materials and labor therein. They posted no notice disclaiming responsibility, as it is provided in section 1192 of the Code of Civil Procedure that they could have done if they had wished their interest in the building to be exempted from any lien therefor.

1. The defendants offered to prove that after the alterations had been made the structures composing them were all removed from the building prior to the filing of any liens against it. The court ruled, refusing to allow this evidence. This is assigned as error. The same witness, however, afterwards testified to the actual date of such removal, showing that it was after the liens were filed. The evidence further shows that the building as altered was used as a theatre for a considerable time after the alterations were completed. If the ruling upon the question as to the date of removal was error, it is cured by this testimony. However, we know of no statute or decision declaring that the removal of an alteration to a building after it is completed and used, destroys the lien which the statute gives to persons furnishing materials or labor for such alteration, even if such removal is made before the filing of the lien. If the materials are actually used in and the work is actually done upon the alteration, and the change made is of such a character that it comes within the terms of the statute giving a lien for alterations upon a building, and it is completed and put to use as altered, we are of the opinion that the lien cannot be defeated by a subsequent removal of that portion of the building comprising the alterations and the restoration of the building to its original state.