Butler v. Ng Chung

THE COURT.

Action to foreclose liens of materialmen and sub-contractors. The court gave the plaintiff, as assignee of the original claimants, a judgment against the owners for $2988.40, with interest, and also for the foreclosure of a lien upon the property for said amount. The said owners appeal from the judgment and from an order denying their motion for a new trial.

The complaint is in six counts, each setting up the claim of one of plaintiff’s assignors. The plaintiff alleged the due execution and filing of a written contract between the appellants, as owners, and the defendants Jordan & Cram, as contractors, for the erection of a four-story and basement brick building for the agreed price of fourteen thousand dollars. It is averred that Jordan & Cram proceeded with the construction of the building until on or about the seventeenth day of April, 1906, when said contract was abandoned, but no notice of

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cessation of labor has ever been filed. The assignors of plaintiff filed their respective claims of lien, and each, during the progress of the work, served upon the owners written notice of the furnishing of materials and the performing of labor, in the amounts claimed. (Code Civ. Proc., sec. 1184.) Bach count alleges, upon information and belief, that at the time of so serving notice, and. at all times since, there was and now is due and unpaid from the owners to the contractors, on account of the contract price, more than five thousand dollars, “which is applicable to the aforesaid claim, and the lien therefor.”

The answers of the owners undertake to deny (although the denial is perhaps insufficient in form), that, at the time of the service of the notices, or thereafter, anything was due from the owners to the contractors. They deny the furnishing of labor or materials by the respective assignors of plaintiff, and allege, affirmatively, that the building was, on the eighteenth day of April, 1906, destroyed by fire. They allege further, that the contract has never been completed, and that no money is due or owing to the original contractors.

The court found that all the allegations of the complaint (except the third count thereof) were true. "With reference to the affirmative matter pleaded, there was a finding “that on the 19th day of April, 1906, a general conflagration took place in the above city and county, by which said building was partially destroyed, without any fault of defendants, but that a material part thereof of the value of $5000 remained intact; that at the time of said fire said building was almost but not entirely completed and had not been accepted, but there was then due to the contractors, Jordan