Hotaling v. Cronise

Appeal from the District Court of the Fourth Judicial District.

Hotaling, Barnstead, and Thomas filed their complaint against Cronise and Hart, December 12th, 1850, averring that during the summer of 1850, the plaintiffs, at the request of Cronise, furnished piles and other materials, and did work, to the amount of $2785, for the erection of a wharf on property then owned by Cronise, on Battery street, between Jackson and Pacific streets, and joining property owned by one Dupease, in San Francisco; that Hart afterwards purchased the property from Cronise, and paid the plaintiffs $1000 on account of said work, and materials; leaving $1785 still due; that, November 12th, 1^50, the plaintiffs caused a lien to be filed and perfected on said property, according to the statute providing for the lien of mechanics and others, and afterwards notified Hart thereof in writing, as required by the statute; that the property was worth more than $1785; and praying judgment for that amount, and for a sale of the premises, and general relief. The defendants answered separately, denying the asserted lien, indebtedness, &c. The cause was tried by the court, the parties waiving a jury. The plaintiffs proved that as partners they furnished the work and materials at the request of Cronise, between September and the 18th of November, 1850; and that on the 12th of November, 1850, they filed in the Recorder’s office a written notice, signed by the plaintiffs, to said Hart and all othersthat pursuant to the statute providing for the lien of mechanics and others, “ we intend to hold a lien, and do hereby establish the same, upon the wharf on Battery street, between Jackson and Pacific streets, in San Francisco, for the sum of §1785.50, which said amount is now due to us for work and labour done and performed, and materials furnished, in building and erecting said wharf, during the summer and fall of 1850. We certify that thirty days have not elapsed since the completion of said work, and we hold said Hart responsible to us for the said sum.” The plaintiffs also proved that Cronise conveyed the property to Hart, October 17th, 1850 ; and that Hart paid the plaintiffs $1000. An objection for variance being made, the plaintiffs were allowed to amend the complaint so as to conform to the proof, by stating the time when the work was done, and the partnership of the plaintiffs. Cronise offered Hart as a witness to prove that the plaintiffs were only sub-contractors, and that the work was done in an unworkmanlike manner, &c.; to which the plaintiffs objected; and the court rejected the witness. Hart then offered Cronise as a witness to prove that nothing was due the plaintiffs; but the court rejected him. The defendants excepted. The court then, on Mart’s motion, dismissed the action as to him, on the ground that the notice of the lien was too vague and uncertain; to which the plaintiffs excepted. The court found for the plaintiffs for $1785 against Cronise ; but that the plaintiffs were not entitled to a lien on the property; and gave judgment accordingly, with costs to Hart. Cronise appealed from the judgment against him: and the plaintiffs appealed from the judgment in favour of Hart, as to the sufficiency of the notice of lien. Both appeals were argued together.