McAlpin v. Duncan

Baldwin, J. delivered the opinion of the Court Cope, J. concurring.

A question arises in this case as to the liability of a party making a contract for the building, etc., of a house, with a contractor. The defendant, Tevis, entered into a written contract with the defendant, Duncan, by which Duncan agreed to erect on the lot of Tevis a dwelling house, according to certain plans and specifications, at his own expense, he furnishing all the labor and materials, etc.; and Tevis agreed to pay him $11,850 in installments. This sum, together with other sums due Duncan for extra work, Tevis paid without notice of indebtedness of Duncan to plaintiff and intervenors, for work, etc., and before any notice of lien had been filed. After Tevis had paid Duncan, plaintiff and intervenors filed notices of lien, and now seek in this action to enforce them. The materials were furnished to Duncan, and on his credit in the first place—he assuring the plaintiff of the purpose and use to which they were to be applied. The Court below found for the plaintiff and intervenors. The defendant, Tevis, appealed.

The question presented by the record is, whether the defendant, having paid the contractor in full before notice of the claims of these parties, can be compelled to pay a second time. The Mechanic’s Lien Law was passed in 1856. That law was construed in a case involving the same facts in substance as these here, Knowles v. Joost (13 Cal. 620). In that case, we held that the payment to the principal contractor was good, when made before notice. But the construction of the Act of 1858 was left open; and this is now involved in the present decision. That act is amendatory of the Act of 1856. (See Acts of 1858, 225.) This act is not a little confused and difficult of satisfactory construction. If it were designed to give to the sub-contractor and laborer a lien upon the property of the owner for the entire amount of the last or subcontract, without any regard to the amount of the principal contract, a very curious anomaly would exist, and the whole property of the owner might be placed at the discretion of the contractor, to be encumbered by him as he chose. Such laws, as we have held in this very class of cases, are to be strictly construed, as derogating from the common law. (See Bottomly v. Grace Church, 2 Cal. 90.)

We think all that can be gathered from this act, is that material-men, sub-contractors, etc., have a lien upon the property described in the act to the extent (if so much is necessary) of the contract price of the principal contractor; that these persons must give notice of their claims [128]