Blythe v. Poultney

By the Court, Currey, C. J.: The plaintiffs brought this action against the defendant Cook to recover certain sums of money alleged to be due for materials furnished him for the construction of certain houses which he had contracted with the defendants Poultney & Smith to build for them on Brannan street, in the City of San Francisco, and for work and labor performed for him by the plaintiffs Freeman & McDonald in and about the building of the same houses; and also to obtain a decree of the Court declaring the plaintiffs’ claims to be liens upon said houses and the land on which they were erected, and further that the premises might be decreed to be sold to satisfy such claims. The action was brought under the Mechanics’ Lien Law of 1862, (Laws 1862, p. 384,) and the rights of the plaintiffs as against Poultney & Smith, if they ever had any, depend upon that law and the existence of the conditions therein prescribed as conditions precedent to the creation of such rights.

On the 12th of April, 186-5, Cook entered into a contract with Poultney & Smith to erect and finish for them on or before the 20th of July then next, certain houses in accordance with certain plans and specifications. By the contract Cook agreed to furnish all the material for the purpose. In consideration of all which, Poultney & Smith contracted to pay him thirteen thousand and fifty dollars. This consideration the parties agreed should be paid by instalments as the work progressed, as follows: Seventy-five per cent of the value of all the work done and materials furnished and attached to the premises (which valuation was to be determined by the architect named) was to be paid to Cook on Saturday of each week, as the work progressed. It was further agreed between the parties that the remaining twenty-five per cent should be paid on or before said 20th of July, or when the building should be completed and accepted by the architect, provided that a certificate should be obtained signed by the architect, stating the amount then due and payable.

[235]Cook entered upon the performance of the work and purchased of the plaintiffs materials for the construction of the houses. On the 12th of August, the houses being unfinished, Cook abandoned the further performance of his agreement, and thereafter Poultney & Smith finished the work. On the day last named the plaintiffs Blythe & Wetherbee caused to be served on Poultney & Smith a notice to the effect that Cook was indebted to them in the sum of five hundred and thirty-eight dollars and ninety cents for lumber and materials furnished by them for the construction of said houses, and stating that the amount specified therein was justly due them over and above all offsets and payments made.