Dingley v. Greene

Department No. 1, McKee, J.; This is a suit which includes several actions consolidated into one, to recover judgment against the defendant McMeekan for the sum of $4,784.71, and to enforce mechanics’ liens as security for its payment, upon the premises described in the complaint as the property of the defendant Greene.

It appears by the record, that on the 22nd day of September, 1875, the defendant McMeekan made a contract with his co-defendant Greene to build for her several houses upon her land in the city of San Francisco for the sum of $24,000, payable in nine installments, from time to time, as the work progressed; and it was part of the contract that the houses were to be completed on or before the 11th day of February, 1876; that McMeekan was to furnish all labor and material necessary and proper to finish the work, and if he failed to complete the buildings within the time stipulated, he was to forfeit $35 a day for every day over the contract time. McMeekan commenced the [335]work, and worked upon the houses until November 12th, 1875, when he abandoned the contract, after having received five installments of the contract price, and absconded from the State, leaving the plaintiffs and others, as his material-men and workmen, unpaid. To complete the work thus abandoned, the owner on the 3rd of December, 1875, made a contract with other contractors for the sum of $10,800. The houses were finished by the last contractors; and within thirty days after they were completed, the plaintiffs and others filed liens, which they seek in this action to foreclose.

By part 3, title 4, chapter 2, of the Code of Civil Procedure, the principal and subsidiary contractors in a building contract, who by their skill, labor, or materials, create or improve the property of another, are entitled to a lien upon the property itself to secure payment of the value of the services, or the material furnished, within the limits of the price as fixed by the contract between the owner and the original contractor. Liens to that extent may be filed by the original contractor and his employes; but for the creation and attaching of such liens, performance of the work is a condition precedent. If the contract is an entirety, no liens can be filed from time to time as the "work progresses, or for partial performance. (Cox v. W. P. R. R. Co. 44 Cal. 18.) Liens must be filed within thirty days after the completion of the building, and they are enforceable only to the extent of the money due upon the contract made by the original contractor, and according to its terms. (Dore v. Sellers, 27 Cal. 238; Blythe v. Pulteney, 31 Cal. 233.) If the original contractor fails to perform his contract, or if he has performed it in part, and there is no money due to him according to its terms—or if, having performed it, he has been fully paid by the owner of the property according to the contract, before notice of the lien—neither lie nor his employes are entitled to enforce a lien upon the property.