Goss v. Strelitz

California Supreme Court Jul 1, 1880 No. No. 6,874Published

Before: Department, McKee, McKinstry

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Holding. The court held that a material-man's lien claim is invalid where the claim contains erroneous dates and fails to provide sufficient information to determine the actual demand, and that payments made for materials must be applied to the building contract rather than to the contractor's general debts.

Issues

Whether a material-man's lien claim containing erroneous dates and insufficient information regarding the quantity of materials supplied is valid.
Whether a material-man may apply payments received from a contractor to the contractor's general debts rather than the specific building contract.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“a claim of lien is not an instrument in the nature of a written contract, to be reformed by a Court of Equity in appropriate cases.”

“The findings do not show but that plaintiff has been more than paid for the brick furnished between the dates mentioned in the claim of lien, and for this reason alone the judgment should be reversed.”

“Neither the contractor, nor a material-man, nor workman upon a building, can legally apply any portion of such payments to the satisfaction of general debts or demands existing between himself and others”

Synopsis

Mechanic's Lien—Claim—Mistake.—In a claim of lien by a material-man it was stated, that bricks of a specified value, (quantity or number not stated) were furnished for the construction of defendants’ building, between February 20th and April 14th, 1877. In an action to foreclose the lien, the complaint alleged, and the Court found, that the plaintiff commenced to deliver the bricks on the sixth day of February, and that the statement of February 20th as the date was a mistake; and that, between the former date and April 14th, bricks were delivered by the plaintiff to the quantity and value alleged in the complaint. Held, that the plaintiff was entitled to recover only for the bricks furnished between the dates stated in the claim; and that, as the quantity furnished between those dates did not appear from the finding, a new trial, was necessary.

Id.—Id.—Id.—A claim of lien is not an instrument in the nature of a written contract, to be reformed by a Court of Equity in appropriate cases; but it is a prerequisite to the maintenance of a proceeding which gives a plaintiff an extraordinary,remedy, to secure the benefit of which he must comply with the terms of the statute.

Id.—Application of Payments.—Pending the delivery of the bricks, and within a few days thereafter, the original contractor paid money to the plaintiff, without specially directing the application of the payments; and the plaintiff applied a portion of the money to the payment of a debt, due him from the contractor previous to the making of the contract. Held— by McKee, J., concurring—that he had no right to do so.

Opinion — Departmentmckinstry

Department No. 1, McKinstry, P. J.: Section 1187 of the Code of Civil Procedure—a section which forms part of the chapter which treats of “ Liens of Mechanics and others upon Real Property ”—reads:

“ Every original contractor, within sixty days after the completion of his contract, and every person, save the original contractor, claiming the benefit of this chapter, must, within thirty days after the completion of any building, improvement, or structure, or after the completion of the alteration or repair thereof, or the performance of any labor in a mining claim, file for record with the County Recorder of the county in which such property, or some part thereof, is situated, a claim containing a statement of his demand, after deducting all just credits and offsets, with the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed or to whom he furnished the materials, with a statement of the terms, time given, and conditions of his contract, and also a description of the property to be charged with the lien, sufficient for identification,- which claim must be verified by oath of himself or of some other person.”

Within thirty days after the completion of the building for which the material was furnished, plaintiff, a material-man, filed his claim of lien, the portions whereof necessary to be considered arc as follows:

“ Such interest as Jacob Strelitz, the owner of said building, had therein on the 2)th day of February, 1877, when said materials were commenced by me to be furnished for said building. That Jacob Weixel is the person by whom I was employed to furnish the said material, and at whose instance and request I did furnish the same; he, the said Weixel, being the contractor of said building. That the following is a true statement of my demand, for which I claim said lien, namely—materials, to wit: Bricks to the amount and of the value of $2,125 in United States gold coin, which said bricks were furnished by me to be used, [643]and were in fact used, in the construction of the said building. That neither the said Jacob Weixel nor the said Jacob Strelitz, nor any one for them, or either of them, have paid me any part of said sum of $2,125, except $1,429.25 thereof, and that the sum of $695.75 in United States gold coin is now justly due to me from said Jacob Weixel and Jacob Strelitz for said materials so furnished and used as aforesaid,-after deducting all just credits and offsets. That the said bricks were commenced by me to be furnished for the construction of said building on the 20th of February, 1877, and were continued so to be furnished up to and including the 14th day of April, 1877, and that thirty days have not elapsed since the completion of said building. That according to the conditions of sale, the said materials were to be paid for in United States gold coin, and within thirty days after the delivery thereof.”

Goss v. Strelitz

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Synopsis

Opinion — Departmentmckinstry

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Concurrence — McKee

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