McIntyre v. Trautner

Per Curiam. The appeal is from an order of the Superior Court denying plaintiff’s motion for a new trial. The action ivas brought to enforce an alleged lien for work done by plaintiff as a plumber, and materials by him furnished and used in a building of defendant. At the conclusion of plaintiff’s evidence defendant moved for nonsuit, or that the action he dismissed, upon the grounds following: “ That said lien had not been filed in the time required by laAV, and that plaintiff’s proof directly controverted his allegations in his complaint and in his notice of lien in this: that said complaint and notice of lien set forth and allege that plaintiff was a sub-contractor for the Avork for Avhich he demands payment in this action, Avhereas his evidence given on this trial clearly states that he was the sole and original contractor; that as the plaintiff seeks to foreclose a sub-contractor’s lien, and as his testimony shoAvs he was an original contractor, there is a fatal variance between the pleadings and his proof.” The court below granted defendant’s motion, to which ruling plaintiff, appellant here, duly excepted,

1. As appeal's by plaintiff’s testimony—which must be conceded to be true in determining the propriety of the nonsuit,— defendant, about the middle of February, objected that “the job was not satisfactory, and that he Avould not accept,” etc.— that “ the pipes leaked,” and requested plaintiff “ to go and put them into proper shape.” The leaking Avas stopped and the [430]work perfected April 25, .1878. The lien was filed May 24, 1878. Defendant cannot be heard to say that the additional work, done at his request to complete the contract, was not a continuation of the previous work, and done under the same contract. The notice of lien was filed in time.

2. The complaint does not set forth that plaintiff was a subcontractor. On the contrary, it sets forth an original contract between plaintiff and defendant. The oral testimony on the part of the plaintiff tending to prove an original contract accords with the averments of the complaint.

3. Did the notice of lien filed by plaintiff fail to state any of the material matters required by the Code to be stated in a notice of lien filed by one claiming as an original contractor?

Section 1187 of the Code of Civil Procedure provides: —

“ Every original contractor, within sixty days after the completion of his contract, and every person, saving 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 the oath of himself, or of some other person.”