Turner v. Strenzel

California Supreme Court Jun 17, 1886 No. No. 9444Published

Before: Thornton

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Holding. The court held that a material-man cannot foreclose a mechanic's lien against an owner without alleging that a balance was due from the owner to the contractor at the time the lien was filed. The court further held that an owner's wrongful interference with a contractor does not create a direct liability to the contractor's material-men.

Issues

Whether a complaint for a mechanic's lien states a cause of action without alleging that money was due from the owner to the contractor when the lien was filed.
Whether an owner's wrongful expulsion of a contractor and use of the contractor's materials creates a liability to the contractor's material-men.

Disposition. affirmed

Quotations verified verbatim against the opinion

“A material-man is only entitled to be paid from that portion of the contract price which remains due and unpaid to the contractor .by the owner when he (the material-man) files his lien”

“It nowhere appears that the owner had not paid to the contractors prior to the filing of any lien by plaintiff’s assignors all that was due to them.”

“Strenzel by his acts did not become bound to the material-men, or the plaintiff, their assignee, for the price agreed to be paid by the contractors for the materials purchased.”

Synopsis

Mechanic’s Lien—Material-man—Liability of Owner of Butldinq, — A material-man who has furnished materials to the original contractor of a building, to be used by him in its construction, is only entitled to be paid therefor by the owner of the building from that portion of the contract price which remains due and unpaid to the contractor by the owner when the lien for the materials was filed.

Id. — Action to Enforce Lien—Necessary Averments—Insufficient Complaint. — The complaint in an action to enforce the lien of a material-man is insufficient if it fails to allege that anything was due from the owner to the original contractor when the lien was filed, notwithstanding it alleges that during the construction of the building the owner compelled the contractor to abandon the work, took possession of the building, completed it, used the materials furnished the contractor in its completion, and withholds from the contractor a large portion of the contract price.

Thornton, J. Action by the assignee of material-men to foreclose what is alleged to be a mechanic’s lien.

There was a demurrer by defendant Strenzel to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, which was sustained. The plaintiff declined to amend, and judgment was entered against him, from which judgment this appeal is prosecuted.

The complaint states that the defendant Strenzel was the owner of the premises on which he contracted with Sylvester and Langabee to erect a building for the sum of eight thousand two hundred dollars; that the contractors, Sylvester and Langabee, proceeded, under the contract, to erect this building on the premises aforesaid, and so continued until it was in an advanced stage, and they had earned and received two installments of the contract price of fifteen hundred dollars each; that while so engaged, they purchased the material sued for from the assignors of plaintiffs, Turner, Kennedy, & Shaw, to be used in the building; that the building has been completed and a lien filed in time; that the defendant Strenzel, from the commencement of the work, interfered with and impeded tl)e contractors in the performance of the contract, and after they had progressed therein to the extent hereinbefore stated, and while they were faithfully performing the same, and had upon the faith of the contract purchased from various material-men, including Turner, Kennedy, & Shaw, large quantities of various kinds of building materials, to be used in the building, for which they had not and have not paid, defendant Strenzel, without right, and without the knowledge or consent of Turner, Kennedy, & Shaw, compelled the contractors to abandon their work on the building, expelled them from it, refused to allow them to [30]proceed with said work, took possession of the building, completed it, and used the materials purchased by the contractors in completing it, and has withheld and still withholds from the contractors the balance of the contract price, to wit, the sum of five thousand two hundred dollars, or thereabouts.

The other allegations of the complaint are of the assignment of the claim to plaintiff, of subordinate interests of the defendants other than Strenzel, followed by the usual prayer.

A material-man is only entitled to be paid from that portion of the contract price which remains due and unpaid to the contractor .by the owner when he (the material-man) files his lien (Rosekranz v. Wagner, 62 Cal. 154, and cases there cited), and where the complaint fails to allege that anything is due from the owner to the original contractor when plaintiff’s lien was filed, it does not contain a statement of a cause of action. This was so held in the cases above referred to.

Turner v. Strenzel

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