Walsh v. McMenomy

Searls, C. J. This is an action to foreclose a mechanic’s lien in favor of a'material-man, and for labor performed. Plaintiff had judgment, from which, and from an order denying a new trial, defendants J. C. McMenomy and Mary J. McMenomy, his wife, appeal. The defendant Mary J. McMenomy owned a lot of land in the city of Los Angeles. Her husband J. C. Mc-Menomy, in 1884, made a contract with the defendant [358]Brittlestone to build a house upon said lot of land. By the terms of the contract seventy-five per cent of the value of the work done was to be paid to the contractor upon the certificate of the architect, as the work progressed, and the balance of the contract price was to be paid within thirty-five days after the completion and delivery of the house, upon a certificate of the architect that the work had been done.

Plaintiff furnished material to the contractor which was used in the construction of the building, and finally the contractor, having failed to complete the work, performed labor to a small extent thereon, and it was completed within the time provided by the bondsmen of the contractor, without other expense to the owner than the contract price, which was $1,930. The building was completed April 28, 1885, accepted by McMenomy and wife, who went into possession and have ever since occupied it.

In January, 1885, and before the building was completed, defendant J. C. McMenomy paid the contractor in full for the erection of the building, all of which, except eleven hundred dollars, was paid without any certificate from the architect, and before it fell due and after plaintiff had notified him of his demand.

The court finds that defendant Mary J. McMenomy had knowledge of the contract, and of the erection of the house upon her land, and consented to the same. Plaintiff’s lien was filed May 25,1885. Defendants McMenomy filed a homestead on the property in question May 2, 1885. This was after the material was furnished by plaintiff and used in the building, but, as may be seen, before plaintiff’s lien was filed.

Appellants make two points upon the judgment roll, viz.: "1. The contract price having been paid before the filing of the lien, plaintiff has no cause of action; 2. The fact that a homestead was declared upon the premises prior to. the filing of the notice of lien is itself sufficient to defeat this action.”