Sidlinger v. Kerkow

Paterson, J. This is an action to recover the sum. of $519 for work and labor upon a certain building owned by the defendant Amestoy in the city of Los Angeles. The amount claimed includes the sum of $300 as a balance under an express contract to perform certain work, the contract price being $600, and the sum of $219 for extra work, alleged to have been performed at the special instance ■ and request of the defendants Iverkow & Shurtz. The action is also to foreclose a mechanic’s lien for the sums mentioned. Plaintiff had judgment in the court below, and defendant has appealed therefrom on the judgment roll alone. The first point made by appellants is, that the contract between the plaintiff and defendants was void because it did net provide that twenty-five per cent of the contract price should be payable thirty-five days after the completion of the contract. Section 1183 of the Code of Civil Procedure provides: “All such contracts shall be in writing when the amount agreed to be paid thereunder exceeds one thousand dollars, and shall be subscribed by the parties thereto, and the said contract, or a memorandum thereof, setting forth the names of all the parties to the contract, a description of the property to be affected thereby, together with a statement of the general character of the work to be done, the total amount to be paid thereunder, and the amounts of all partial payments, together with the times when such payments shall be due and payable, shall, before the work is commenced, be filed in the office of the county recorder of the county, or city and county, where the property is situated; . . . . otherwise they shall be wholly void, and no recovery shall be had thereon by either party thereto: and in such case the labor done and materials furnished by all persons aforesaid, except the contractor, shall be deemed to have been done and furnished at the personal instance of the owner, and they shall have a lien for the value thereof.’"’ Immediately following this provision of sec[44]tion 1183 is the following provision of section 1184: “No part of the contract price shall, by the terms of any such contract, be made pajmble, nor shall the same or any part thereof he paid in advance of the commencement of the work, but the contract price shall, by the terms of the contract, be made payable in installments at specified times after the commencement of the work, or on the completion of specified portions of the work, or on the completion of the whole work; provided, that at least twenty-five per cent of the whole contract price shall be made payable at least thirty-five days after the final completion of the contract.....In case such contracts and alterations thereof do not conform substantially to the provisions of this section, the labor done and materials furnished by all persons except the contractor shall be deemed to have been done and furnished at the personal instance and request of the person who contracted with the contractor, and they shall have a lien for the value thereof.”