Kerckhoff-Cuzner Mill & Lumber Co. v. Olmstead

Belcher, C. C. Action to foreclose the lien of a material-man.

The facts of the case, as shown by the findings, are in substance as follows:—

The defendant, Olmstead, owned a lot of land in the city of Los Angeles, and on the sixteenth day of November, 1886, entered into a contract in writing with the defendants, H. N. and D. F. Sheldon, whereby they agreed to construct for him on his said lot a two-story frame dwelling-house under the supervision and to the satisfaction of John C. Pelton, an architect. The contract price was three thousand six hundred dollars, and was made payable as follows: Twelve hundred dollars when the frame was up, the building inclosed, and the roof shingled; twelve hundred dollars when brown mortar was on, windows glazed, and outside finish complete; and the balance when the whole work was certified to have been completed accord[82]ing to the said plans, specifications, conditions, and stipulations to the satisfaction of the said architect. The contract was filed for record in the recorder’s office of the county on the third day of January, 1887, but no specifications were filed therewith.

On or about the twentieth day of November, 1886, the contractors entered into an agreement with the plaintiff, a corporation, by which it was to furnish lumber and other building material to be used in the construction of the said house, from time to time, as required, such material to be paid for at the current market rates as the same was delivered. In pursuance of this agreement, the plaintiff, between the 20th of November, 1886, and the 6th of April, 1887, furnished building material for the construction of the said house, and which was actually used in the construction thereof between the dates named, of the value of $763.60, no part of which sum has been paid.

On the ninth day of April, 1887, the contractors quit work upon the building and refused to finish it, and no work or labor was done thereon for more than thirty days thereafter. The plaintiff had notice of this cessation of labor upon the building for thirty days at the time thereof.

On or about the twenty-third day of November, 1887, the building was finished, and it was then accepted by Olmstead, and thereafter occupied by him.