Kerckhoff-Cuzner Mill & Lumber Co. v. Cummings

Gibson, C. — The plaintiff furnished certain building material of the value of $429.87 to the defendant Singer, for the alteration and repair of a dwelling-house owned by the other defendant, Cummings, who had contracted with Singer to have him alter and repair said dwelling-house, and furnish the necessary material therefor. To recover the value of the material so furnished of Singer, and to enforce a lien claimed therefor upon the house of Cummings, this action was brought, and resulted in a personal judgment against Singer, who defaulted, and a foreclosure of the lien claimed upon the property of Cummings. From the judgment so rendered against him Cummings appeals.

The appellant in bis answer set up as a separate defense that he entered into a verbal contract with Singer, by which Singer was to make certain repairs on the appellant’s house, and furnish material for the same, for the sum of $451, portions of which sum were to be paid every Saturday night as the work progressed; that while the work was being done, payments were made, and after it was completed Singer was paid in full; that during the performance of the contract by Singer, the respondent did not serve any notice upon the appellant to [24]the effect that it had furnished material for the building to Singer, but that about one month after the work had been completed, and the appellant had paid Singer, the contractor, in full, the respondent notified the appellant that there was a certain amount due for material furnished to Singer; that appellant thereupon notified respondent that Singer had been paid in full, and there was nothing due from the appellant to him. To this portion of the answer the respondent demurred, upon the ground that it did not constitute a defense to the action. The demurrer was sustained, and the trial was had with such portion of the answer eliminated.

- The ruling thus made presents the only question in the case, as to whether notice is necessary from the material-man to the owner, in cases wffiere the contract price does not exceed one thousand dollars, in order that the owner may be required to hold back sufficient money due or that may become due the contractors to meet the claim of the material-man, and satisfy any lien he may file therefor.

The respondent, in support of the ruling of the court below sustaining the demurrer to the answer, contends that all contracts betw-een the reputed owner and the contractor, whether the price to be paid thereunder exceeds one thousand dollars or not, as provided for in section 1183 of the Code of Civil Procedure, are subject to and controlled by section 1184 of the same code, which requires the price, payable under contracts between the reputed owner and the contractor, to be paid in money, and in installments after the commencement of the work, and the reservation of one installment of at least twenty-five per cent of the whole price for at least thirty-five days after the completion of the’ work; and that the contract price under the contract in this case having been made payable in a manner different from that prescribed by section 1184, the contract was of no effect as to respondent, and the only notice it (respond