San Diego Lumber Co. v. Wooldredge

Temple, C. — This action is to forclose a lien for materials furnished defendant Smith, as contractor, for building a house for defendant Wooldredge. The other defendants were lienors.

[577]Williams & Whitmore were the only lien claimants who answered.

The contract price for the building was $1,945, all of which had been paid except $505. Plaintiffs demand was for $748.86.

Williams & Whitmore recovered judgment for $145.50, and $50 as an attorney’s fee.

On the trial, various objections were made to plaintiff’s notice of lien, all of which, however, are only modifications of the general one, “ that it contains no sufficient statement of the terms, time given, and conditions of the contract” under which the materials were furnished. The objection was sustained, and subsequently a non-suit was granted as to defendant Wooldredge. Exceptions were duly taken, and the case comes here on an appeal from the judgment and an order refusing a new trial.

The material portion of the notice of lien is as follows: “ The said San Diego Lumber Company agrees to furnish said lumber and building material to said Smith to be used in the construction of said building upon said real property, and deliver the same at Escondido, in said county; and the said Smith agrees to pay therefor the sum of $833.86, the same to be paid in partial payments (the amounts of which were not fixed), at the time when payments became due said Smith under said contract between him and said Wooldredge, provided that full payment for all materials furnished as aforesaid was to be made when the final payment became due said Smith from said Wooldredge under said contract between them.” The trouble is, that it refers to the contract between the contractor and Wooldredge for the terms of making payments, and does not repeat the provisions of the contract on that subject.

The contract, being for more than one thousand dollars, was duly filed in the recorder’s office of the county, and all parties interested could there readily ascertain [578]what the contract had provided upon the subject. Referring to that contract, we find payments by installments explicitly stipulated. But the notice of lien states that the amount of partial payments was not fixed. Upon this contract, the plaintiff could not insist upon any specific sums being paid until the final payment became due, upon the completion of the contract, when all became due. This seems a sufficient compliance with the statute, and we think the claim should have been received in evidence.