Schallert-Ganahl Lumber Co. v. Neal

Garoutte, J. This is an action to enforce two certain mechanics’ liens, the Schallert-Ganahl Lumber Company claiming $672.21 for materials furnished the contractor, defendant Goetzman, the building being owned by the defendant Neal. The said plaintiff recovered judgment against defendant Neal for the amount claimed, less $525, and also recovered a judgment for an attorney’s fee of $50.

The plaintiff the Los Angeles Planing Mill Company brought its action for $982, and at the trial, upon the conclusion of its evidence, defendants moved for judgment of nonsuit against it, upon the ground that “ it appeared from the evidence that it had willfully and knowingly filed a notice of lien for more than it was entitled to, and sought in this action to recover by foreclosure proceedings against said defendants an amount in excess of the amount actually due.” The motion was granted, and both plaintiffs appeal from the respective judgments and orders denying them a new trial.

The ninth finding of the court is: “That on or about the thirtieth day of November, 1887, the said H. J. Goetzman delivered to John L. Hickman a check drawn by R. T. Royal in favor of H. J. Goetzman, who was then constructing $, house for said Royal, and received from said Hickman a receipt for said check; that at the time of receiving said check, said Goetzman requested from said Hickman, as the agent of plaintiff, that the same be applied [364]on the Royal contract; that said Hickman at said time declined to apply the same to the Royal contract, except for the sum of $385 and some odd cents, the amount then due plaintiff for the materials furnished on said Royal contract, and stated to said Goetzman that the balance would be applied to the account of plaintiff with said Goetzman on other accounts then due, not including the Neal contract; that afterwards, on the same day, and before said Hickman had returned to plaintiff’s office, said Goetzman went to the book-keeper of plaintiff, and stated to' him that he paid said Hickman $525, and requested a receipt therefor on account of the Neal job, at the same time producing the receipt given by Hickman for said check; that said book-keeper, in ignorance of the facts, and relying upon the statements of said Goetzman, gave said Goetzman a receipt for $525 on the Neal job; that upon discovery of the facts, plaintiff ■ promptly repudiated said application by Goetzman, and said Goetzman thereafter approved said bill for the amount then due, to wit, $627.51, without claiming a credit of said $525 thereon. Said sum of $525 was applied by plaintiff as follows, to wit, $385 on the Royal account, being the amounts then due, and the balance to the other accounts of plaintiff against Goetzman, not including the Neal job. That said Goetzman thereafter produced said receipt to Telfair Creighton, the agent of said defendant Juana A. Neal, representing to him that he had paid that amount on the Neal contract for the purpose of inducing said Creighton, as the agent of said Neal, to advance further money on said Neal contract; that plaintiff had no knowledge of the use to which Goetzman had applied said receipt.” A portion of the tenth finding reads: “That by reason of the production by said Goetzman of said receipt for five hundred and twenty-five ($525) dollars, said Creighton, as the agent of Juana A. Neal, advanced further money to said Goetzman.” As a conclusion of law the court found “that the defendant Juana A. Neal is entitled to have the sum of $525, being the amount of the receipt afore