Baird v. Peall

Vanclief, C. Action to foreclose a mechanic’s lien for the sum of $150, alleged to be the balance due on a contract for painting. The following is a copy of the written contract as admitted by the pleadings:—

“San Jose, Dec. 19, 1888.

“ Contract and agreement made this day between W. J. Peall and J. H. Baird, whereby J. H. Baird, a painter and contractor, agrees to paint a certain frame hotel, known as the Continental Hotel, of forty (40) rooms, located in the town of Bethlehem, Santa Clara County, California; the same to be two-coat work of lead and oil or rubber preparation, to suit the owner, W. J. Peall; the shingles above cornice to be painted in different color from main part of building, for the consideration of three hundred and ninety ($390) dollars, but in case of party-colors, an additional twenty ($20) dollars will be allowed to said J. H. Baird. This contract does not include the tin roof. Said J. H. Baird does hereby agree to accept as a part payment a certain contract of certain lots of land situated in the city of San José, or the town of Bethlehem, to the amount of $150, the balance of the contract price to be paid in the following manner, to wit: one hundred dollars upon the completion of priming said hotel outside, fifty dollars more when outside is second-coated, and the balance when the building is completed inside and out.

“ The work to be completed as speedily as possible. We, and each of us, agree to this contract and agreement.

“W. J. Peall.

“ J. H. Baird.”

“ Interior of said building to have two coats of paint and oil, cresting over cornice not included. Peall.”

The judgment was in favor of plaintiff, enforcing the alleged lien for the balance claimed.

The defendant appeals from the judgment, and from an order denying his motion for a new trial.

Appellant contends that the contract is void because the whole price is not payable in money, and, in support [237]of this point, cites the following provisions in section 1184 of the Code of Civil Procedure: “As to all liens, except that of the contractor, the whole contract price shall be payable in money, and shall not be diminished by any prior or subsequent indebtedness, offset, or counterclaim in favor of the owner and against the contractor. . . . . All such contract and alterations thereof as do not conform substantially to the provisions of this section shall be wholly void, and no recovery shall be had thereon by either party thereto.”