Green v. Clifford

California Supreme Court Mar 26, 1892 No. No. 14276Published

Before: McFarland

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Holding. The court held that the mechanic's lien claims were valid, affirming that a surety acting as an agent for the owner binds the owner to contracts for labor and materials, and that pleadings may incorporate prior counts by explicit reference.

Issues

Whether a surety completing a building after the contractor's abandonment acts as the owner's agent, binding the owner to lien claims.
Whether a complaint is fatally defective if subsequent counts incorporate necessary averments from the first count by reference.
Whether the original contractor is a necessary party in an action to enforce a mechanic's lien against the property owner.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The court, however, found that such was not the fact; and that after the abandonment by Graham, Sylvester was merely the agent and foreman for defendant, Clifford”

“it is not fatally defective because it incorporates, by reference, certain general averments which are in the same pleading, and which are necessary to all the counts”

“We do not know of any law which makes the contractor a necessary party, so far, at least, as the rights of the owner of the building are concerned”

Synopsis

Mechanics’ Liens — Abandonment of Original Contract — Completion of Work by Surety—Agency for Owner — Findings—Appeal. —Where the evidence is not before the appellate court, and the court below has found, in an action to foreclose mechanics’ liens upon a house, that the original contractor for the erection of the house abandoned the contract and fled the country, and that the surety on his bond thereafter completed the building merely as the agent and foreman for the owner, and, as such agent, ordered the labor and materials for which the liens were claimed, the findings must be taken as true, and the contention, cannot prevail, upon appeal by the owner of the house, that the surety carried out the contract, and that the rights of the lien-holders must be measured by the contract.

Id.— Assigned Liens—Pleading—Separation of Counts — Reference to First Count. — Where a plaintiff in an action to enforce mechanics” liens is also the assignee of several other lien-holders, it is necessary to. state the cause of action upon each lien in a separate count; but where the first count is divided into paragraphs designated by Roman numerals,, and each subsequent count commences with a reference to paragraph I. of the first count, which contains averments necessary to each count, as¡ to the land on which the building was erected, and such paragraph is. expressly made by the reference a part of the cause of action stated in each subsequent count as if incorporated therein, the judgment will not he reversed because such paragraph was not written in full in each of the counts.

Id.—Parties — Contractor—Amendment after Statutory Time — Owner not Prejudiced. — The contractor is not a necessary party to an action by a material-man to enforce his lien against the owner of premises for materials furnished the contractor, so far as the rights of the owner of the building are concerned; and an amendment by the plaintiff to his complaint, making the contractor a party, after the statutory time for commencing the action has passed, cannot prejudice the owner of the premises.

Id. —Abandoning Contractor not a Necessary Party. —A contractor is not a necessary party to an action to enforce liens for labor and materials furnished after the abandonment by the contractor of his contract.

Id.—Hiring for Specified Wages — Finding of Reasonable Value — Immaterial Variance.—Where some of the counts of the complaint allege a hiring by the owner, through her agent, of certain laborers at certain specified wages per day, and the court finds that all the amounts for which judgment was given were “the reasonable value of said work and materials done and furnished,” there is no material variance between the complaint and findings prejudicing the substantial rights of the owner of the building.

McFarland, J. This is a consolidation of several actions brought to enforce liens of various mechanics and material-men against premises owned by defendant, Clifford. Judgment was rendered in favor of the plaintiffs, and defendant, Clifford, appeals from the judgment. There .was no motion for a new trial. There is no bill of exceptions; and all the points made by appellant arise upon the pleadings and findings. There were general demurrers to all of the complaints, and also demurrers on some special grounds. There is no contention that the amounts of the liens claimed were not correct and just. Most of the points made are highly technical, and we will not attempt to notice all of them in detail.

1. The appellant, Clifford, on December 3,1888, made -written contract with one Graham for the construction by the latter of a house on land owned by her for eighteen hundred dollars. This contract was recorded December 4, 1888; and immediately afterwards Graham commenced work on the house, and continued it until December 26, 1888, “when he abandoned the contract and fled the country.” He had given a bond to Mrs. Clifford for the faithful performance of the contract, and-on said bond one.Sylvester was a surety. After the flight of Graham, the building was completed under the supervision of Sylvester; and appellant contends that Sylvester, as such surety, carried out the said contract of Graham, and that therefore the rights of all the respondents must depend upon and be measured by said contract. Upon this contention many of appellant’s [51]points rest. The court, however, found that such was not the fact; and that after the abandonment by Graham, Sylvester was merely the agent and foreman for defendant, Clifford, and, as such agent, ordered the labor and materials mentioned in the various complaints, except in that of the plaintiff the Western Lumber Company. As there is no evidence before us, such finding must be taken as true. All of the labor and materials for which the liens sued on were filed were furnished after the abandonment by Graham, and to the appellant, through her agent Sylvester, except those furnished by said Western Lumber Company, which will be separately noticed hereafter. Hence the contention of appellant that the Graham contract must control the rights involved herein cannot be maintained, and all the incidents of that contention fall with it.

2. Among the plaintiffs, Green claimed and recovered the largest amount; and it is contended that all of his complaint, except the first count, was fatally defective. Green had a lien for work done by himself, and he was also the assignee of eleven other lien-holders; and it was necessary for him to put the cause of action upon each lien in a separate count. His first count was plainly divided into distinct paragraphs, accurately designated by Roman numerals from I. to X. Paragraph I. contained certain necessary averments as to the land owned by appellant upon which the building was erected, etc. The subsequent counts commenced in this way: “ Plaintiff hereby refers to paragraph I. of the first cause of action hereinbefore set forth, and expressly makes said paragraph a part of this cause of action as if incorporated herein ”; and appellant contends that the judgment should be reversed because paragraph I. of the first count was not written in full in each of the other counts.

Green v. Clifford

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