Yancy v. Morton
Before: Garoutte
Synopsis
Mechanics’ Liens — Foreclosure — Parties — Non-joinder of Contractors— Objection upon Appeal.—While the contractors are proper parties to an action by material-men to enforce their liens, they are not necessary parties, and the owner of the property cannot complain upon, appeal because they were not joined as co-defendants, where he has not asked the trial court for an order to have them so joined.
Id. — Assumpsit against Owner of Building — Value of Materials Furnished — Invalid Contract — Pleading — Evidence. — In an action by a material-man to foreclose a lien under sections 1183 and 1184 of the Code of Civil Procedure, where the claimants sue for the value of the materials furnished at the special instance and request of the owner of the building, the contract with the original contractors being void, it is not necessary that the complaint should set out the original contract, and allege its invalidity; hut the plaintiff may show such matters in evidence.
Id. —Illegality of Partnership Furnishing Materials — Estoppel of Owner of Building.— The owner of a building is estopped from setting up the illegality of the formation of a partnership by two corporations which furnished materials for thq building, in an action to foreclose a lien therefor, by an assignee of the partnership.
Id.—Validity of Contract — Time of Payment of Last Twenty-five Per Cent — Optional Payment — Bond against Liens — Substantial Compliance with Statute. — A contract for the erection of a building is not rendered void because it provides that the balance of twenty-five per cent of the contract price shall be paid in thirty-five days after the completion of the building, but may be paid at any time between the date of completion and the thirty-five days in case the contractors show receipts, and give special bonds that all bills will be paid, and that no liens or other claims exist against the premises, such payment to he optional with the owner. Such provision of the contract is in substantial compliance with section 1184 of the Code of Civil Procedure.
Id. — Description of Property. — A contract for the erection of a building need not contain a description of the property upon which the building is to be erected.
Id. — Failure to File Drawings and Specifications Made Part of Contract. — The failure of the contractor to file in the recorder’s office the drawings and specifications of the architect, which the contract recites are signed and attached thereto, and intended to co-operate and become a part of the contract, and which are evidently made an essential part of it, renders the contract void.
Garoutte, J. Action by material-men to foreclose a lien for material furnished in the erection of a building. This appeal is by defendant from the judgment and order denying his motion for a new trial. Poore and Anton, as original contractors, agreed to erect a building for defendant for the sum of twenty-seven hundred dollars. Prior to the completion of the contract, they abandoned the work, and plaintiff now brings this action against the owner of the building for the value of [560]the material furnished, claiming that the contract was absolutely void, because, — 1. Twenty-five per cent of the contract price was not to be retained thirty-five days after the completion of the building; 2. Because the contract contained no description of the property; 3. Because the drawings were made a part of the contract, and were not attached to and filed with it in the recorder’s office.
Appellant also complains that the contractors were not joined as co-defendants. While they were proper parties to the action, it does not appear that they were necessary parties, and if the defendant desired to have them joined as co-defendants, he should have made application to the court for such an order. In Russ Lumber Co. v. Garrettson, 87 Cal. 596, this court declared: “ Lastly, it is said that there is no judgment against the parties personally liable, and that such judgment is necessary to support the lien. We know of no law or decision supporting this position.” (See also Green v. Clifford, ante, p. 49.)
The complaint in this case is upon a contract for the value of goods sold at the special instance and request of defendant. Sections 1183 and 1184 of the Code of Civil Procedure provide that when the contract between the parties, for any of the reasons therein enumerated, is void, materials shall be deemed to have been furnished at the special instance and request of the owner, and the building is subject to a lien for the same. In support of his complaint, plaintiff introduced the contract in evidence for the purpose of showing that it was void. The court found such to be the fact, and the evidence and findings were justified under the complaint. No substantial reason is suggested to us why the necessity existed for plaintiff to set out the contract and then allege its invalidity. Such matters were matters of evidence, and the completeness of the pleading did not demand it.
It is alleged that the San Joaquin Lumber Company, the assignor of the plaintiff, is a copartnership formed from the Hanford Lumber Company and the Puget Sound Lumber Company (corporations). The legality of the formation of the partnership is attacked by de
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