Barker v. Doherty

Garoutte, J. Action brought to foreclose certain mechanics’ liens. The court found that they were prematurely filed, and rendered judgment for respondents. The plans and specifications were made a part of the contract, and were not filed in the recorder’s office; hence the contract was void. (Willamette Co. v. College Co., 94 Cal. 229; Yancy v. Morton, 94 Cal. 558.)

[11]Appellants were material-men, and the only question involved in this appeal is, Were the liens filed prematurely? And that question is answered by a determination as to the time when the building was completed. The court found that the building was completed by the owner (the contractor having decamped) November 30, 1886, according to the plans and specifications contained in the contract. There is evidence showing that a tenant of the owner had some possession of a portion of the building in the preceding month of September, but as these liens were filed and actions brought prior to the amendment of the code declaring occupation by the owner to be conclusive evidence of completion, that fact is only material as-a circumstance tending to show the true date of completion.

In referring to the finding of fact made by the court as to the date of completion of the building, appellants, in their opening brief, say: “ It is evident from the language of this finding that the court had in mind as a standard of completion the requirements of the contract, and had there been a valid contract between the parties, this finding would undoubtedly have been correct. In the absence of such contract, however, no such standard can be used, and it was the duty of the court to determine the fact of completion without reference to the requirements of any contract. Was it substantially done? Had a structure reasonably well adapted to the use for which it was designed been erected ?” Appellants have placed before us no authority supporting the rule upon which they insist, neither can it be supported upon principle.

Section 1183 of the Code of Civil Procedure provides inter alia that if the contract is not filed in the office of the county recorder of the county where the property is situated, it “ shall be wholly void, and no recovery shall be had thereon.” Under this provision of law, the contract in this case being void by reason of failure of recordation, appellants insist that the test of completion must be determined otherwise than by an inspection of [12]