Schmid v. Busch

California Supreme Court Jan 14, 1893 No. No. 19098Published

Before: Belcher

AI Brief

AI-generated · verify before citing

Holding. The court held that a laborer may enforce a lien for the value of labor performed on a building even if the contract price between the owner and contractor is less than one thousand dollars and is payable in property other than money.

Issues

Whether a laborer is entitled to a lien when the contract between the owner and contractor is for less than one thousand dollars and payable in property.
Whether the trial court erred in granting a nonsuit when the plaintiff failed to introduce evidence of the contract terms despite admissions in the defendant's answer.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“It follows that the nonsuit was improperly granted, and that the judgment should be reversed, and the cause remanded for a new trial.”

Synopsis

Mechanic’s Lien—Contract Payable in Land—Admissions of Pleadings'— Nonsuit.—In an action to foreclose a laborer’s lien for $163, where the complaint alleged that the owner of the land entered into a contract with a contractor to repair a building thereon, and that at the date of the completion of the work under the contract there remained due the contractor from the owner a sum of money more than sufficient to pay the amount due the plaintiff for work done by him for the contractor in repairing the building, and the plaintiff proved the labor performed by him, and the amount and value thereof as averred, and the answer of the owner set up a written contract substantially the same as that alleged in the complaint, except that it provided that the work was to be paid for by a conveyance of land, and alleged that the contractor agreed that the land should not be conveyed to him until he paid the owner twenty-five dollars borrowed money, but admitted that the value of the work to be performed by the contractor was four hundred dollars, and that that sum, less the twenty-five dollars, had not been paid, by a transfer of the land, or otherwise, the plaintiff is entitled to rely upon the admission of the answer; and a denial in the answer that any sum was due the contractor upon the completion of the work, pursuant to the contract or otherwise, must be treated as a denial only that any sum was due under the contract; and the failure of the plaintiff to offer evidence as to the terms of the contract between the owner and contractor, or that there was any contract between them, does not entitle the owner to a nonsuit.

Id. —Lien under Contract Payable Otherwise than in Money. — A laborer is entitled, under sections 1183, 1184, and 1201 of the Code of Civil Procedure, to foreclose a lien for work done for the contractor, although the contract price is less than one thousand dollars, and is made payable in something other than money, where it has not in fact been paid when the claim of lien is filed and the action commenced.

Belcher, C. This is an action to "recover from the defendant Busch the value of certain work and labor, and to foreclose a laborer’s lien for the same upon the property of defendant Boone.

It is alleged in the complaint that at all the times named therein the defendant Boone was the owner and reputed owner of a described lot of land in the city of San Diego, with a frame dwelling-house thereon; that on a day named, he entered into a contract with the defendant Busch, under and by which Busch was to furnish certain work, labor, and material to be used in the repair of the said dwelling-house; that the contract was for less than one thousand dollars, to wit, about eight hundred dollars, and was never recorded in the office of the recorder of San Diego County; that Busch commenced the work of repairing the said house about the 1st of May, 1891, and fully completed the same, under and according to the terms of his contract, on the sixth day of July, 1891, and “.that there remains due and unpaid from said defendant B. F. Boone to said defendant W. Busch upon and for the repair of said dwelling-house, under said contract, the sum of not less than two hundred dollars, which said sum became due and payable on the sixth day of July, 1891”; that under a contract with Busch, plaintiff agreed to do and perform work and labor for him in repairing the said house, and under and pursuant to the contract, he did perform such work and labor for forty and one half days; that Busch agreed to pay plaintiff the reasonable value of his services on demand, as soon as the said repairs were complete, and that the reasonable value thereof was $5 per day, and the total value $202.50; that plaintiff had often demanded payment of the amount due him, but had received only $39.50, leaving still due him and unpaid on [186]account of his work and labor, after deducting all just credits and offsets, the sum of $163.

The complaint then sets out the execution and filing for record by the plaintiff of a proper claim of lien upon the house and lot of defendant Boone.

Busch failed to answer, and his default was entered. Boone answered and set up a written contract made between himself and Busch, whereby the latter agreed to do certain work in repairing his house, and in consideration of- said work he agreed to convey to Busch certain lands situate in the county of San Diego. He then denied that all the work and materials were of the value of eight hundred dollars, or of any greater value than four hundred dollars, and alleged that all the work and labor done and all the materials furnished by Busch in and upon said house, during the period covered by plaintiff’s complaint, were done and furnished under the contract above set out; denied that any sum was due from him to Busch on the sixth day of July, 3891, or at any other time, or at all, pursuant to said contract, or otherwise; alleged that on the nineteenth day of June, 1891, he loaned to Busch the sum of twenty-five dollars, and that Busch then made a written agreement, which was attached to the contract before set out, and by which he agreed to repay the sum loaned, with interest at the rate of one per cent per month, and also agreed that the lands described in the attached contract might be held by Boone as security for said sum, and the latter should be under no obligation to convey the same until said sum should be paid; and further, that the said sum had not been paid, nor any part thereof.

Schmid v. Busch

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief