Giant Powder Co. v. San Diego Flume Co.

The Court. This appeal is from a judgment rendered in the court below in favor of the plaintiff. The action was brought to obtain judgment against a contractor, by a material-man,formaterials.furnished in the construction of certain works to be used to support, the flume of'one of the defendants and appellant, and against the flume company, to subject the structure in. which the materials, were used to the statutory lien, of the plaintiff.

The case has been twice before on appeal in the supreme court. (78 Cal. 193; 88 Cal. 20.)

The point made-for,- thejreversal of the judgment, on the judgment roll albne, now is, that the judgment is not supported by the findings, the argument appearing to be that it was held on the last appeal, which is the law of t,h.e case, that there.-was no valid contract existing between. one Johndrew, the contractor, and the flume company, until! the contract was filed for record on the 6th of June, 1887, and that, as a consequence, there was no lien in favor of the material-man against the structure, which had been accepted by the flume company from the contractor, for materials furnished before the filing of the contract, although the materials were used in the construction of the accepted work or structure. _

The opinion filed at that time is not, in our judgment, susceptible of any such construction.

The pivotal point in that case was, whether or not the structure was completed by acceptance on the part of the flume company, when abandoned to it by the contractor, and thereby depended the determination of the question as to whether or not the filing of the notice of [265]lien of the plaintiff was premature, under section 1187 of the Code of Civil Procedure as amended March 15, 1887.

That part of the section which makes the acceptance of the structure or improvement conclusive evidence of completion has reference to cases where there is a valid contract between contractor and owner of the structure, improvement, or building. And the language of the opinion, which it is erroneously claimed by appellant declares that the payment of the value of the materials furnished before the contract was-filed for record cannot be enforced as a lien,, must be read with reference to the precise matter which was being-discussed in the opinion, —that is, whether, admitting a valid contract to have existed by virtue of the filing thereof for record on the 6th of June, 1887, the notice of lien was premature or not.