Brunner v. Marks

Garoutte, J. — In this action judgment was rendered foreclosing certain mechanics’ liens, and the appeal is prosecuted Ivom that judgment and the order of the court denying a new trial. Various liens were filed against the property by different mechanics, and actions brought thereon, which were subsequently consolidated under an order of the court. Appellants were the owners of a lot in the city of Ukiali, described as being sixty-six feet front upon State Street, with a depth of eighty-six feet upon Perkins Street. There was a building situated upon this lot covering a frontage of forty-eight feet at the time the contract was entered into with one Ludwig, upon which this action arose. The contract, as stated by Ludwig, was to build a one-story brick building, and to extend to two stories an old brick building. The old building here referred to is the building covering forty-eight feet of said lot, the one-story building to be erected covering the remaining eighteen feet of the lot. The contract price was eight thousand dollars for the entire work, and one contract covered it all.

Appellant relied upon twenty-nine assignments of errors of law, but states his principal one to.be that all the liens but one were filed against that part of the structure situated upon the lot described as having a frontage of forty-eight feet, the remaining lien being filed against that portion of the building not [376]covered by other liens, “that is to say, all the liens but one are filed against that portion of the structure covered by forty-eight feet frontage, and the remaining one against the balance of the structure, covering about eighteen feet frontage.” It will be seen that appellants’ contention is that the liens were filed upon a portion of the building, and not upon it all; and that consequently no valid judgment could be rendered foreclosing them, inasmuch as no judgment could embrace more than is included in the claim of lien. This principle is supported by Willamette S. M. Co. v. Kremer, 94 Cal. 210, where the court said: “The statute gives a lien upon the entire building for any portion of the labor done or materials furnished therefor, and there is no provision for a lieu upon a portion of a building, or for the sale of a part of a building to satisfy a lien upon the whole.” There can be no question but that a fatal variance might be created between the claim of lien and the complaint upon the one side, and the proof upon the other, by showing that the lien did not cover the entire building; but in the present case the liens, save one, are claimed for labor and materials furnished in the improvement and construction of additions to that certain building or structure situated upon the portion of appellants’ lot having forty-eight feet frontage, and covered by the old building. In direct line with the claim made by the lien follows the allegation of the complaint, as follows: “ That on or about the twenty-fifth day of October, 1889, the defendant, T. J. Ludwig, entered into a contract with the defendants, A. Marks and B. Marks, whereby the said Ludwig agreed to provide all materials, and add to and change into a two-story brick building the one-story brick building then upon the premises above described.” (Referring to the entire lot.) This allegation of the complaint is not denied, and therefore no issue is made by the pleading as to whether or not the claim of lien covers an entire building or only a part thereof. Such being tlie fact, appellant was not authorized to introduce evidence against his own admission. The findings of the court also fully support the allegations of the complaint in this regard, and the judgment follows the findings. Hence, the difficulties that arose in the Willamette case are not present here. These views also dispose of the ruling of the court upon the question addressed to