Reed v. Norton

McFarland, J. This is a consolidation of eight actions to foreclose liens under the mechanic’s lien law against defendant, Thomas Norton, the owner of the building in question, and Thomas Helm, original contractor. Judgment went for all the plaintiffs except Knight, and Norton appeals from the judgment and from an order denying his motion for a new trial. The case was here on a former appeal. (Reed v. Norton, 90 [618]Cal. 590.) At that time the trial court had held that the written contract between Norton and Helm was void for want of proper recordation, etc., and had given judgment for plaintiffs tor the full amount of their claims, which amount exceeded twenty-five per cent of the contract price. On that appeal this court held that errors had been committed with respect to two of the liens (those of Smith and Waite, and Knight); but it also held that the court below erred in finding that the written contract between Norton and Helm was void, and for these reasons the judgment was reversed. In the opinion it was said that Norton did not retain for thirty-five days twenty-five per cent of the contract price, and that “he is responsible to that extent, but no further, to those who malte good their claim to it.” But there was no point raised or decided as to the sufficiency of the complaints as they then stood to sustain judgments upon the theory that there was a valid written contract between Norton and Helm.

As a fact the complaints—all except that of Schwartz, Beebee & Co.—■ expressly aver that there was no contract between Norton and Helm. The averments are that the last-named persons did sign a written contract by which Helm was to construct the building for five thousand five hundred dollars, but that neither the contract nor a memorandum thereof was recorded before the work was commenced, or at any time; and that Helm was merely the “agent” of Norton, and as such agent bought tire materials for which the liens were filed. When the remittitur went down after the first appeal the complaints were not amended so as to aver a valid contract between defendants Norton and Helm; but for the purpose of furthér fortifying the original position that there was no such valid contract, each of the complaints was amended by adding thereto a clause averring that “ said defendants mutually agreed to and did abrogate, cancel, and annul said contract”; that after work had been commenced Norton filed in the recorder’s office “what purported to be a memorandum thereof, but which was not a memorandum of the same,” and that they merely conspired together to pretend that the contract price was only five thousand five hundred dollars, whereas the reasonable value of the materials aud labor was nine thousand dollars. At the trial