De Camp Lumber Co. v. Tolhurst
Before: Belcher
Synopsis
Mechanics’ -Liens — Foreclosure—Default of Contractor—Liability of Owner of Buildinq—Costs and Counsel Fees in Excess of Contract Price. —In an action against the owner of a building and the contractor to foreclose mechanics’ liens, the action of the contractor in permitting Ms default to he entered, is, in effect, an admission that the plaintiff's are entitled to the money, and where the owner of the building retains the balance of twenty-five per cent due the contractor in his hands, and apparently without cause or right raises a contest on every point and fights the case to the end, Ms liability is not limited to the amount due the contractor, but costs and counsel fees are properly allowed and made payable out of the proceeds of the property ordered to be sold to satisfy the liens.
Id—Objection of Retention of Twenty-five per Cent—Benefit of Lien-holders—Construction of Code.—The object of section 1184 of the Code of Civil Procedure, which requires twenty-five per cent of the whole contract price for the erection of a building to be made payable at least thirty-five days after the final completion of the contract, is to protect subcontractors, material men, and laborers, thereby giving them , if unpaid, ample time after the completion of the work to file then' claims of lien and secure payment of any sums of money due them.
Id.—Deposit of Money in Court.—The owner of a building, after its completion by the contractor, holds the money reserved, as required by secton il84 of the Code of Civil Procedure, for payment to the contractor or lien-claimant, whichever is entitled to it, and if there is a contest between them he should deposit the money in court to be paid to the party adjudged to be entitled to it.
Belcher, C. In September, 1891, John A. McCarty entered into a written contract with Shelley H. Tolhurst, appellant, to furnish the materials and construct for him on a lot in the city of Los Angeles a dwelling-house, with fences and other structures, for the sum of $2,275. The contract was duly recorded and by its terms twenty-five per cent of the [633]whole contract price was made payable thirty-five days after its final completion.
The De Camp Lumber Company, respondent, under contract with McCarty, furnished materials which were used in die construction of the building, of the value of $1,023.54, of which sum $532.14 was still due and unpaid at the time of the commencement and trial-of this action.
The Woodworth Commercial Company, respondent, under contract with McCarty, also furnished materials which were used in the construction of the building, of the value of §69.48, no part of which sum had been paid.
The building, fences, and other structures were completed on December 5,1891, and on January 2,1892, each of the respondent companies filed in the office of the county recorder of Los Angeles County its claim of lien for the materials furnished, in proper form and duly verified.
The De Camp Lumber Company commenced this action against the appellants and McCarty, the contractor, to foreclose its lien. The Woodworth Commercial Company intervened and filed a complaint for the foreclosure of its lien. McCarty failed to appear and allowed his default to be entered. The appellants answered both complaints and denied all their material averments.
The case was tried and the court found upon all the issues in favor of the respondents; and, among other things, that twenty-five per cent of the contract price—that is, §568.75 — still remained in the hands of appellants, and that $75 was a rea-. sonable attorney’s fee to be allowed to each of the respondents. And as conclusions of law it found that each respondent was entitled to judgment against McCarty for the amount of its claim, with interest thereon from December 5,1891, to the date of the judgment, and for costs of suit, including $75 for attorney’s fees, the two claims aggregating for principal and interest $629.25; and also that respondents were entitled to a decree against appellants for the sale of the said house and lot and the application of $568.75 of the proceeds thereof to the payment of the said judgments in proportion to their respective amounts, and for the application of so much of the balance of such proceeds as might be necessary to pay the said costs and attorneys’ fees.
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