Johnson v. La Grave

Harrison, J. The respondent, La Grave, entered into a contract with his co-defendant, Kearns, for the construction of a building in San Francisco for the sum of four thousand nine hundred and fifty-six dollars. After performing a portion of his contract, Kearns, on the 24th of October, 1891, gave to the appellant written notice that he abandoned the contract, and declined to proceed further in its execution, and thereafter did no [325]work upon the building. La Grave subsequently made a contract with another builder for completing the construction of the building. The building was completed December 21,1891, and the entire cost of its completion was two hundred and seventy-four dollars more than the original contract price with Kearns. Prior to the abandonment of the contract by Kearns, certain materialmen had furnished him materials for the construction of the building, which were used therein, and for which, in January, 1892, they filed with the county recorder claims for mechanics’ liens. These liens were assigned to the plaintiff, who brought this action for their enforcement.

The court finds that after the execution of the contract between Kearns and the respondent, and before work was commenced on the building, a sufficient memorandum of the contract was filed in the oifice of the county recorder, so that the right of the plaintiff to enforce his liens is limited by the contract between Kearns and La Grave.

Section 1187 of the Code of Civil Procedure provides that “every person save the original contractor, claiming the benefit of this chapter, must within thirty days after the completion of any building, file for record with the county recorder” his claim of lien, and that “cessation from labor for thirty days upon any unfinished contract .... shall be deemed equivalent to a completion thereof for all the purposes of this chapter.” As Kearns abandoned the contract October 24, 1891, and as no work was thereafter done upon the building under said contract, it was incumbent upon those who would claim any lien by virtue of his contract with La Grave to file their claim of lien with the county recorder within thirty days after the 23d of November, and, as the claims of lien held by the plaintiff herein were not filed until January, 1892, they did not create any lien upon the building, or constitute any charge against the respondent. Although the appellant has specified, as one of the particulars in which the evidence is insufficient to [326]