McLaughlin v. Perkins

Belcher, C. This is an action to foreclose a lien for materials used and work done by subcontractors in the construction of a building for the defendant, Perkins.

The court below gave judgment for the defendants upon the ground that the claim of lien was not filed in time, and the plaintiff appeals from the judgment on the judgment-roll.

The only question in the case is, was the claim of lien filed within the time required by statute?

The court found the facts to be, in substance, as follows: On August 13, 1889, one E. W. Hyde entered into a written contract with defendant Perkins, to erect for him a certain building according to plans and specifications prepared by R. H. White, architect, and to finish the same within ninety days from said date, for the sum of $4,900, payable in installments — the fifth installment of $687.50 to be paid when the building should be completed and accepted, and the sixth installment of $1,250 to be paid thirty-five days after its completion. This contract was duly recorded, and, under it, Hyde proceeded to erect the building. On September [50416]th he contracted with the assignors of the plaintiff to do the tinning and plumbing of the building, which they did, for the agreed price of $720, of which $475 was paid, leaving still due and owing therefor the sum of $245, for which, on March 1, 1890, they duly filed and caused to he recorded their claim of lien.

The building “was completed and finished, according to the plans and specifications, on the twenty-seventh day of January, 1890, but it was accepted by the defendant, William Perkins, on the eighteenth day of January, 1890, and was actually occupied and used by the tenants of defendant William Perkins on the twenty-fifth day of January, 1890, which tenants rented it on the twenty-first and twenty-second days of January, 1890. But plaintiff had no notice of the acceptance of said building by said defendant Perkins, or of its occupation by said defendant’s tenants until the thirty-first day of January, 1890, on which day the architect, R. H. White, issued a certificate in the following words and figures, to wit:

“‘San Francisco, January 31, 1890.

“ ‘ To William Perkins:.

“ ‘ This is to certify that the sum of six hundred and eighty-seven and 50-100 dollars, amount of fifth payment on building located, etc., is due and payable toE. W. Hyde.