Butterworth v. Levy

Belcher, C. The plaintiff and several other parties commenced separate actions to foreclose mechanics’ liens on the same property, and all the actions were consolidated and tried together. The defendant Levy was the owner of the property; the defendant Meyers was a mortgagee thereof, and the defendant Dunning was the original contractor. Levy and Meyers answered, and Dunning suffered his default to be entered.

The case was tried and a decree entered foreclosing all the liens, from which and from an order denying a new trial Levy and Meyers appeal.

The contract was .to erect a two-story building on a lot in the city of San Francisco, and the contract price was more than one thousand dollars.

The contract was not filed in the recorder’s office, and the only question is whether the memorandum thereof, which was filed, was sufficient to meet the requirements of section 1183 of the Code of Civil Procedure.

.That section provides as follows: “All such contracts shall be in writing when the amount agreed to he paid thereunder exceeds one thousand dollars, and shall be subscribed by the parties thereto, and the said contract, [508]or a memorandum thereof, setting forth the names of all the parties to the contract, a description of the property to be affected thereby, together with a statement of the general character of the work to be done, the total amount to be paid thereunder, and the amounts of all partial payments, together with the times when such payments shall be due and payable, shall, before the work is commenced, be filed in the office of the county recorder .... otherwise they shall be wholly void, and no recovery shall be had thereon by either party thereto; and in such case the labor done and materials furnished by all persons aforesaid, except the contractor, shall be deemed to have been done and furnished at the personal instance of the owner, and they shall have a lien for the value thereof.”

The only objection to the memorandum in question is that it did not contain a sufficient “ statement of the general character of the work to be done.” That statement was in these words:

“ 3. The general character of the work to be done under said contract is as follows, to wit: The said W. B.. Dunning, as contractor, agrees with the said M. B. Levy, as owner, to furnish the necessary labor and materials, including tools, implements, and appliances required in the execution of a two-story building fifty-one feet by twenty-five feet, and in a workmanlike manner in conformity with the plans, drawings, and specifications for the same made by John Gash, the authorized architect employed by the owner, and which are signed by the parties hereto, and are to be kept and remain in the office of said architect, subject to the inspection of the parties hereto and others concerned in said erection.”