Clancy v. Plover

California Supreme Court May 23, 1895 No. No. 15832Published

Before: Britt

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Holding. The court held that a contractor is responsible for the full amount of a subcontractor's lien judgment, including costs and attorney's fees, and that a trial court may award attorney's fees in a mechanic's lien case without specific pleading or evidence.

Issues

Whether a trial court must make a finding on an immaterial allegation regarding attorney's fees in a mechanic's lien foreclosure.
Whether a contractor must provide evidence of the value of attorney's fees to support a court-awarded fee.
Whether an owner is entitled to deduct the full amount of a subcontractor's judgment, including costs and fees, from the amount owed to the contractor.

Disposition. modified and affirmed

Quotations verified verbatim against the opinion

“the issue made by the pleadings here on that question was immaterial, and the failure of the court to find upon the same was not error.”

“the court is not bound by testimony touching the value of attorneys’ fees in suits of this nature”

“Under the same section the owner was entitled to deduct from any amount due to respondent the amount of the Stapleton judgment and costs”

Synopsis

Mechanic’s Lien—Foreclosure—Pleading—Attorney’s Fees—Immaterial Issue—Finding.—No allegation need be inserted in a complaint for the foreclosure of a mechanic’s lien relative to the claim of Che plaintiff for attorney’s fees; and an allegation on that subject, if iriade, does not bind the party making it, and an issue made by the pleadings on that question is immaterial, and the court need not find uponi it.

Id.—Evidence—Value oe Counsel Fee—Power oe Court—Discretion. The attorney’s fee in an action for the foreclosure of a mechajnic’s lien is to be fixed by the court irrespective of any averment in the eomplaint, and no evidence need be produced or appear in the record as to she value of the fee; nor is the court bound by testimony touching its\\ value, though such testimony is admissible and may properly be considered by the court, the only limitation being that it shall not abuse the discretion committed to it by the statute.

Id.—Duty of Contractor—Deduction by Owner—Amount of Foreclosed Lien—Costs.—It is the duty of the contractor to protect the property of the owner against any lien preferred by subcontractors, laborers, or materialmen employed by him; and the owner is entitled to deduct from any amount due to the contractor the amount of judgment and costs, including attorney’s fees, recovered upon foreclosure of the lien of a subcontractor.

Id.—Order for Payment of Subcontractor Before Suit.—The fact that an order was given upon the owner by the contractor to the amount of the subcontractor’s claim before action was begun to foreclose the lien, the payment of which was refused, does not affect the obligation of the contractor to pay the debt together with all expenses and attorney’s fees for the foreclosure of the lien.

Id.—Assignment by Contractor—Splitting of Demand.—The contractor cannot split his demand against the owner, and by assignment of a por. tion thereof impose upon the owner, without his consent, the legal obligation to pay the assignee.

Britt, C. Under a contract with appellant the respondent did, and caused to be done, the work of painting a building and other structures situated on a parcel of land, the property of appellant, in the city and county of San Francisco. The work was completed March 9, 1891. For this appellant owed respondent $703, of which sum $345 was paid; and respondent brought this action to enforce a lien asserted by him against the premises where the work was done for the unpaid balance of $358. His complaint contains an allegation that an amount specified is a reasonable allowance for attorney’s fees in the action, which averment defendant denied; the court made no finding on this issue.

Respondent sublet a portion of the work to one Sta[274]pleton, agreeing to pay Mm therefor the sum of $100 After the entire job was completed respondent gave to Stapleton a written, order on appellant requesting the latter to pay Stapleton such sum of $100 out of the contract price then due respondent, but appellant refused to pay such order on presentation thereof. Stapleton filed in the recorder’s office a claim ef lien against the property for the amount due him from respondent; and, after appellant’s refusal to pay said order, commenced an action to foreclose the lien, in which suit Clancy and Plover, the parties here, were made defendants; Plover, the owner, contested the case, but Clancy made default. Stapleton recovered judgment in that action for said sum of $100, together with $3.25, cost of recording his claim of lien, $50 attorney’s fees, and $75.50, costs of suit—in all $228.75, to satisfy which Plover’s premises were ordered to be sold; Plover then paid the amount of that judgment, and claimed credit in the present action for the whole of the sum so paid. But the court below allowed him credit for only $100, the amount of Stapleton’s original demand, and rendered judgment in respondent’s favor for $258, together with costs, and $40 for attorney’s fees. Plover appeals from the judgment and an order denying a motion for new trial.

1. It has been established by the decisions of this court that no allegation need be inserted in a complaint for the foreclosure of a mechanic’s lien relative to the claim of the plaintiff for attorney’s fees; that an allegation on that subject if made does not bind even the party making it. (Mulcahy v. Buckley, 100 Cal. 490; Pacific Mut. Life Ins. Co. v. Fisher, 106 Cal. 224.) Therefore, the issue made by the pleadings here on that question was immaterial, and the failure of the court to find upon the same was not error.

Clancy v. Plover

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