Coss v. MacDonough
Before: Garoutte
Synopsis
Mechanics’ Liens—Completion oe Building — Construction oe Elevator— Convenience.—Where an elevator was provided for in the plans and specifications of a building, and a contract was let for its construction when the other contracts were let, the building is not completed until the elevator is constructed; and the fact that the building might have been used without the elevator, and that it was a convenience merely, is immaterial.
Id.—Finding oe Completion — Sufficiency oe Evidence — Trivial Imperfection— Question oe Fact.—Where the court finds that the building was completed when the elevator was constructed, and that the elevator was completed on a specified date, the question whether items of work done upon the elevator after that date were to remedy a trivial imperfection is a question of fact to be determined by the trial court, and its finding as to the date of the completion will not be disturbed merely because work of a trifling character was done upon the elevator after that date.
Id.—Description of Land — Appeal—Technical Objections for First Time.—Technical objections to the description of the land contained in the claim of lien, and in the complaint based thereon, cannot be urged upon appeal for the first time; and where it appears that there was no demurrer to the complain t, and that the claim of lien was introduced in evidence at the trial without objection, and there was in fact a description of the property in the claim of lien, and the complaint alleged that the claim of lien described the property, the fact that it was not alleged in specific terms that the claim contained “ a description of the property sufficient for identification,” is not a technical ground of objection upon appeal.
Id.—Void Contract—Claim of Lien bt Subcontractor — Description of Original Contract-—Variance.—-Where the original contract is void for want of record, the subcontractor does not thereby become an Original contractor; and the fact that the claim of lien of a subcontractor sets up the original contract, does not preclude a recovery by the subcontractor against the owner of the building, under sections 1183 and 1184 of the Code of Civil Procedure, or cause a fatal variance between the claim of lien, and a count of the complaint against the owner of the building, setting up the contract deemed to have been made with him pursuant to the code.
Id.—Time of Verification of Claim.—The verification of the claim of the lien of a subcontractor for labor and material, made after the work was done and the materials furnished, is not premature, though made several months prior to the completion of the building and to the filing of the claim of lien.
Garoutte, J. This appeal involves the correctness of a judgment in three consolidated actions for the foreclosure of liens against the property of the defendant MacDonough for materials furnished and labor performed in the construction of a building upon certain property of his, situate in the city of Oakland, and described in the complaints. Defendant appeals from the judgment. It is first insisted that some of the claims of lien were prematurely filed, and that others were filed too late. The court found as a fact that the building was completed April 10,1893, and if that finding has support in the evidence, then all the claims of lien were filed within thirty days thereafter. The building to be erected was of large size, costing a quarter of a million dollars, and different contracts were let by the owner for the construction of various portions of it, and among these contracts let was one for the construction of an elevator. The trial court held that the elevator was an essential and necessary part of the building, and that the completion of the building dated from the completion of the elevator, the work upon this elevator being the last [666]work done. While there may have been a little work done on the elevator upon the eleventh and twelfth days of April, it must of necessity have been of trifling character, and the finding of the court as to the date of completion will not be disturbed for that reason. For as said in Willamette etc. Co. v. Kremer, 94 Cal. 208: “Whether the items of work which were done after the date at which the appellant claimed the building was completed were a ‘trivial imperfection’ was also a matter of fact to be determined by the court.” Again, we have no doubt of the soundness of the trial court’s views in holding that the elevator was a substantial and necessary part of the building, and, until the elevator was constructed and placed in position, it could not be said that the building was completed. An elevator was called for by the original plans and specifications; a contract was let for its construction at the same time that other contracts were let. It was attached to the building, and formed an integral part thereof. The fact that the building might have been used without it, and that it was a convenience merely, is immaterial. That is not the question. Conceding an elevator in this character of .building to be a mere convenience, which would seem not to he the fact, still conveniences are a material part of the building when provided for by the plans and specifications; and when so provided for, the building is not completed until the demands of the plans and specifications in this regard have been satisfied.
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)