Marchant v. Hayes

Harrison, J. In this action, brought by the plaintiff Marchant for the foreclosure of a mechanic’s lien upon a certain building in Tuolumne county, a cross-complaint was filed by the defendant Hayes against his codefendant Chute, in which he claimed a lien upon the same property for labor done and materials furnished by him in the construction of the building. The court found that on June 18, 1894, Hayes entered into a contract in writing with Chute for the construction of the building for the sum of two thousand one hundred dollars, and agreed to complete the same according to certain plans and specifications, and have it ready for occupancy on or before August 1st; that Hayes thereupon commenced the construction of the building, and that work was performed thereon under his direction until October 28th, when he abandoned work thereon; that some of the men emploj'ed by him continued to work thereon until November 5th, when they, too, ceased to work, and at that time, and also at the commencement of this action, the building was unfinished and incomplete in various material and substantial particulars. The court also found that during this time [671]Hayes performed labor as superintendent upon the building for four months which was reasonably worth four hundred dollars, and also that he furnished certain materials of the value of one hundred and twenty-five dollars and fifty cents, which were used in the construction of the building under the terms of the contract; but that he was never employed by Chute to construct said building, either as superintendent or otherwise, except by virtue of the aforesaid contract, and that all the labor performed by him and all the materials which were furnished by him in the construction of the building were performed and furnished under and by virtue of his contract. The contract between Hayes and Chute was not filed for record with the county recorder, but after he abandoned work he filed a claim of mechanic’s lien which he sought to enforce in this action. A personal judgment was rendered in his favor against Chute for the sum of five hundred and twenty-five dollars and fifty cents, but the court did not adjudge the same to be a lien upon the property. From this judgment Chute has appealed upon the judgment-roll alone without a bill of exceptions.

The omission to file the contract in the office of the county recorder deprived the contractor of any lien for his labor and materials (Code Civ. Proc., sec. 1183); but he did not by such omission acquire any greater right to a recovery for his labor and materials than he would have had if he had brought an action therefor, irrespective of his right to a lien. Under the finding of the court that Hayes was never employed to construct the building, except by virtue of the contract of June 18th, and that all the labor performed and all the materials furnished by him were performed and furnished under and by virtue of this special contract, he had no right of recovery, unless he should show that he had completed the contract on his part, or that its completion had been in some way waived or excused. (Civ. Code, sec. 1439; Smith v. Brady, 17 N. Y. 173; 72 Am. Dec. 442; Bonesteel v. Mayor etc., 22 N. Y. 162; Van Clief v.