Bianchi v. Hughes

California Supreme Court Mar 15, 1899 No. S. F. No. 1165Published

Before: Harrison

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Holding. The court held that the trial court's determination that a building was not completed due to substantial unfinished work was a question of fact supported by evidence, and that a notice under section 1184 of the Code of Civil Procedure does not create a personal liability against the owner beyond the scope of the lien remedy.

Issues

Whether the trial court's finding that a building was not completed, thereby invalidating a mechanic's lien, was supported by the evidence.
Whether a notice served under section 1184 of the Code of Civil Procedure creates an independent right of recovery against the owner regardless of the lien requirements.
Whether the trial court's determination that certain materials did not become fixtures of the building was supported by the evidence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“What constitutes a ‘trivial imperfection’ is a question of fact in each instance”

“The remedy thus provided is limited to the cases in which, by section 1183, the property may be made subject to a lien”

“Whether the materials furnished by the appellant were so affixed to the building as to become a part thereof was a question of fact to be determined by the court upon the evidence before it.”

Synopsis

Mechanics’ Liens—Completion of Building—1 ‘Trivial Imperfection” —Construction of Code.—“Trivial imperfections,” which, under section 1187 of the Code of Civil Procedure, are not to be deemed such a lack of completion of a building as to prevent the filing of any lien thereupon, refer to imperfect or defective performance of the work upon a building which is claimed to be completed, and relate to the question whether or not there has been an actual completion of the building. They do not apply to a case in which the building is uncompleted, and workmen are engaged in constructing substantial portions thereof.

In,—Question of Fact.—What constitutes a “trivial imperfection” is a question of fact, the decision of which by the trial court cannot be disregarded, unless the party complaining makes it clearly appear to be without any evidence in its support

Id.—Finding—Noncompletion of Building.—A finding that the building was not completed when the claim of- Hen was filed, carries with it the additional finding that in the- opinion of the court the uncompleted portions of the building were not trivial imperfections.

In.—Relative Cost of Uncompleted Past—Substantial Omissions.— The question, whether an omitted portion of a building is a “trivial imperfection” is not to be determined by its relative cost to that of the entire building; but if the omissions arc so substantial that the contractor would not have a right of recovery upon bis contract until they are supplied, the building is not completed, so that a claim of lien filed thereon can be enforced.

In.—Marble Steps to Basement — Premature Notice of Lien.—■ The construction of marble steps, by which the basement of the building was to be reached, is a substantial portion of the building, and the absence of the steps is not a trivial Imperfection, though tihe cost of construction thereof was small in comparison with the cost of the entire building; and a notice of lien filed by a materialman upon the building in advance of the construction of such steps is premature, and cannot be enforced.

In.—Claim of Materialman—Notice to Owner—Garnishment of Money Due Contractor—Cumulative Remedy.—The written notice given by a materialman to the owner under the provisions of section 1184 of the Code of Civil Procedure, stating the facts required, and requesting the owner to withhold from the contractor sufficient money to pay his claim, has the effect of a garnishment of the moneys coming to the contractor which are in the hands of the owner, for materials furnished and actually used in the construction of the building. Such notice is merely a cumulative remedy to a person entitled to a lien under section 1183 of the same code.

Id.—Materials Affixed to Building—Question of Fact.—The question whether the materials furnished, or any portion thereof, were or were not so affixed to the building as to become part of it, is a question of fact to be determined by the trial court upon the evidence.

HARRISON, J. Action for the foreclosure of a mechanic’s lien upon the Parrott, building in San Francisco.

The court found that the notice of lien was not filed within thirty days after the completion of the building, and rendered ■judgment in favor of the plaintiff for the amount sued for, but without declaring the same a lien upon the property. The plaintiff contends that the findings are not sustained by the evidence, and appealed from the judgment within sixty days after its rendition, bringing the evidence here in a bill of exceptions. There was no original contractor with the owner for the construction, of the entire building, but the owner made contracts with different persons for constructing different portions of the building. In May and also in June, 1896, the owner entered into two contracts, each for a sum greater than one thousand dollars, with the San Francisco Furniture Company for the construction and completion of a portion of the basement of the building. Neither of said contracts or any memorandum thereof was filed with the county recorder. The plaintiff furnished to this corporation a portion of the material for the performance of these contracts, and the present action is for the enforcement of a lien therefor.

1. The court found that he filed a notice of his claim of lien with the county recorder on the 16th of September, 1896, but that it was not filed within thirty days after the completion of the building. It appears from the evidence that the building was not actually completed at that date or for some time thereafter, but it is contended by the appellant that the particulars in which it was uncompleted were but “trivial imperfections,” which under section 1187 of the Code of Civil Procedure are “not to be deemed such a lack of completion as to prevent the filing of any lien.” The record upon this appeal does not contain the plans and specifications of the building or of the owner’s contracts with the furniture company, from which the extent of this incompleteness can be determined by comparison therewith, but it was shown that certain substantial portions of the basement, including a flight of marble steps thereto, were constructed after the above date; and the finding of the court that the building was not then completed carries with it the additional finding that in its opinion the uncompleted portions were not trivial im[27]perfections. “Trivial imperfection/ as used in the code, relates to the question whether or not there has been an actual completion of the building.” (Marble Lime Co. v. Lordsburg Hotel Co., 96 Cal. 332.) “What constitutes a ‘trivial imperfection’ is a question of fact in each instance” (Willamette etc. Co. v. Los Angeles College Co., 94 Cal. 229); and the decision of the trial court thereon cannot be disregarded, unless the party complaining makes it clearly appear to be without any evidence in its support. (Harlan v. Stufflebeem, 87 Cal. 508.) The “trivial imperfections” mentioned in the above section refer to imperfect or defective performance of the work upon a building which is claimed to have been completed, and not to a case in which the building is admittedly uncompleted, and workmen are still engaged in constructing substantial portions thereof. (See Santa Monica etc. Co. v. Hege, 119 Cal. 376.) Neither is the question whether an omitted portion of the building is a trivial imperfection, or is a substantial failure in its completion, to be determined by its relative cost to that of the entire building. If the omissions are so substantial that the contractor would not have a right of recovery upon his contract, he cannot enforce a lien therefor. (See Marchant v. Hayes, 117 Cal. 669.) The court was, therefore, justified in considering that the marble steps by which the basement was to be reached was a substantial portion of the building rather than a trivial imperfection, even though its cost was small in comparison with the cost of the entire building.

Bianchi v. Hughes

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