Orlandi v. Gray

GAROUTTE, J. This appeal arises upon the foreclosure of two mechanics’ liens. At the trial the actions were consolidated and a single judgment rendered in favor of plaintiffs. An appeal is taken from that judgment, and also from an order denying the motion for a new trial. Only two questions of any importance are involved.

[373]By the answer of defendant Gray, the owner of the building, it is alleged that the architect,' Bourgeois, was a subcontractor for Pugh & Sons, the original contractors, and that plaintiffs in this action performed the labor and furnished the materials, for which they now Seek a lien, for Bourgeois under his contract, with knowledge of the fact that he was the architect of the building and also a subcontractor. For these reasons it is claimed that the architect’s contract with the original contractors is void, and that the architect’s contract with these plaintiffs is also void. The trial court failed to make a finding of fact upon the issue created by this affirmative matter, and error is now predicated upon that failure. Whatever else may be said upon this contention, we deem it sufficient to say that the subcontract of Bourgeois was attached to the original contract and recorded with it in the recorder’s office. This fact is admitted by the pleadings. Therefore, it must be held that the owner of the building was fully conversant with the fact, and under such circumstances the mere dual position occupied by Bourgeois of architect and subcontractor does not ipso facto, render these contracts void. There is no claim of actual fraud or deception, and in the face of the aforesaid admission no finding was necessary.

One of these plaintiffs was to furnish materials and do the staff work upon the building at an agreed price of nine hundred and twenty dollars. The other plaintiff was engaged to do certain sculpture work upon the front of the building at a wage of three dollars per day. The trial court found as a fact that the building was completed upon January 4, 1897, and this finding is now -attacked as without support in the evidence. The building is a large building, and the owner, by herself and tenants, moved into it during the first half of October, 1896. It is now claimed by this appellant that the completion of the building dates from that time by reason of her occupation. This contention is based upon the following provisions of section 1187 of the Code of Civil Procedure: “And in cases of contracts the occupation or use of a building, improvement, or structure by the owner or his representative, or the acceptance by such owner or his agent of said building, improvement or structure, shall be deemed conclusive evidence of completion.”