Harmon v. San Francisco & San Rafael Railroad

PATERSON, J. This cause was heard in department 1, and the judgment and order were affirmed October 4, 1889, on the authority of Gordon Hardware Co. v. Railroad Co., ante, p. 140, 22 Pac. 406 (filed on that day). By consent of counsel for the respective parties the court below, before the trial of either cause, made an order that the two actions be consolidated. When the cases were considered by this court it was assumed that the record in this ease was substantially the same as the record in No. 12,030; but our attention was called to the fact in the petition for a hearing before the court in bank, and at the argument, that this assumption was not correct. The record in this case differs from the other in two material respects: In this case the evidence shows that “the work on the contract was completed on June 2, 3884.” There is nothing in this record to the contrary, and we cannot, as claimed by respondent, look at any evidence in the other record to explain or contradict this testimony. Second. The description of the materials furnished in the other case was “nails, spikes, iron, steel, picks, shovels, and other like material.” In this "case the materials furnished are described as “lumber, timber and logging, and other like material.” The first description given above was held not good because too indefinite and uncertain, part of the materials described being property for which no lien could be maintained. The case of Malone v. Big Flat Min. Co. 76 Cal. 578, 18 Pac. 772, was relied on as authority for the contention that, although the claim of lien was in part for articles not the subject of lien, the court should permit the party by proof to make the necessary segregation, throw out the value of such articles, and declare a lien for the balance. In that case there were as many claims as there are letters in the alphabet (Exhibits A to Z, Vol. XLV, 1888, Supreme Court Records, pp. 38-120), all of which were assigned to the plaintiff; and, of course, the fact that one of them was for materials not the subject of lien did not prevent a recovery of the others, which were good.

Respondent claims that the claim filed by plaintiff, and upon which this action is based, must have included material for which no lien could be maintained, because the plaintiff testified that of the lumber he furnished “there was used [258]$1,159.13 worth in the building of temporary houses,” and $577 paid on the lumber for freight and cartage. It does not clearly appear whether there was extra material included in the claim of lien, or an erroneous statement as to the value; and, as the claim filed contained no articles except such as are the subject of lien, we cannot say that a lien for so much lumber, etc., as was actually used in the construction of the road, should be defeated by reason of this testimony. As was said in the former opinion, the bare fact that he had filed his lien for too much lumber, or set too high a price on it, would not, in the absence of fraud, defeat his right to recover.