Blyth v. Torre

GAROUTTE, J. This action is brought to foreclose a number of mechanics’ liens, and Henry Blyth appeals from the judgment. A written contract was entered into between Luigi Torre and Antonio Raffo, the owners of certain land, and a contractor, Gardiner, for the erection of a building thereon. The contract was for an amount in excess of $1,000, and was not filed in the recorder’s office, but a memorandum [913]thereof was so filed. The contractor failed to pay the laborers, materialmen, etc., and this action was brought by various lien claimants. Blyth, appellant, as the assignee of Blyth and Trott, materialmen, is a party plaintiff. His claim for relief, as evidenced by his complaint, is based upon the idea that the memorandum of contract filed in the county recorder’s office is void in failing to contain those matters required by the statute. It is alleged that it neither contains a statement of the general character of the work to be done nor does it describe the property to be affected. The defendants, by their answer, claim the sufficiency of the memorandum, and as an affirmative defense allege that plaintiff Blyth was a surety upon the contractor’s bond in the sum of $1,900, and by the terms of which bond he guaranteed that the contractor would faithfully perform the conditions of his contract, and that he would save and keep these defendants safe and harmless from all liens that might be filed on account of any claim against the contractor, not exceeding the sum of $1,900. Defendants further allege that liens in large amounts had been filed against the building, and by reason of the conditions of the bond aforesaid plaintiff was estopped from filing, asserting, or enforcing any lien against the property. The trial court held the memorandum of contract sufficient in law, and also held that plaintiff was es-topped from prosecuting this action for a foreclosure of his lien, upon the grounds relied upon by defendant. The action was a consolidated action, and other lien claimants recovered judgment, but their interests are not here involved. We think the memorandum of contract fatally defective in attempting to state the general character of the work to be done. As a compliance with this provision of the statute the memorandum says: “The building is to be a frame building.” While the law requires no description in detail of the general character of the work to be done, still it requires more than is here found. This statement is too general. To say that the building is to be a stone building or a brick building or a frame building entirely fails in essentials to give that notice to the public which the law contemplates. By consulting the memorandum of contract it would be impossible to say whether the building is to be a diminutive cottage, or a large public caravansary, or whether-the contract