Linck v. Johnson

California Supreme Court Nov 9, 1901 No. L. A. No. 1102Published

Before: Cooper

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Holding. The court held that a variance between the notice of lien and the evidence regarding a single item does not invalidate the entire lien for other items correctly stated. Furthermore, the court affirmed the award of attorneys' fees and costs because the defendant failed to make a formal tender of the amount due.

Issues

Whether a variance regarding one item in a notice of lien renders the entire lien void.
Whether the plaintiff was entitled to recover attorneys' fees and costs under the Code of Civil Procedure.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We cannot hold that because the contract, as to one item, was improperly set forth in the notice of lien, the lien was void as to all other items concerning which the contract was correctly stated.”

“It is sufficient to hold that no recovery can be had, except for such materials as were furnished under the terms of the contract set forth in the notice of lien.”

Synopsis

Mechanic’s Lien.—The Fact That a Contract, as to One Item, is improperly set forth in the notice of a mechanic’s lien, will not render the lien void as to the other items, concerning which the contract was correctly stated, but recovery can be had for all such items as are correctly stated.

Mechanic’s Lien.—Where, in an Action to Foreclose a mechanic’s lien, it is stipulated that defendant was at all times represented by her father as her agent in all the matters in controversy, that proof of such agency is unnecessary, and that her father attended to all business with plaintiff, evidence that such father told witness, when he wanted materials, to order them, and that when materials were wanted the father either ordered them or directed the witness to do so, is admissible to show authority for supplying extra materials.

Mechanic’s Lien—Foreclosure—Costs and Fees.—Under Code of 'Civil Procedure, section 1195, providing that the court must allow, as a part of the costs on foreclosure of a mechanic’s lien, the money paid for filing and recording the lien, and reasonable attorney’s fees—such costs and fees to be allowed to lien claimants whose liens are established—a party establishing a claim is properly allowed such fees and costs where defendant makes no tender of the amount due, or offer to allow judgment for any sum.

COOPER, C. Appeal from judgment on a bill of exceptions. The action was brought to foreclose a lien for materials furnished by plaintiff, to be used, and which were used, in the construction of a building upon the premises described in the complaint. By the terms of the contract between the parties the plaintiff agreed to furnish to defendant certain moldings, turning, brackets and material for inside finish [818]for the sum of $410. The plaintiff complied with the contract, and the amount thereof, except the sum of $160, was paid by defendant. The complaint alleged the contract, and sought a decree for the recovery of the $160. It also alleged that 'the plaintiff furnished extra materials, to be used, and which were used, in the building, of the value of $55.60. The defendant in her answer admitted the balance due on the contract as alleged in the complaint, and that the further sum of $28.45 was due for extras, but denied that any further or greater sum was due. It was expressly alleged in the answer “that the total sum due plaintiff on account of the said contract and said extras is $188.45, and no more, and this sum said defendant is ready, able, and willing to pay.” The real amount in dispute, according to the verified pleadings, is the sum of $27.15. By the judgment the court found that the amount due plaintiff for extras is $26.30, which is forty-five cents less than is admitted by the answer to be due. The judgment was for the balance due under the contract, $160, for $26.30 for extras, with interest upon said amounts at the legal rate, for $20 attorneys’ fees, and for costs, and that the same be declared a lien upon the premises, and that they be sold to satisfy said judgment. The real amount now in controversy is the attorneys’ fees and costs. It is claimed that the evidence shows a variance from the contract set forth in the notice of lien. The notice of lien states that the extras were furnished for their reasonable value, and that no price was agreed upon; that they were furnished upon an implied contract. The evidence showed that in the sum total.of extras was an item of $1L75 for small doors, which were furnished at the agreed price of $11.75. There was a variance as to the said item, and the court excluded it. After the exclusion of this item there was no variance. We cannot hold that because the contract, as to one item, was improperly set forth in the notice of lien, the lien was void as to all other items concerning which the contract was correctly stated. If such rule were adopted, it would result in almost wholly defeating the purposes and objects of the lien law. It is sufficient to hold that no recovery can be had, except for such materials as were furnished under the terms of the contract set forth in the notice of lien. It was not error to allow the witness Dougherty to testify as to giving orders

Linck v. Johnson

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