Haupenthal v. Bert L. Perry, Inc.

NOURSE, P. J. Plaintiff sued as assignee of a claim of lien filed for materials used in the construction of a building for S. H. Kress & Company, the owner. Judgment went for plaintiff and the owner alone has appealed.

The trial court found that plaintiff’s assignor furnished to Bert L. Perry, Inc., upon an express contract evidenced by an open account, electrical materials which were used in the building under contract with the owner; that in due time this assignor filed its claim of lien which was duly assigned to plaintiff; and that, after said assignment Bert L. Perry, Inc., was adjudged a bankrupt.

Following the assignment to respondent, the assignor filed a claim against Bert L. Perry, Inc., in the bankruptcy proceedings covering the same items of account, and for this reason, appellant argues that the trustee in bankruptcy is [200]a necessary party plaintiff. The trial court found that he was not a necessary party. The proof of the assignment made a prima, facie case for plaintiff. The evidence of a subsequent claim made by the assignor was merely evidence tending to prove a rescission or waiver. The intention of the parties was a question of fact for the trial court and its finding is conclusive.

Appellant contends that the finding that the materials were furnished under an express contract to be used in the building is not supported by the evidence. Without reciting the evidence in detail we find that all the materials were shipped to the “Kress Job” at Pasadena under express authority of a letter from ■ Bert L. Perry, Inc., addressed to respondent’s assignor prior to the date of the first shipment, and that all materials were delivered to that job under invoices expressly • identifying the contract.

Appellant attacks the judgment on the ground that the complaint failed to allege that the owner did not file a bond and hence did not affirmatively bring the case within the class of liens in which a foreclosure is permitted irrespective of the contract price. Tyler v. J. I. Mitrovich Building Co., 47 Cal. App. 59 [190 Pac. 208], is cited as the only case in point. ■ Appellant misconceives the ruling in that case, which was that, when the plaintiff assumes that a good bond has been filed, joins the sureties as parties, and seeks recovery on the bond, he may not attack the validity of the bond on the trial. In other words, if a bond has been filed and the plaintiff seeks foreclosure on the ground that the bond is void, he must make appropriate allegations to tender that issue. Here the pleadings do not mention a bond and the cause was tried on the theory that no bond was filed. If a bond had been filed in accordance with the statute it was a matter of defense which the appellant should have raised by answer.