Page images
PDF
EPUB

[5] Construction of documents such as this affidavit must be reasonable and sensible; and it seems to us that no persons reading this affidavit, in which it is stated that these notices were posted on the 25th day of May, 1911, could come to any other conclusion or construe the affidavit as meaning anything else than that the work of posting these notices was completed on that day. The language of the affidavit is equivalent to a statement that the notices were all posted on the 25th day of May, 1911, which could only mean that the posting was completed on that day. It seems to us that the fact of completion appears sufficiently from this. If, then, it be so conceded, it seems to us that the defect, if defect it is, falls within the rule of Chase 1. Trout, supra, that a substantial compliance with the statute confers jurisdiction upon the council.

It may be said in passing that this proceeding involving the
improvement of a long street, an expensive public work, which
has been completed, should not be overturned on account of these
defects in the proceeding. The improvement act of 1911 by its
own provisions is to be liberally construed to the end that its
purposes may be effected (Stats. 1911, p. 768, sec. 82); and as with
the Vrocman act, so with this act, “the provisions regarding the
posting of notices and the like are to be read in the light of the
purposes to be accomplished". (Haugawout 1. Percival, 161 Cal.
491.) No person can doubt that any property owner who may
have read the affidavit of posting knew therefrom that his time for
protesting began to run at the time stated in that affidavit, namely,
on the 25th day of May, 1911; nor can we be persuaded that any
property owner was injured by the extra distance of 9 feet 4
inches between two of the notices that were posted along the line
of this work.
The judgment is reversed.

BEASLY, J. pro tem.
We concur:

KERRIGAN, J.
ZOOK, J. pro tem.

a

vil No. 2441. First Appellate District. July 11, 1918. WILLIAM A. TULLOH, Plaintiff and Appellant, v. E. J. BOYCE

and MARY J. BATES et al., Defendants; BERNICE ALSTON
and CHARLES H. ALSTON, Intervenors and Respondents.
[1]

MECHANIC's LIEN-FORECLOSU'RE-Lis PENDENS.—Where claim of lien is filed in due time in the recorder's office, as provided in section 1187 of the Code of Civil Procedure, and the action to foreclose the same is commenced within ninety days thereafter, it is not necessary to record a notice of lis pendens upon the foreclosure of that lien in order to charge and hold the property against purchasers pendente lite.

Appeal from the Superior Court of Alameda County---\m. S.
Wells, Judge.

For Appellant-Frank W. Sawyer.
For Respondents-W. B. Rinehart.

[ocr errors]

This is an action to foreclose a mechanic's lien. The appeal is from the judgment in favor of the intervenors and against the plaintiff, and from an order denying plaintiff's motion to vacate the judgment and conclusions of law, and to enter a different judgment and conclusions of law upon the same findings.

The plaintiff was the constractor and lien claimant. The defendants were the owners of the property when the work was done, the lien filed and the action commenced. The intervenors were the purchasers of the property pendente lite. The claim of lien was filed, as provided in section 1187 of the Code of Civil Procedure, in due time in the recorder's office, the action to foreclose the same being commenced within ninety days thereafter; and the sole question presented on the appeal is, Does a party who in due time records a sufficient and valid mechanic's lien, have to record a notice of lis pendens upon the foreclosure of that lien in order to charge and hold the property against purchasers pendente lite?

Section 1190 of the Code of Civil Procedure, specifying the time of continuance of a mechanic's lien, in part reads: "No lien provided for in this chapter binds any building, mining claim, improvement or structure for a longer period than ninety days after the same has been filed, unless proceedings be commenced in a proper court within that time to enforce the same." By implication this provision plainly means that when proceedings to foreclose the lien are commenced within the time designated the lien continues, rendering it unnecessary to file a notice of the pendency of the action.

[1] The authorities sustain this view. In the case of Empire Land and Canal Company v. Engley (Colo.), 33 Pac. Rep. 153, 155— where the statute providing for the filing of a mechanic's lien and its foreclosure is similar to ours (reading that the lien should not hold the property longer than six months after filing the claim unless an action to enforce the same be commenced within time)-it was held that a purchaser or incumbrancer of property upon which a mechanic's lien has been filed is charged with notice thereof by virtue of the mechinic's lien statute itself, without the filing of a notice of lis pendens. Upon this point the Colorado court said: “Considering the design of these statutes we are of the opinion that it is not necessary to file a notice of lis pendens in an action to foreclose a mechanic's lien. The mechanic's lien statute prescribes the kind of notice to be filed by the claimants of such liens, and no additional notice is necessary. . It is true that the statute provides the lien shall not hold the property for a longer period than six months, unless an action shall within that time be commenced to enforce the same. But this is equivalent to an affirmative declaration that the lien shall hold the property for a longer period than six months when an action is commenced within that time to enforce the same."

In Boisot on Mechanic's Lien, sec. 593, p. 620, the author states: "It is not necessary, in the absence of express statutory direction, to file a notice of lis pendens in order to preserve the lien as against purchasers pending suit." And in Bloom Law of

on

Mechanic's Liens (p. 601, sec. 658) we read: “Contrary to the general rule it has been held that a purchaser or encumbrancer of property upon which a claim of mechanic's lien is filed and suit is brought to foreclose the same, is chargeable with notice by virtue of the mechanic's lien without the necessity of filing a lis pendens."

It results from the foregoing that the trial court was in error in entering judgment in favor of the intervenors and in denying plaintiff's motion above described. The judgment and order are, therefore, reversed.

KERRIGAN, J.
We concur:

ZOOK, J. pro tem.
BEASLY, J. pro tem.

Civil No. 2271. Second Appellate District. July 11, 1918. NATHAN COHN, Plaintiff and Respondent, v. CARLIN G. SMITH,

EMIL S. SMITH and HELEN K. JOHNSTON SMITH, Defendants and Appellants.

[1] HUSBAND AND WIFE-COMMUNITY PROPERTY-PRESUMPTIONEVIDENCE.-The presumption that property acquired in the name of the wife is her separate property is not conclusive, and the court is entitled to receive and consider any coinpetent evidence which tends to disclose the manner of acquisition of the property, and from the acts and conduct of the husband determine whether the transaction whereby the property conveyed to the wife constituted a gift to her.

121 ID.-CONTRACT FOR ERECTION OF BUILDING-BOND-ESTOPPEL OF BONDS MEN TO DENY OWNERSHIP.-- Where the contract for the erection of a building was entered into with the husband as the owner of the property and he as owner expended his money for the building, the giving of a contractor's bond was part of the inducement for entering into the contract and the obligors named in the bond should not be heard to deny his title and thereby escape liability, but as to them he should conclusively be presumed to be the real party in interest.

131 I1).-- ATTORNEY'S FEES-DEFENSE OF LIEN CLAIMS-RECOVERY BY OWNER AGAINST SURETY ON BOXds.--Where a building contract has been abandoned and the building completed by the owner as permitted by the contract, the owner in an action on the contractor's bond may recover money paid for attorney's fees in defending actions to recover upon lien claims.

141 ID.— JUDGMENT-ATTORNEY'S FEES-PAYMEXT.--The fact that a part of the attorney's fees for which compensation has been allowed in the judgment has not been actually paid by the plaintiff does not affect his right to recover therefor.

Appeal from the Superior Court of Los Angeles County-Leslie R. Hewitt, Judge.

For Appellants-J. Wiseman Macdonald.
For Respondent--Kenton A. Miller, Frederick W. Smith.

The plaintiff, as owner of two lots in the city of Los Angeles, entered into a contract with the defendant, Carlin G. Smith, as contractor, for the construction of a building on said lots. At the same time the contractor as principal, and the other two defendants as sureties, executed a bond to the plaintiff as owner.

com

The conditions of the bond were that the contractor "shall keep and strictly perform all the covenants and agreements of the contract by him to be kept and performed and shall on or before thirty-five days after the acceptance of said building on pletion of said contract cancel and release the said building and premises from all claims of liens that may have accrued against the same in and from the performance of said contract, and shall save said owner free and harmless from all damage therefron, all as in said contract provided". The judgment covers items allowed as damages for delay in completion of the building, and compensation on account of attorney's fees and costs incurred by the plaintiff in actions brought for the foreclosure of certain liens growing out of the performance of the contract. From that judgment the defendants appeal.

The defendants in their answers alleged that the plaintiff was not at the time said bond was given, nor was he at any time subsequent thereto up to and including the time of bringing this action, the owner of the land on which the buildings were constucted, or of the buildings erected thereon. The court found that these allegations were not true. Appellants contend that this finding is not supported by the evidence, and that the plaintiff is not the real party in interest and therefore is not entitled to maintain this action. At the trial of the case it was stipulated that during all of said time the record title to the property described in the contract was, by virtue of a deed from a third person, in the name of Fannie Cohn, wife of the plaintiff. The plaintiff testified that when the lots were purchased he gave his personal check for the price paid, and that his wife did not pay anything for them, and did not pay anything to the plaintiff for them when the property was placed in her name; and that he did not intend to give the property to her. He further stated that he paid for everything connected with these two buildings and that she did not pay anything for their construction.

It is our opinion that the court's finding is sustained by the evidence. The lots having been acquired in the name of Fanzie Cohn, were presumptively her separate property, but this not a conclusive presumption. [1] The court was entitled to receive and consider any competent evidence which tended to disclose the manner of acquisition of the property, and from the acts and conduct of the husband determine whether the transaction whereby the property was conveyed to the plaintiff's wife constituted a gift to her. (Killian v. Killian, 10 Cal. App. 312.)

We are further of the opinion that the defendants are estopped to deny plaintiff's ownership of said property. The plaintiff entered into the contract as owner and as owner expended his money for the buildings. The giving of this bond was part of the inducement to him for entering into the contract. 12] The obligors named in the bond should not now be heard to deny his title and thereby escape their liability. As to them he should conclusively be presumed to be the real party in interest.

The building contract contained the following paragraph: "Sixth: Should the contractor at any time during the progress

was

of said works, refuse or neglect to supply a sufficiency of materials or workmen, the owner shall have the power to provide materials and workmen (after three days' notice in writing given) to finsh the said works, and the reasonable expenses thereof shall be deducted from the amount of said contract price.” The court found that the contractor at a stated time abandoned said buildings and thereafter refused to furnish material or labor therefor; and that the work was completed by the owner after due notice to the contractor in accordance with the contract. Appellants claim that the notice required by the contract was not given, and that without giving notice to the contractor the plaintiff wrongfully took possession of the premises and ejected the contractor therefrom; that thereby the sureties on the bond were released from their obligation. Edelman and Barnett were the architects named in the contract, under whose direction and supervision and subject to whose approval the work was to be done. Mr. Barnett testified that at the time the contractor ceased to work, Barnett, acting for the owner, served upon the contractor a written notice notilying him to finish the buildings. The so-called notice was produced in evidence by the plaintiff; not the paper served on the contractor, but the copy retained by the architects.

This copy, which was signed by the contractor only, purports to be a stipulation between Edelman and Barnett, architects, and Smith, contractor, and sets forth certain items of work which must be done beiore the architects will accept the buildings. The stipuiation then states that “is the hereinabove mentioned items are not finished within three days, then the said architects shall have the privilege of completing the same, paying the necessary expenses thereof”, etc. The copy retained by the contractor was not signed. About one week later, the contractor having failed to proceed with the work, the architects, under instructions from the owner, proceeded to complete the buildings. Upon these facts appellants base their contention as stated. We think that the stipulation was in substance a notice in writing within the terms of the contract Although not signed by the owner, it was given by his authority and was accepted by the contractor as the equivalent of a signed notice and as being in fact a notice in writing. Under these circumstances the inere failure of the owner to sign the written notice does not operate to prevent it from being a notice in writing. The acts of the owner, in proceeding upon the theory that such notice had been given as required by the contract, did not constitute any substantial alteration of the obligations, rights or remedies of the parties. Therefore we hold that there was nothing in the facts shown which operated to exonerate the sureties from the obligations of their bond.

[3] It is next suggested by appellants that the plaintiff was not justified in paying attorney's fees in defending actions to recover upon lien claims filed against the premises on which these buildings were constructed, and that such expenditures do not fall within the terms of the bond. As found by the court, lien claims were filed by numerous laborers and materialmen, and actions

« PreviousContinue »