Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1883-08-04
IMPORTANT DECISION.
Which Nay Effect All Builders, Contract

Which Nay Effect AL Builders, Contract
ors, Property. owners Dealers. Etc.
| It is well known that under the present
law it has been generally claimed that par
son having building constructed upon his
premises by contract was liable, even after
he had paid the contractor in full, for any
materials which went into the building, and
for which the contractor had failed to pay,
| thus holding him TO pay double Tor the i'm.
provement. There is no question but that
this would be the plain reading Of the law.
| but the Supreme Court saves the situation,
| by declaring in the case of Latson va. Nelson
| that such could not have been the intention Of
the legislature, and that it would be IN con
! PREVENTION Of rights declared inalienable by
| the Constitution. The decision, which will
be of interest TO al, is given in full, as fol-
lows:
The plaintiffs claim lien on certain premises Tor
the value of materials furnished for and used IN the
construction Of q building erected on the premises.
The complaint AYERS that the defendant Nelson, as
contractor was erecting the building for the defend
ant Thaytr, and as such contractor purchased the
materials and agreed 10 pay the plalntfts therefor
Tho defendant, Thayer. IS not connected With the
purchase OF the materials other than IS claimed to
result from the contrac5 for the building and as
| owner OF the premises It IS not alleged that any
amount is due, or is to come due OF payable from
defendant Thayer to defendant, Nelson on the
contract or in any other way. The plaintiffs assert
that under Article XXX Section 10, OF the Constitu-
ton Of 1879 ana Section 1888, c. Q. P, as amended
ia 1880 they have a len, independent OF any con-
tract or obligation existing between the original
parties.
The Act Of AIsrch 80, 1868, provided that persons
performing labor upon furnishing materials for
any building etc, should have lien upon the
for the work OF labor done, materials furnished,
whether done or furnished at the instance of the
owner his agent and for the purposes OF the Act
the contractor or other person having charge of the
construction was declared to be the agent Of the
owner In constituting this Act, this Court held, in
Renton W. Conley, 40 Cal, l85, that the material
men and laborer5 could not charge the buildings
with liens exceeding the balance OF the contract
price rena ming unpaid when notice OF the lien was
gwen.
In framing the Constitution of 1879, the Conven-
ton had before It the statute OF 1865 and the de-
csion of this Court above referred to, with others
Of similar import and declared, upon the subject
of liens OF this character Art XA, Sec Is q Me.
chanics, material men, artisans, and laborers Of
every class, shall have lien upon the property upon
which they have bestowed labor or furnished ma
teral for the value Of such labor done and material
furnished and the Legislature shall provide, by
law. for the speedy and efficient enforcement OF
such liens p"
In obedience to this mandate the Legislature, in
amending Section 1888, c. c. P. (Which section, pre-
yious to the amendment was in substance the same
the Act of 1SGs above stated in effect repeated
the provisions OF the Constitution, but added there
to the following This lien shall not be affected
BY the fact that no money is due to become due
on any contract made by the owner with any other
party"
Il under this last clause that the plaintiffs claim
their lien.
In the former Constitution there was no provision
ia reference to liens in favor Of material men and
laborers the subject was left TO the wisdom of the
Legislature but the Convention of 1879 saw fit to
insert in the new Constitution the clause above
Ofad IN doing the former statute being he
fore the Convention, with the construction placed
upon it by this Court, we must presume that the
Observation-Disclosures ntinue and make permanent
the statuts heretofore existing, with the cOnstruc
ton it had received and that the Convention die
not intend to enlarge but to fix. The last clause of
Section 1888, c. G. P. amendment of $780, would
operate very much enlarge and extend the provision
Of the Constitution; indeed it was commended for
the plaintiffs on the oral argument, that owner
of property could make no contract with
tractor viii h would relieve him Of any amount of
labor or materials the contractor might see fit to
have performed or placed on the building under
construction or repair that if A, an owner OF a
lot wished to construct house, say of the value
and cost of 5000, and should make contract to
that end with B., material men and laborers en-
ployed by B. could place $40 GOO worth OF materials
and labor on the building, and have liens therefor
(proviled fraud intervened) and that
the owners only safeguard was, either to purchase
and employ in person, or take security from the
contractor. We do not think the Convention H.
tended that result nor 90 think the Legislature,
in amending Section 1888, C. c. p, could 90 beyond
the provision of the Constitution If A shall con-
tract 10 pay 5000 to B. for the construction Of
building the Legislature may secure the distribution
of the agreed sum among the persons furnishing
materials and performing labor but this authority
does not necessarily include the rcng of obliga
ton upon A. which he never contemplated. 1t is
said that the has full security in the right to
require bond of the contractor that no liens shall
be created So far as that is any argument, it may
with equal force be said that the material may
require payment security of the contractor before
parting with his goods.
Another prov sion OF the Constitution, Article
Section l. declares that all men have certain nalien-
able rights, among which are those of acquiring,
possessing and protecting property This provision
would lose much Of its force if a of limited
means, having lot and desiring to build home,
while contracting within his means, could have cast
upon his land burdens beyond his necessities wishes
and pecuniary ability.
The demurrer was properly sustained. The judg
ment is affirmed. MYRICK, J.
| concur ROSS, j.
We concur in the judgment:
McKTNcTRV