Los Angeles daily herald., 1889-08-30
FRIDAY, AUGUST 80, 1883
Impertant Lien Decision.

been instituted in this city for claims for
lien upon houses built by contract has
done much to retard improvement, as the
decisions have invariably been against
the owners. 1t seems to have been a
generally accepted conclusion that, no
matter how careful or cautious one may
be when about to build, the law is so un-
certain in its provisions that the party
building is sure to be harrassed
with lien suits when the structure
is completed. There seemed to be no
way in which one could protect himself
il his contractor turned out to be dis
honest man. The decisions in the Su-
perior Courts had 30 uniform termina-
ton against the owners that many con-
templating builders abandoned their pur-
pose, both to the injury of the city and
the narrowing of the already restricted
chances for the employment of mechan-
ics and laborers.
The principal reason in the law for the
contentious that have arisen was to be
found in that provision of the Act, as
amended by recent Legislature, which
requires that the contract to build should
be filed with the Recorder before
the work on the building had
been commenced. The Courts have so
strictly construed this provision that
great hardship has ensued to owners.
There are many contingencies which
may arise preventing an owner to file his
contract before work has been COM
menced. In some cases an eager and
designing contractor. in order to have
power over his principal and to scrimp
the work, has had load of lumber or
bricks placed upon the lot before the
owner had time to file his contract, and
the commencement of work has been
successfully pleaded in the Courts. But
generally eagerness to get into the house
or ignorance of the law has led people to
permit work to go on, and in these cases
they have been made to severely suffer
The object Of the law is un-
doubtedly to give notice to sub.
contractors and material men of the
extent of responsibility of the principal,
and to enable them to see if the contract
price is sufficient to cover their demands.
But if that is the case, we fail to see the
reason why parties who make sub-con-
tracts and furnish material subsequently
to the filing of the contract-even
although work had been commenced
should be permitted to take advantage Of
q failure to file before the beginning of
work on the structure. They certainly
are advertised of the extent of the princi.
pals responsibility, and should not be
permitted to take advantage of prior
laehes of the owner which could
not possibly work them any
injury. The practical effect of
the law, as it has been generally con-
strued, has been to protect tricksters
and dishonest men and "cinch" those
who have tried to make impr ovements
in good faith.
In the case of Carey, et ais.
VS.. Ayers. decided by Judge Van
Dyke in Department of the
Superior Court, Wednesday, the
law has had just and more equitable
consideration in its application to owners
than has heretofore, as far as we know,
been the case. The history of this case
as applied to the commencement of wor k
was this: The defendant accepted the
bid of contractor to build a house on
the condition that he would furnish
responsible sureties. The contractor
furnished a bond with two names,
and the owner reserved his ac-
ceptance until he could make inquiry as
to their sufiiciency. He found they were
men of straw. Other names were then
furnished which turned out to be of the
same clase. In the meantime the con-
tractor had gone on the lot and proceeded
to work on the foundation. The owner
served a written notice on him that he
must cease work, as he had not furnished
satisfactory bonds. The contractor paid
no attention to this, but continued work.
The owner then went personally on the
lot and compelled the stoppsge of the
work. The contractor then furnished
the owner with satisfactory bond,
and the contract was Immediately filed.
At the completion of the structure liens
were placed upon the building by ma
terial men to an amount equal to the
contract price first agreed upon by the
owner, and which, less 25 per cent had
been duly paid. In the trial of these
lien quits, the plaintiffs denied that the
contract protected the owner, because it
was not filed before work was COM
menced. There was an array of eight or
nine attorneys on that side of the case.
Col. A. B. Hotchkiss, who was the only
counsel to represent the defense, set up
that there was no delivery and no ac-
ceptance of contract until satisfactory
bonds had been furnished. and therefore
that work was commenced in fraud of the
owner. The Court held that the
contract was filed as soon as
the owner had received satisfactory
sureties, and that the fact that the con-
tractor had commenced work and con.
continued it before he had
. valid contract with the owner would |
not operate to the prejudice of the de-
fendant. Legal work on the building |
,nly began when the owner received q
perfected and satisfactory contract and
bond. This decision leaves the plaintiffs |