The record-union., 1891-02-09

now, and during all the time herein spe-
Gifted, was the owner of the lot of land on
which the building was erected, and all
thereof is necessary for the convenient
use and occupation of the building; that
on or about the Doth day of June,
1888, the building was completed. and
thereafter, on the. 18th day of July fol-
lowing. plaintiff, for the purpose of Sc
curing and perfecting lien for the mon
eys SO due upon the building and land
described, under the provisions of Chap
| ter IL, Title w., Part Ill, of the Code of
Civil Procedure, filed for record in the
Recorders Office of the county in which
the property was situated, its claim of
| lien, which was duly verified and three
days later duly recorded, and copy of
which, marked Exhibit Az was at
tached to and made part of the COM
plant.
Defendant Garrettson demurred 70 the
complaint on the ground that it did not
state facts sufficient to constitute q cause
OF action 'for the reason that the instru-
ment set forth il said complaint as 'Ex-
| hiblt Al and purporting to be a notice of
claim filed for record in the Recorders
Office, does not comply with the statute
in such cases made and provided, mas
much as there are no words or clauses
contained therein which set out a claim
OF lien on certain property to be charged
| herewith, and the statement OF demand
is entirely wanting;" and also on the
ground that the complaint was ambictl-
Gus. uncertain and uninteliigible, for
| the reason that 1t appears upon the COM
pialnt that the contract therein was for
an amount exceeding one thousand dol
lars from the sum of money therein SET
| forth, and from the fact that Wanberg tS
Nelson are made party defendants;
| but 1t does not state whether there
was written contract filed IN accord
ance with law, OF set out said contract i'll
| the complaint as the best evidence"
The demurrer was oNerruled and he then
answered.
The case was tried and judgment rem
dered foreclosing the lien, as prayed for.
From that Judgment Garrettson alone aD-
! pealS, without any statement or bill of eX-
cepuons.
1t is argued for appellant that the COM
plant was insufficient, because there was
no averment as to what was the contract
price between the owner and contractors,
| or that there was any express agreement
TO pay anything, or as to what was the
| reasonable value of the work to be done;
and hence, it is said, there was nothing to
show that any sum ever became due un-
der the contract from the owner to the
| contractors.
| 1t is true that neither the contract price
nor the reasonable value of the work was
specifically set forth in the complaint :
gave Garrettson written notice that it had
agreed to furnish the materials there be-
came and was due and owing from him to
the contractors, on account of the con-
tract, an amount in excess of the balance
due and unpaid to the plaintiff. was a
statement OF conclusions of law rather
than OF facts. And, OF course, this state
ment, II tested by demurrer, would have
been insufficient. 1t was, however, not
SO tested, nor was it in any way traversed
| by the answer. The point seems to be
made here for the first time. Under such
circumstances, we think, the complaint
should be held sufficient in this regard
In this connection it is suggested that
If Garrettson agreed to pay price for the
erection of his building and the amount
exceeded 81 GOO, the contract was void
unless properly recorded, and if the
amount was less than 81 ,000 he was not
required to reserve % per centum thereof
for thirty-fiye days after the building was
completed, but could pay the price at any
| time, and in any way agreed on by the
| parties. And it is said, for aught that ap-
pears in the complaint, the price may
have been fully paid before the work
commenced, or may have been prior
Indebtedness. But the statute, after pro-
yiding that if the contract price exceeds
81, ,OOO, the contract, or a memorandum
| thereof, must be recorded or otherwise
be wholly void, goes on to say, land in
such case the labor done and materials
furnished by all persons aforesaid, except
the contractor, shall be deemed to be
| done and furnished at the special instance
OF the owner, and they shall have lien
for the value thereof" (Sec. 11S3, C. C.
p And the next section (Sec. 1854, C. G.
| 20 has this provision: ANY of the per-
sons mentioned in Section 1lS3, except
the contractor, may at any time give to
the reputed owner written notice that
| they have performed labor and furnished
materials, or both, to the contractor, or
| other person acting by authority of the
reputed owner, or that they have agreed
to do SO, stating in general terms the kind
OF labor and materials, and the name of
the person to or for whom the same was
done or furnished, or both, and the amount
| and value, as near as may be, of that
already done or furnished, or both, and
or the whole agreed to be done or furn-
| ished, or both Upon such notice
being given, it shall be the duty of
the person who contracted with the con-
| tractor to, and he shall, withhold from
his contractor, or from any other person
acting under such reputed owner and to
whom by said notice the said labor or
| materials, or both, have been furnished,
or agreed to be furnished, sufficient
money due, or that may become due to
such contractor, or other person, to an
swer such claim and any lien that NAV be
| filed therefor for record under this chap
ter, including counsel fees not exceeding
one hundred dollars in each case, besides
| reasonable costs provided for in this
chapter"
Under these provisions, whether the
contract was recorded or not, if proper
notice was given, and if sufficient money
was then due, or afterwards became due
from the owner to the contractors, to pay
the plaintiffs claim-and that sufficient
did become due is not denied or ques-
tloned-lt was the duty of the owner to
withhold the same from the contractors,
and the plaintiff is now entitled to have
his claim of lien therefor enforced.
But it is urged that it does not appear
what were the contents of the notice given
by the plaintiff to the owner, and that it
should therefore be held insufficient to
meet the requirements of Section 1854 of
the code. The complaint alleges that the
pla intih furnished the materials to be
used in the construction of the building,
stating in general terms the kind of ma
terials, at the instance and request of the
contractors, naming them, and that the
amount agreed to be paid for all thereof
was 81, liz SO. 1t is then alleged that the
plaintiff gave to the owner of the prop
erty written notice that it had agreed to
furnish the materials as aforesaid. ETC.
The words "as aforesaid" evidently re-
ferred to the materials and the persons to
whom they were furnished and the value
thereof as before stated, and hence we
think the notice must be held sufficient.
1t is also objected that the complaint
must allege that claim of lien has been
verified and filed, containing certain
statements, and that the complaint is in
sufficient in this respect. 1t was alleped
thata claim of lien was verified and filed, |
and copy thereof was attached to and
made part of the complaint, and
whether it contained the required state
ments or not was shown by the lien itself. |
1t is further objected that the claim of |
lien is defective in that it does not purport
to charge the property, nor state the name |