The record-union., 1891-02-06

Luis Obispo County,. A. Gregg, Judge.
F,orappellant, Graves, Turner u Graves,
William Shipsey.
For respondent, J. NJ. WilcoXon.
DEPARTMENT TWO.
T.. III. REED EFT AL,
Respondents,
THOMAS NORTON EFT AL,
Appellants.
Eight actions were brought against the
defendants here-the owner of Il building,
Thomas Norton, and his contractor,
Thomas Helm-to enforce the liens of
certain mechanics and material men. Be-
fore trial they were all consolidated. The
contractor, Helm, made default. Norton,
the property answered, denying
all the allegations of the complaints eX-
cept as to his ownership of the property
on which the liens were sought to be en-
forced. Judgment passed for the plant
ifs, it being stipulated that there
should be no priority in favor Of
one claim over another, and that
all claims should be satisfied pro rata if
the money arising from the sale of the
property should be insufficient to pay all
IN full. CTR. folios 172-3.) From that
Judgment and an order denying. new
trial the defendant Norton appeals.
One reason urged for reversal of the
judgment and order is, that the finding as
to the notice of lien filed by the plaintiffs,
Smith d Waite, that it was ''in due form
as required by law' is not sustained by
the evidence.
1t is said in support of this contention
under Section ll87 of the Code of Civil
Procedure, in order to preserve the lien,
sets out that the materials to be furnished
and labor to be performed were to be paid
for on the basis of what they were reason
ably worth, and that the proof shows that
they We're furnished at an agreed contract
price, and that therefore the evidence dis
proves the contract set out in the notice,
and as the notice was fatally defective in
this respect, no lien attached that could
be enforced.
The notice does state the contract as
contended for by the defendant. The
evidence as to the matter is that given by
+. l.. Smith, one of the lien claimants, as
follows:
1--WE contracted with defendant Helm
to furnish this material. There was no
special contract except as to the price of
the material. We gave him a list Of what
we would furnish certain amount of
material for. We furnished Helm with a
list of the materials and prices, and most
of the materials were furnished by us
according to that list. Questionable
your firm agree to furnish all the mate
rial furnished in your line for S65S?' An
swer-'No, sir, we did not, most emphati-
cally. The list we furnished to Mr.. Helm
for that amount of material was taken
from portion of the plans from figures
that Mr.. Laird made on his plans that it
would require so much-So many feet of
each kind of material-and we gave him
figures on that and furnished it to him at
the figures we gave him; but we didn't
give him the figures for the whole amount
of material and all other things; but of
course we charged in the same proper
~ a = w 10 io1c
were reasonably worth the amount
charged"
From this it appears that certain por-
ton ofthe materials were furnished upon
special contract as to price, and that the
balance were furnished on the basis of
QudntuDl nseruit. Inasmuch as this
shows the finding to be wrong in stating
that the notice of lien complied with
Section 1lS7, c. c. p, giving the terms of
the contract under which the materials
We're furnished, at least SO far as part eff
them are concerned, the contention of the
defendant seems to be sound.
Neither is the finding, transcript folio
Ill, supported by the evidence that
the materials furnished or work done by
these plaintiffs were upon the agreement
OF the defendant, Helm, with the knowl-
edge OF Norton, to pay for them all at
whdt they acre reasonably north.
With reference to the claim of Schwartz.
dence shows that their notice of claim of
lien was not in legal form, as shown by
their evidence, and therefore the finding
that it is i'll due form is unsupported by
evidence, as well as the finding that the
contract was to furnish materials, ETC.,
for what they were reasonably worth.
1t is further asserted that the claim of
lien is at variance with the contract
proved, in that the former states that the
materials were furnished to Helm, and
that claimants were employed by both
Helm and Norton to furnish the same,
while the evidence of one of the plaintiffs
is: Il made contract about this lumber
with defendant Norton about June 10th.
The contract was made in this way: / met
defendant Norton and we talked over the
prices of lumber and the discount for
cash, and that was the only time ever
had any conversation with him about it;
and he said he was going to build house
and wanted to know what the price of
lumber would be. l had no conversation
with defendant Helm about it. never
transacted any business with him about
1t. VIM. Evans came after the lumber;
he brought the bill there. / gave no par
ticular time for payment. 1t was to be a
discount for cash. The amount charged
in the notice of lien is the reasonable
value of the lumber furnished; such as
we sell it for in the market in our lumber
yard. About August I'd, l went to de-
PENDANT Norton for payment. He said /
must get an order from defendant Helm.
/ got an order for 81 100, and Norton paid
it. 1 then talked with Norton about the
balance OF the bill; He said he and |
would deal about that bill. said had
nothing to do with Helm and had said
nothing to him about it, and he said he
and / would arrange about the payment
of that bill and pay the bill up in full and
the percentage be fixed afterwards. Since
we filed the lien he said he thought had
better take what could legally get. When
was furnishing the material heard that
Helm had the contract" transcript,
folioS, 2S6-7-S9
From this it seems that Norton did
make contract with the plaintiffs to
furnish the material, that it went into the
building that Helm, the contractor. was
erecting for Norton, and for which he got
1t from the material men, and that Helm
gave orders TO pay for il drawn on Norton,
which We're paid. Thus it would seem
that practically the materials were furn-
ished to Helm, that Norton originally
contracted for them, and Helm, by giving
an order for the payment, admitted his
liability to pay for them. How any iu-
jury could result to Norton from this
kind of a variance we do not perceive,
and therefore the statement of claim, so
far as it mentions the name of the person
by whom the plaintiff was employed or
to whom he furnished the materials, was
substantially the same as shown in evil
dence.
AS 10 the terms and conditions of the
contract, we think there is no substantial
variance between the statement in the
notice of claim of lien and the evidence.
As to the Reed, Smith & Co. claim it is
said by appellant that the contract as set
out in the claim of lien is different from
what the proof shows it to be, and as a
consequence the findings as to the nature
of the contract, and that it was in due
form, are unsupported by the evidence.