The record-union., 1891-02-21
SUPREME COURT DECISIONS.


For respondent, Shaw & Holland.
DEPARTMENT TWO.
The GIANT POWDER Com
PANY, Appellant.
VS.. : No. 13 906.
The SAN Diego FLUME
COMPANY, Respondent.
This action was brought against Joseph
Johndrew can original contractor for
the San Diego Flume Company and That
corporation, to recover a judgment for
the value of materials furnished the con-
tractor, which were used in his work
upon the structure for the f1ume COM
Pany, and 10 enforce a material mans
hen upon the structure, under Section
ils3 OF the Code of Civil Procedure.
The evidence and the findings indicate
that. after the 9th day OF
June, A. D. 1887, there existed a
valid contract between the contractor and
the owner. (Tr. fols. I60-l6l), so that as to
All materials furnished after that date
the plaintiff could file its lien claim, by
virtue OF the existence of the contract.
me court below seems to have pro-
ceeded underthis impression, and to have
pased It's decision, which was against the
PlalniltI, so far as the right to enforce its
Hen was concerned, or any other claim
against the Flume Company, upon the
tneory that its claim of lien had been
nled before the acceptance, completion,
use or occupation of the structure. ac-
cordIng to the terms of Section LIST of the
Code OF Civil Procedure, as amended IN
1881. CTR. fol. 179).
Lhe plaintiff appeals from the judg-
Hleht against it in favor of the Flune
Company, and from an order refusing q
new trial.
Does the evidence sustain the findings;
that the plaintiff filed its lien claim be-
lore the defendant had accepted. used or
occupied The work which the contractor
mao lett IN an uncOmpleted state?
ne work which the contractor was to
perform was the grading of fiume bed.
surface bitches, and tunnel approaches,
from The defendants diverting dam on
tne san Diego River to its proposed city
reservoir near San Diego, and the excava-
tien OF about three thousand lineal feet of
tunnels, and lining the same with
masonry, and also timbering same in ac-
coroance with the plans and specifiea-
tons. (FoIs. 6t-G6
Thus it will be observed the contractor
was not to complete the hume, or to make
complete the proposed water works of
tne defendant. But only to prepare the
fnereaIter placed. He was to lay the
foundation, as it We're, on which the
hume was to rest. In this respect the
WerS to be done was somewhat similar 10
lhe laylng OF foundation on which to
erect a house.
u. ".
the contractor abandoned his contract,
ana ceased all work Hereunder; that two
or three days after that the fiune COM
pany took possession of the fiume line
upon which the contractor had been
working, and proceeded to complete the
WORK Which he had left unfinished. tFols.
1854, $50. But the court finds that it
, neither used nor occupied the tunneling
grading and work, which JohndreW had
agreed to DO. (Fol. 167). Nor did it on or
ABOUT the 10th ofAugust, 1887, or at any
Tune, or at all, ever accept the structure
which Johndrew. had been engaged in
constructing for it, or accept the uncom-
pleted part thereof." Col. 165).
Inc part Of Section 11S7, G. C. P, here
involved reads: 49, and in case of
contracts the occupation or use of the
building, improvement, or structure by
the owner or his representative, or the
acceptance by said owner or his agent of
SAID building, improvement or structure
snail be deemed conclusive evidence of
completion"
The provision seems to have been en-
acted In the interest of and for the better
! protectlon OF lien claimants like the
! plaintiff.
The words of the statute occupy or
use" or accept have reference not only
TO the occupation, use or acceptance of a
dwelling or other house, bat to any kind
OF structure, building or Improvement,
have been used. What then is to be
deemed their meaning, with regard to the
lmattet in hand?
= The facts appear to be that the con-
Lactor, on or about the 9th of August,
gSo7, was unable to go on with his work
Then, or day or two thereafter, the
defendant made an arrangement by
which the contractor was to be alb
solved from his obligation under the
contract, which was to be abro-
gated, and the defendant was to pay a
certain proportion of his debts, on colidi-
hons, not including that of the plaintiff
ana TO have and retain certain property
belonging to the contractor. It thereupon
took control and possession of tire work,
SInd proceeded to complete it. (Fols POI,
5D3 207, 263, go, 229, 255.)
The defendant having gotten rid of the
contractor by this arrangement, domi-
mated, controlled and applied TO it's uses
the uncompleted work of the contractor,
pin the prosecution of which the materials
of the plaintiff had been used 1t occu-
pied the work, so far as could be done, in
its then state. But 1t used and occupied
his work after the rescission of its con-
tract with the contractor, making this
work subServient to its purposes in COM
pletlng tho structure. 1t took from the
contractor what he had done of the work.
and also certain property of his, released
him from his contract, and agreed to set
tlC oOiLlC vi uGDiSs Ut OlS. .sDU, ~
Il IL II released the contractor, took his
kwork and some of his property, and
agreed to pay some of his debts this
would appear to be in certain sense an
acceptance of his work. 1t did not occupy
and use the work in the sense that it was
complete according to the terms of the
contract, but, after the contractor was re-
\ leased, 1t used and occupied it as the con-
J tractor had done before. His responsi-
blllty on the contract to the defendant
! was ended, the latter took his work and
Hother property and proceeded under this
agreement TO use and occupy the work
agreeing at the same time to pay certain
proportion of the contractors debts
That is, it took and used, under agree
= ment with him, what he had left, and alb
solyed him from his contract.
The lien claim was filed on the 9th of
September, 1887, within thirty days
after the acceptance, use and occupation
above stated.
Under our view Of the stasute this was
suflclent, the contractors connection
with the defendant was completed and
ended, the defendant accepted the work
he had done, used and occupied it so far
as 1t was capable of being so used or occu-
pied. The findings are not supported bv
the evidence.
We think the Judgment and order
should be reversed and so advise.
FooTE, c.
We concur:
NANCLIEF, c.,
BELCHER, C.
THE COURT.
For the reasons given in the foregoing
opinion the Judgment and order are re-
versed.
CoNCURRING OPINIONS.
concur in the Judgment of reversal
solely upon the ground that, in my opin-
ion, the main points in controversy were
settled against respondent on the former
:, appeal 9o Cal. 1888, and the law of the
a1AIlllAs -,