The record-union., 1891-02-06

wGs agreed that payment should be at the
time OF delivery. No testimony that
there was such an agreement
The statement in the claim appears to
De nothing more than that the materials
were bought and furnished on the basis
that they were to be paid for on delivery
at what they were reasonably worth.
rms would be in effect giving the plant
his right to recover on a Quantunl
meruit. And while it may have been I'M
necessary to set out such contract in the
notice of claim of lien under the decision
inst cited, we do not think that such de-
cislon announces the principle, that
shall not be held to have filed notice OF
claim based upon Quaatuns meruit. The
evidence being that such materials as
We're asked to be furnished were fur
nished and delivered upon the order OF
Helm and Norton and Laird, the archi-
tect Tor Norton, that they were used in
the building of Norton, and that they
were reasonably worth 1888 80, and no
part OF that sum has been paid. Grams,
fol. lS0-1.) We can see no force in the
defendants contention on the point.
1t is further argued in reference to this
claim that there is variance of a fatal
nature between the notice of claim and
the complaint. That the notice treats the
contract between the contractor and the
owner as valid. That it does not allege
that tho contract or q memorandum
thereof was not filed, and in this respect
II differs from all the other notices Of lien.
That the complaint treats the contract as
void for want of filing. That in the notice
OF lien it is alleged that Helm, the con-
tractor, purchased the materials both as
contractor and agent of Norton; that in
the complaint it is alleged that he pur-
chased as agent only.
Tho, ~ 10
clded adversely to the contention made
here, in Lumber Co. VS. Gottscalk, 81 Cal.
641-646.
We perceive no merit in the points
made of the same tenor as to the G. HI.
Reed d Co. claim. Looking at the record
and the evidence, particularly as to the
value of the materials furnished and the
way in which they were purchased and
furnished. (Tr. page &C.,
AS to the l.. H. Simmons case, it is said
that the complaint does not state a cause
OF action; that it does not state that the
materials were used in the building.
There was no special demurrer filed to
this complaint, and the court found that
the materials were used in the building,
and the complaint set out that "said firm
sold and delivered to SAID Norton certain
hardware and building material to be
used in the erection and construction of
said building, and affixed and attached
thereto" (Tr. folio 36-7.)
Ii this hardware and building materials
were affixed and attached to the building
they must be said to have been used in
the erection and construction of it. Under
the circumstances we think the COM
plant was sufficient. There is nothing
in the cases cited by the appellant to sus-
tain his contention. &C. P. VS.. Blue Tent
{. III. &. NJ. % Pac. Rep. 39l; Sylvester
VS.. Coe Q. NJ. Co. lib, 2l7.) There is no
substantial variance between the notice
of lien and the evidence as to the con-
tract in this case.
1t is, commended further that the J. NJ.
Huyck complaint (Tr. fol. 9O) does not
state a cause of action, in that it omits to
state that the building was completed.
There is nothing in the point, as it is
fairly inferable from the language of the
complaint at folio 81, that the building
was completed when the notice Of lien
was filed.
AS to the point made of the variance
between the actual contract made with
Knight and the statement of the same in
the notice OF lien, it appears that it is well
taken. The notice sets out: "That the
agreement between he and said Norton
was that he was to be paid for said labor
done and furnished ut what they were
reasonably worth, to be paid for when the
work ceased" CTR. fol. 329.) The evil
dence is, on the part of Knight, that he
had an express contract with Norton to
do painting for $3.50; that he did a portion
of it and stopped because Norton refused
to pay him. He says: my contract was
to furnish all the material, and do all the
painting for $3.50. (Fol. 323 33332 The
other points made that there is variance
between the notice and the contract
proved as to the name of his employer,
and that the complaint does not show that
the building was completed when the
notice OF lien was filed, are without force.
The point seems to be made upon the
Mitchell complaint fol. 99) that it is not
alleged therein that the contract for fur
nishing the materials, ETC., was in writ
ing or filed for record, and that as it was
over 81 900 it was void. Mitchell was a
mere sub-contractor and material man,
and there is nothing in Section 11S3 G. C.
p, requiring contract of the kind he
had to be in writing or recorded, and
even if the contract between Norton and
Helm had been void, there was no neces-
sity for Mitchell to have had any written
contract or to have recorded it,
The defendant argues that the findings
are conflicting as to the completion of the
building at the time the notices of lien
claims were filed, and that the evidence
shows that they were prematurely filed.
We do not think either point well taken:
the building for thirty days on Decem-
Der 10, 1889, before the lien claims were
filed, and this is held to entitle such
claimants as are here involved to file
their notices of lien as they did. (Mill Il
Lumber Co. VS.. Olmstead, So Cal. 80.
But we do not think that the finding of
the court that the work was commenced
before the contract or a memorandum
thereof was filed in the Recorders office
Of the proper county. is sustained by the
evidence. The memorandum was filed
on the 18th of June, at 1U:30 O'clock A. NJ
While even admitting the plaintiffs view
of the testimony to be correct, which is
doubtful, that any work at all was COM
menced before this filing, it was of the
most trivia! nature, and was not COM
menced until at the earliest or $50 A. NJ
of the same day. 1t should be held
under the evidence that the filing of the
memorandum was before the work was
actually commenced.
The objection urged that the contract
as made is defective, is that the time
specified for payments Hereunder is not
in accordance with Section 11S4 of the
Code of Civil Procedure, which reads
thus:
mo part of the contract price slall, by
the terms of any such contract, be made
payable, nor shall the same or any part
thereof be paid in advance of the COM
mencement of the work, but the contract
price shall, by the terms of the contract,
be made payable in installments at speci-
fed times after the commencement of the
work, or on the completion of specified
portions Of the work, or on the compile
ton of the whole work. Provided, that
at least % per cent of the whole contract
price shall be made payable at least
thirtytive days after the final completion
of the contract. In case
such contracts do not con-
form substantially to the provisions of
this section, the labor done and the mate
rails furnished by all persons except the
contractor shall be deemed to have been
done and furnished at the personal in
stance and request of the person who