The herald., 1893-02-10
A SUPREME COURT OPINION.
ut Settles Some Interesting
Law Points.
Antonio Gonzales Found Guilty of
Horse Stealing.
Wonzales' Naive Line of Defense-Notes 8
OF Gases Which Were on Trial
Yesterday = New Suits
on File.

ON File.
Deputy Supreme Court Clerk Sesnon
yesterday received an opinion affirming
tie judgment in the case Of the Giant
Powder company, respondent, vs.. The
San Diego Flume company, appellant.
The language of the opinion is as fol-
lows:
This appeal is from judgment rem
dered in the court below in favor of the
plaintiff. The action was brought to
obtain judgment against a contractor,
by a material man, for materials fur
nished in the construction of certain
works to be used to support the flume
of one of the defendants and appellant,
and against the flume company, to sub
ject the structure in which the materi-
ais were used to the statutory lien of the
plaintiff.
The case has been twice bsfore on ap-
peal in the supreme court, 78 CAL, 1913 !;
88 CAL, 20.
The point made for the reversal of
the judgment, on the judgment roll
alone, now is that the Judgment is not
supported by the findings.
The argument appearing to be that it
was held on the last appeal, which is
the law of the case, that there was no
valid contract existing between one
John Drew, the contractor, and the
fiume company until the contract was
filed for record on the 9Th of June, 1887,
and that as q consequence there was no
lien in favor of the material man against
the structure which had been accepted
by the flume company from the con-
tractor, although the materials were
used in the construction Of the accepted
work or structure.
The opinion filed at that time is not,
In our judgment, susceptible of any such
construction.
The pivotal point in that case was
whether or not the structure was COM
pleted by acceptance on the part of the
fume company, when abandoned to it
by the contractor, and thereby depended
the determination of the question as to
whether or not the filing OF the notice of
lien of the plaintiff was premature under
section 1857 OF the code OF civil proceed
ure, as amended March s, 1887.
That part of the section which makes
the acceptance of the structure or i'm
provement conclusive evidence of COM
pletion has reference to cases where
there is a valid contract between con-
tractor and owner of the structure, i'm.
provement or building. And the Ian
guage of the opinion which it Is errone-
ously claimed by appellant declares that
the payment of the value of the mate
ioIo f,r~v;ahnI hat
filed for record, cannot be enforced as a
lien, must be read with reference to the
precise matter which was being discussed
In the opinion, that is, whether, admit
ting valid contract to have existed by
virtue of the filing thereof for record on
the 9th of June, 1887, the notice OF lien
was premature or not.
There was no need to determine
whether lien could be enforced for ma
terials furnished. when no valid con-
tract existed, that Is before this con-
tract was filed for record. And the de-
,murrer only goes to the extent on chat
head, of determining that lien for
these materials furnished, "by virtue OF
the contract" /. Q. the filing of the
contract, could be enforced, if the no.
tice was properly filed for record. And
after that matter is disposed of, there
follow expressions merely which lead up
to the consideration of the real point in
the case, which was to be decided and
then the writer of the opinion proceeds
to dispose of the mooted question, in
favor of the proposition that the notice
was proper one, because the date OF
the acceptance of the structure, under
the circumstances of the case, was the
date of its completion, and the plaintiff
having filed notice of lien within 80
days after such completion, did not pro-
ceed prematurely.
But as to the enforcement of the lien
for the value OF the materials furnished
before there was any valid contract be-
tween the contractor and the owner, the
findings must be construed with refer
bnce to the case, and is now presented,
uncontrolled by ANYTHING said in the
former opinion, in So Cal.
The indings now show completion
Of the structure by it's acceptance, and
that notice of lien was filed in due
and proper time, and they also show
that the materials and the value thereof
claimed by the plaintiff to have been
furnished to the contractor, and used in
the completion of the structure, were 60
furnished and used.
1t was said by the supreme court in
Kellogg vs. Howes, 81 CAL, ITO, where a
contract was void because not filed for
record, and where material man sought
to enforce his lien:
The extent OF the material mans re.
covery is not measured by the terms of
the contract. On the contrary, the
statute provides in express terms that
where the contract is not recorded the
material man shall have lien for the
value thereof. In case the contract ia
not recorded, the statute, and not the
contract, measures the extent of hii
recovery.
The statute alluded to above (Sec
1883, @. @. P.) provided where an at
tempted contract is void for non-filinp
for record, that sin such case the labor
done and materials furnished by all per.
sons aforesaid, except the contractor
shall be deemed to have. been done and
furnished at the personal instance of the
owner, and they shall have lien fol-
the value thereof" The judgment ap
peRled from Is affirmed.
ANTONIO GONZALES TRIED.