Hammond Lumber Co. v. Yeager

The plaintiff brought this action to foreclose a mechanic’s lien for the value of building materials furnished to defendant Yeager as contractor for the construction of a dwelling-house on the real property of the defendants Woods.

The cause of action was fully maintained under the evidence, with the exception that it was found that plaintiff’s claim of lien was not filed in time, and judgment was rendered for the defendant.

The controversy on this point arises upon a dispute as to the time of the completion of the contract. The trial court found that the plaintiff’s contract for furnishing materials was fully performed and completed on or about the twentieth day of September, 1917, and that the building was completed on the twenty-eighth day of September, 1917, and that the defendants Woods paid the contractor, Yeager, the completion payment under the contract for the erection of said building on the said twenty-eighth day of September, 1917, and that said defendants Woods accepted said building as completed and entered into its use and occupation on said date, and ever since said date have continuously occupied and used said building for the purpose for which it was built, to wit, as their private home; that no notice of completion of the construction of such building has ever been filed of record, but that more than ninety days since the said completion of said building has elapsed before the date of filing of the mechanic’s lien sued upon herein.

Section 1187 of the Code of Civil Procedure provides: “ . . . and, in all cases, any of the following shall be deemed equivalent to a completion for all the purposes of this chapter: the occupation or use of a building, improvement, or structure, by the owner, or his representative; or the acceptance by said owner or said agent, of said building, improvement, or structure, or cessation from labor for thirty days upon any contract or upon any building, improvement or structure or the alteration, addition to, or repair thereof; the filing of the notice hereinafter provided for. ...”

In the case at bar the evidence is undisputed that the defendants accepted the building as completed on the twenty-eighth day of September, 1917, and on that date entered into the possession and occupancy thereof and had

Appellant’s contention that the building was not completed until the twenty-sixth day of October, 1917, is based upon the undisputed fact that after such acceptance and occupancy it was discovered by the contractor that certain wood-stone work constituting the floor of the bathroom and the sinks in the kitchen, composed of a chemical composition, were defective by reason of the fact that the chemicals were improperly mixed. The contractor, believing and claiming that such work would rapidly deteriorate, persuaded both the owner and the subcontractor who laid the wood-stone work to replace the same. The work of replacement was completed October 26, 1917. The appellant’s contention is that the removal of the defective work and its replacement was a part of the original contract and that the time for filing liens began at the time the work was finally replaced by good material, and that, therefore, its claim of lien having been filed within ninety days after October 26, 1917, it was filed in time.

[1] The question as to whether or not a building has been completed is a question of fact and not a question of law. It is provided in section 1187 of the Code of Civil Procedure that “Any trivial imperfection in the said work, or in the completion of any contract by any lien claimant, or in the construction of any building, improvement or structure, or of the alteration, addition to, or repair thereof, shall not be deemed such a lack of completion as to prevent the filing of any lien; ...” [2] What constitutes a trivial imperfection is a question of fact to be determined by the trial court under the conditions and circumstances of each case (Willamette etc. Co. v. College Co., 94 Cal. 229 , 238, [ 29 Pac. 620 ]; Bianchi v. Hughes, 124 Cal. 24 , 27, [ 56 Pac. 610 ]). This finding can only be overturned when it can be said that there is no substantial evidence to support it (Harlan v. Stufflebeem, 87 Cal. 508 , [ 25 Pac. 686 ] ; Schindler v. Green, 149 Cal. 752 , 755, [ 87 Pac. 626 ]). [3] No doubt any imperfections in the performance of the work which were of so trivial a character as to permit the contractor to recover for substantial performance notwithstanding such defects would be trivial imperfections within the meaning of section 1187 of the Code of Civil Procedure.

There have been a number of recent decisions by this court upon the subject of substantial compliance in the case of building contracts and there has been a tendency to a more liberal view of that subject than formerly. These cases are cited in the recent case of Thomas Haverty Co. v. Jones, ante, p. 285, [ 197 Pac. 105 ]. In the case of Rischard v. Miller, 182 Cal. 351 , [ 188 Pac. 50 ], the contractor was allowed to recover for a substantial performance of the contract although there were much more serious imperfections than in the case at bar. It is clear from the foregoing cases that the trial court was justified in finding that there was a substantial performance of the contract on September 20th. This performance was followed by acceptance and occupancy and payment of the installment due upon the completion of the building on September 28th.

[4] That the contractor subsequently replaced the work defectively done at a cost of $35.50, instead of paying damages in that amount by way of deduction from the contract price, does not alter the fact. that the work had been substantially completed on September 20th and accepted as such on September 28th.

We conclude, therefore, that the finding of the trial court that the building was completed September 20, 1917, is sustained by the evidence.

Appellant also claims that the defendants are estopped from contending that the 26th of October is not the date of completion because of certain conversations between appellant and the contractor with relation to the completion of the building. These conversations were testified to by R. C. Johnson, collector and credit man for the appellant. He

[5] Appellant’s claim is that the contractor was the agent of the owner and that his representations were consequently binding upon the owner and operated to estop the owner from claiming that October 26th was not the date of completion. This contention is based upon that portion of section 1183 of the Code of Civil Procedure reading as follows: “ . . . every contractor, subcontractor, „ architect, builder or other person having charge of the construction, alteration, addition to or repair either in whole or in part of any building, or other improvement as aforesaid shall be held to be the agent of the owner for the purposes of this chapter.” There is nothing in the chapter which requires the owner to inform the materialmen as to the date of the completion other than by filing a notice of completion. The statute does not purport to give authority to a contractor or architect to represent the owner in fixing the date of

There is nothing in the point that the owner by withholding and refusing to pay the contractor the thirty-five day payment under his contract until he had settled with all lien claimants, including the plaintiff, was a “eotemporaneous construction” by the parties to the contract that the building was not accepted until October 26, 1917.

Judgment affirmed.

Shaw, J., Lennon, J., Olney, J., Lawlor, J., and Angellotti, C. J., concurred.