Majority
p. 125[No. 11444. Department One. July 12, 1886.] THOMAS McCANTS, Appellant, v. E. N. BUSH et al., Respondents.
Headnote
Mechanic’s Lien—Subcontractor—Lien for Balance Due—Liability of Owner.—Prior to the amendments of March 18, 1885, to the sections of the Code of Civil Procedure regulating the liens of mechanics, a notice by a subcontractor to the owner of a building which is being constructed that a balance is'due him on his subcontract from the original contractor does not impose on the owner the duty of retaining a portion of the contract price to satisfy any lien which the subcontractor might subsequently file.Appeal from a judgment of the Superior Court of Sacramento' County.
In 1884, E. N. Bush, being the owner of certain premises in Sacramento, contracted with Madden and Brennan to erect for him a residence thereon. Madden and Brennan employed plaintiff to do a certain portion of the work included in their contract, and to furnish the materials therefor. Upon the completion of the work, in November, 1884, Bush paid the contract price in full to
p. 126After the service of the notice, it was the duty of the owner of the building to have seen that the plaintiff was paid before paying the original contractors in full. (Renton v. Conley, 49 Cal. 188 ; McAlpin v. Duncan, 16 Cal. 127 ; Bowen v. Aubrey, 22 Cal. 571 .) The authorities cited by appellant were based upon the statute of 1862, which did not provide for the filing of a lien by a subcontractor, but permitted him to file a notice with the owner. The remedy of the subcontractor is now different. (Code Civ. Proc., secs. 1183, 1185, 1187.)
Madden and Brennan. On the 16th of October, 1884, the plaintiff served on Bush a notice to the effect that a balance was due him. under his subcontract with Madden and Brannan, and on the 6th of December, 1884, filed a claim of lien against the building, for the enforcement of which this action is brought. Judgment was rendered in favor of the defendants.
D. E. Alexander, and Jay R. Brown, for Appellant.
J. F. Damage, 8. Solan Uoll, Young & Dunn, W. H. Beatty, 8. C. Denson, and Matt. F. Johnson, for Respondents.
The facts on which the plaintiff sought to recover in this action all occurred before the amendments to the chapter of the Codé of Civil Procedure treating of the “Liens of Mechanics,” which were adopted March 18, 1885.
We agree with the court below that as the law then stood the service of the notice of the 16th of October, 1884, set forth in complaint, did not affect the rights of the parties, nor impose on defendant Bush the duty of retaining a portion of the contract price to satisfy any lien which the plaintiff might subsequently file.
Judgment affirmed.
Myrick, J., and Ross,.J., concurred.