Interstate Lumber Co. v. Rightman — 112 Cal. App. 718

Majority

p. 718

[Civ. No. 7663.

First Appellate District, Division One.

March 21, 1931.]

INTERSTATE LUMBER COMPANY (a Corporation), Appellant, v. MARCUS RIGHTMAN, Respondent.

John F. Poole for Appellant.

Wolfson & Swarthe for Respondent.

This is an appeal from a judgment in favor of respondent Rightman in an action to establish and foreclose a materialman’s lien.

Respondent Rightman is the owner of a certain store building and let a store therein to L. C. Parslow Stores Co. The Parslow Company purchased lumber and similar material from appellant of the value of $260.60, which was used to equip the store for use by it. Appellant claims that the judgment is erroneous because the evidence shows that the material was all affixed to the building. The evidence does not so show, however. The witness Morris, called by appellant, testified that there were eight or ten tables which were not attached to the floor in • any way, and there is also evidence from which the court could conclude that at least some of the counters and shelves were not affixed to the building.

p. 719

The burden was on plaintiff to show just what material was affixed to the building and its value. We have searched the record in vain for any evidence from which the trial court or this court could determine what part of the material furnished was affixed to the building or what was its value. Appellant “could not assert a lien for materials of uncertain value and amount”. (Hammond Lumber Co. v. Pile, 202 Cal. 624 , 625 [ 262 Pac. 715 ] ; McClain v. Hutton, 131 Cal. 132 , 141, 142 [ 61 Pac. 273 , 63 Pac. 182 , 622].)

Judgment affirmed.

Tyler, P. J., and Cashin, J., concurred.

Cases cited

Hammond Lumber Co. v. Pile 202 Cal. 624 Cal. 1927-12-14 at 625 p. 719
McClain v. Hutton 131 Cal. 132 Cal. 1900-12-27 at 141, 142 p. 719