Watson v. Alta Investment Co. — 12 Cal. App. 566

Majority

p. 566

[Civ. No. 773.

First Appellate District.

February 8, 1910.]

SAGE WATSON, Appellant, v. ALTA INVESTMENT COMPANY et al., Respondents; WESTERN FUEL COMPANY, Intervener, Appellant.

Headnote

Building Contract—Destruction of Building by Fire—Contract to Share Loss—Notice to Owner to Withhold Money Due.— Held, that, for the reasons set forth in case No. 401, supra, this appeal being taken by the plaintiff and the intervener upon the same transcript, a notice given by the intervener to withhold moneys due to the contractor after destruction of the building by fire, under the agreement to share the loss, was ineffectual, there being nothing due from the owner to the contractor, and that the judgment and order in favor of the respondents must be affirmed.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. Geo. H. Buck, Judge presiding.

The facts are stated in the opinion of the court,

Olney, Pringle & Mannon, James Alva Watt, and Max Thelen, for Appellants.

A. G. & H. K. Bells, and W. F. Williamson, for Respondents.

This is an appeal by the intervener, Western Fuel Company, from the judgment in favor of the defendants, and from an order denying its motion for a new

p. 567

trial, and is taken on the same transcript as case No. 701, ante, p. 560, [ 108 Pac. 48 ], bearing the same title, which we have this day decided. It grows out of the same transaction, and is argued in and submitted upon the same briefs.

The intervener furnished materials to Watson Bros., the plaintiff’s assignors, to be used in the construction of the building giving rise to the controversy in said case No. 701; and long after the destruction of the building it served notice on the owner, the Alta Investment Company, to withhold any moneys that might be due by it to defendant Crichton. But we have this day affirmed the judgment of the lower court in favor of defendants Alta Investment Company and Crichton, by which it was adjudged that there was nothing due from said company.

For the reasons stated in the opinion in said case No. 701 for affirming the judgment and order in that case, the judgment and order in this case should be affirmed, and it is so ordered.

Hall, J., and Cooper, P. J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 7, 1910.