Peterson v. Freiermuth

This is an appeal from the judgment entered after and upon the order sustaining a demurrer.

The action is for the foreclosure of a lien upon certain property for labor and materials furnished in the alteration and remodeling of certain buildings situated on said property.

It appears from the complaint that the respondents are the owners of certain real estate situated in the city of San Francisco; that said respondents leased said property to the defendant Overman, and that the latter held and enjoyed the possession of the same, as lessee under the lease so executed, from the first day of August, 1906, up to and including the sixteenth day of July, 1907.

The complaint further alleges that, on or about the twenty-second day of August, 1906, the plaintiff entered into a corn-

It is alleged that said contract was oral or verbal, and was not signed by the parties thereto; that the same or a memorandum thereof was never recorded in the office of the county recorder of said city and county of San Francisco.

The complaint further alleges that the respondents, and each of them, had knowledge, on or about the twenty-second day of August, 1906, of the remodeling and reconstruction of the buildings on the real property described in the complaint, and of the furnishing of materials for said purpose and the performance of labor on said buildings by plaintiff,

The work under said oral contract with Overman was completed by the plaintiff on the fifteenth day of May, 1907, and on the eleventh day of May, 1907, the last named filed and recorded his claim of lien in the office of the county recorder.

The demurrer is both general and special. The grounds of the special demurrer are that the complaint is uncertain, unintelligible and ambiguous in the following particulars: That it cannot be ascertained therefrom whether the contract referred to therein “was an oral or a written contract”; that it cannot be ascertained therefrom whether “the plans and specifications” mentioned therein are signed by the parties to the contract, and that it cannot be told from the complaint whether said “plans and specifications” were recorded, and, “if so recorded, when and where recorded.”

We think the complaint is amenable to the criticisms of the special demurrer, but, as we are further of the opinion that the pleading wholly fails to state a cause of action of any character against the respondents, it will not be necessary to give extended notice to the grounds of the special demurrer.

The first proposition advanced by the appellant is that the plaintiff was only a materialman, and that, therefore, he is entitled to a lien for the value of the labor bestowed upon and the materials furnished in the making of the improvements described in the complaint. If this contention be sound, the complaint would manifestly state a cause of action for the enforcement of the lien filed upon the premises for the value of such materials. (Code Civ. Proc., sec. 1183.) We think the proposition is untenable. The complaint directly alleges that by the contract between Overman and the plaintiff the latter agreed to provide all the labor and furnish all the materials necessary for the making of the alterations and improvements as specified and in accordance with certain plans and specifications; that the plaintiff did perform all the labor and provide all the materials for that purpose, and that the actual cost of said labor and materials, with the addition of ten per cent provided for by the agree

Tested by the rules thus stated, it seems to be very clear that there can be no room for doubting that the plaintiff was an original contractor. Under the terms of his contract with Overman, as we have seen, he was to raise the old buildings on the premises to a height of eighteen feet above the level of the street, to remodel said buildings, to ppt in new brick foundations, wood columns, girders, etc., to roof and floor the entire ground of said premises, to put in partitions in four stores, to install patent chimneys, etc., and to ‘ ‘ furnish all of the necessary labor and material to be used to fully complete the work,” etc.

The facts alleged in the complaint here are materially different from those in Sparks v. Butte Co. Grav. M. Co., 55 Cal. 589 , where it was alleged that the appellant merely furnished “certain materials to be used ... in the construction of a certain building,” etc. The case here is also wholly

But in the case of La Grill v. Mallard, 90 Cal. 373 , [ 27 Pac. 294 ], it was held, in an action to foreclose a mechanic’s lien, that a person who contracts to paper and decorate several rooms in a building and furnishes the material is an original contractor.

Speaking of the two cases last mentioned, the supreme court, in Bennett v. Davis, 113 Cal. 337 , [ 54 Am. St. Rep. 354 , 45 Pac. 684 ], says: “The labor required to place the engines and machinery in proper position in the ease of Hinckley v. Field’s Biscuit etc. Co., 91 Cal. 136 , [ 27 Pac. 594 ], was evidently much greater than the labor performed in La Grill v. Mallard, 90 Cal. 373 , [ 27 Pac. 294 ], but relatively to the material furnished it was much less. In the one case the material was not only the principal thing, but compared to it the work was trifling. In the other, the work was the important matter.”

In the case at bar the relative amount or value of the labor and materials does not appear from the complaint, but it is evident, from the extent of the alterations and the different kinds of work required to make them, that the labor to be performed was the principal feature of the contract. The complaint most certainly does not disclose that plaintiff merely agreed to sell Overman materials. He was to perform the labor and furnish the materials for the completion of a specified contract, according to certain plans and specifications, and we can see no distinction between such a contract and one by which a contractor obligates himself to the owner of property to construct thereon a building and furnish the necessary labor and materials therefor.

That the contract in this case is one which does not entitle the contractor to a lien on either the fee in the property or the leasehold interest of Overman therein, whatever that may amount to, is a proposition as to which there can exist no degree of doubt. Of course, it follows that the plaintiff cannot maintain an action for the enforcement of his pretended lien upon the premises.

Section 1183 of the Code of Civil Procedure, among other things, provides: “ . . . All such contracts shall be in writing when the amount agreed to be paid thereunder exceeds one thousand dollars, and shall be subscribed by the parties thereto; and the said contract, or a memorandum thereof, setting forth the names of all the parties to the contract, a description of the property to be affected thereby, together with a statement of the general character of the work to be done, the total amount to be paid thereunder, and the amounts of all partial payments, together with the times when such payments shall be due and payable, shall, before the work is commenced, be filed in the office of the county recorder of the county, or city and county, where the property is situated; otherwise, they shall be wholly void, and no recovery shall be had thereon by either party thereto; and in such case, the labor done and materials furnished by all persons aforesaid, except the contractor, shall be deemed to have been

We need not quote from the numerous decisions of the supreme court to show that the language thus extracted from section 1183 of the Code of Civil Procedure means precisely what it says. It will be enough to say that the decisions uniformly hold, as the code section plainly declares, that all contracts, or proper memoranda thereof, between the owners and original contractors for labor to be performed and materials to be furnished, where the amount agreed to be paid under such contracts exceeds the sum of $1,000, shall be wholly void unless the same be in writing and, before the commencement of the work, filed as said section requires. (Willamette etc. Co. v. College Co., 94 Cal. 229 , [ 29 Pac. 629 ]; Morris v. Wilson, 97 Cal. 644 , [ 32 Pac. 801 ]; Craig v. Riordan, 99 Cal. 316 , 319, [ 33 Pac. 913 ]; Donnelly v. Adams, 127 Cal. 44 , [ 59 Pac. 208 ]; Laidlaw v. Marye, 133 Cal. 170 , [ 65 Pac. 391 ]; Smith v. Bradbury, 148 Cal. 41 , [ 113 Am. St. Rep. 189 , 82 Pac. 367 ]; Burnett v. Glas, 154 Cal. 249 , 255, [ 97 Pac. 423 ].)

And in the case of Burnett v. Glas, it is said, following many previous adjudications of the proposition by the supreme court, that where a building contract provides that the construction of the building shall conform to certain plans and specifications, the latter constitute an essential part of the contract and must be filed therewith, otherwise there is a failure to file the contract within the contemplation of section 1183 of the code. The complaint in the case at bar alleges, as we have shown, that the work to be performed under the contract was to be in accordance with certain plans and specifications, and that such plans and specifications were not filed with the recorder for recordation. Had the contract, specifying the contract price and the terms of payment agreeably to the code requirement, been in writing and filed, and the filing of the plans and specifications therewith had been omitted, such omission would have vitiated the contract. The contract, moreover, as to payments of the contract price, does not, according to the averments of the complaint, comply even approximately with the requirements of section 1184 of the Code of Civil Procedure. The complaint alleges that it was agreed between the parties to the contract that the

But it is urged by appellant that, if he has not stated a case for the enforcement of a lien on the premises, the respondents are, nevertheless, personally responsible and liable, and that against them the allegations of the complaint disclose a cause of action in assumpsit. Therefore, it is contended, the demurrer should not have been sustained. If the position of appellant as thus declared were sound, there could be no doubt that the complaint would stand as against the demurrer. But we think the point cannot be maintained. The argument in support of this point is that, since the complaint shows by its averments that the improvements to be made and which were made upon the buildings under the contract between Overman and the plaintiff “were of such a character as that the same attached to and became a part of the realty,” and further alleges that the sum sued for constituted “the reasonable value of said materials and labor,” a cause of action is, therefore, stated against the respondents on an implied contract, and that, by reason of their failure, as alleged, to give the notice required by section 1192 of the Code of Civil Procedure, they are estopped from denying such contract or their personal liability.

In reply to these contentions, it is first to be remarked that there is absolutely no showing made by the complaint that the respondents authorized the improvements called for by the contract between Overman and Peterson, or that respondents were in any manner connected with said contract. There is, in other words, no privity of contract disclosed by the complaint to have existed between the respondents and Overman, or that the latter acted as their agent in contracting with Peterson for the making of the improvements. So far as we are advised to the contrary by the complaint,

In the second place, we think that counsel’s construction of section 1192 of the Code of Civil Procedure is erroneous.

Said section provides, among other things, that “every building or other improvement mentioned in section one thousand one hundred and eighty-three of this code, constructed upon any lands with the knowledge of the owner . . .

It is very clear that the effect of failure on the part of the lessor to post the notice prescribed by the foregoing section is merely to entitle the contractor to a lien upon the fee in the demised real property, and not to impose a personal liability upon the lessor. This announcement is in consonance with the decisions. (Phelps v. Maxwell’s Creek Gold Mining Co., 49 Cal. 336 ; West Coast L. Co. v. Newkirk, 80 Cal. 275 , [ 22 Pac. 231 ]; Russ Lumber Co. v. Newkirk, 87 Cal. 596 , [ 25 Pac. 747 ]; Buell v. Brown, 131 Cal. 158 , 161, [ 63 Pac. 167 ]; Hubbard v. Lee, 6 Cal. App. 602 , [ 92 Pac. 744 ]; James on Mechanics’ Liens, sec. 121.)

Under the provisions of section 1185 of the code, where the lessor of property, upon which the lessee has constructed improvements, has given the notice required by section 1192 of said code, the leasehold interest of the lessee is subject to the lien for the value of the labor and materials, provided, of course, that the contract for the construction of the building has been reduced to writing and recorded as required; but there is no language either in section 1185. or 1192 of the Code of Civil Procedure imposing upon the lessor, or the owner of the property, in such a case, a personal liability for the labor and materials bestowed upon the work. This is not to say, however, that a personal liability does not exist against someone, for, indeed, one does so exist, but it arises, not from the provisions of our mechanic’s lien act, but “upon general principles of law, and irrespective of the provisions of the act.” (Phelps v. Maxwell’s Creek G. M. Co., 49 Cal. 336 ; West Coast L. Co. v. Newkirk, 80 Cal. 275 , [ 22 Pac. 231 ].)

Thus it will be observed, as sound principle dictates, that, in order to personally bind the respondents here for the consequences of the contract between Overman and the plaintiff, it should have been shown by clear and direct averments that

We see no possible ground upon which the complaint may be held sufficient as against th@ demurrer, and the judgment is, accordingly, affirmed.

Chipman, P. J., and Burnett, J., concurred.