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Pacific Lumber Co. v. Wilson

6 Cal. App. 561 Court Second Appellate District. Decision date 1907-10-04 Docket Civ. No. 365 English

Delivered by ALLEN, P. J.

Contents

Majority

p. 561
[Civ. No. 365.
Second Appellate District.
October 4, 1907.]
PACIFIC LUMBER COMPANY, Respondent, v. F. R. WILSON et al., Defendants; ESTHER E. RICHMOND, Appellant.

Headnote

Mechanic’s Lien—Foreclosure Against Owner—Knowledge of Improvements—Notice to Agent—Support of Finding.—In an action to foreclose a lien for materials furnished under contract with one in possession for the improvement of a building, as against the owner, who was absent during the improvements, and who posted no notice disclaiming responsibility under section 1197 of the Code of Civil Procedure, a finding that the owner had knowledge of the improvements before their completion is sustained by evidence that her son was her authorized agent to collect money due on the contract, and to attend to her business during her absence, and that he had notice of the improvements during the progress of the work, Knowledge of an agent as to matters affecting the property is knowledge of the owner.
Id.—Construction of Findings to Support Judgment.—Findings of. the trial court are to receive such construction as will uphold rather than defeat the judgment, and if there is any evidence to support the findings thus construed, the judgment is sustained.
Id.—Attorney’s Fee Improperly Allowed.—The allowance of an attorney’s fee incorporated in the judgment foreclosing the lien was improper, and will be ordered stricken therefrom.
APPEAL from a judgment of the Superior Court of Riverside County, and from an order denying a new trial. J. S. Noyes, Judge.
The facts are stated in the opinion of the court.
Purington & Adair, for Appellant.
M. Estudillo, for Respondent.

Action to foreclose a mechanic’s lien. Findings and judgment for plaintiff:. Order denying a new trial. From the judgment and order defendant appeals.

The undisputed facts are, that in September, 1905, defendant Richmond was the owner of the premises involved,

p. 562
subject to an executory contract of sale therefor entered into between defendant Richmond and one Wilson; that no stipulations were contained in said contract with reference to possession, but it appears that Wilson took possession; that defendant was absent from the city of Riverside, where said premises are situate, from September 12th until October 15th; that during such absence Wilson purchased material with which to make certain additions and alterations to a house on said premises, and completed the same on September 20, 1905. Defendant, after obtaining knowledge of such improvements, posted no notice disclaiming responsibility therefor, as provided by section 1192, Code of Civil Procedure. Plaintiff’s claim of lien was filed December 15, 1905.

The court finds that defendant had knowledge and notice of the repairs, additions to and alterations of said building. When such notice was given or obtained is not definitely stated.

If appellant’s contention be correct that the knowledge mentioned in section 1192, Code of Civil Procedure, refers only to knowledge acquired before completion, still under the rule that the findings of the trial court are to receive such construction as will uphold rather than defeat the judgment (Breeze v. Brooks, 97 Cal. 76 , [ 31 Pac. 742 ]), the find ing as to knowledge is susceptible of a construction that defendant had knowledge during the progress of the work; and if the evidence supports such finding, thus construed, the judgment is sustained. There is satisfactory evidence in the record that, notwithstanding defendant’s absence during the progress of the work, the son of defendant, a business man, was authorized by the defendant to collect the moneys due defendant on the contract as it matured, and to look after the business of the defendant while she was away. This was sufficient authority to constitute the son an agent of the mother. Knowledge of an agent as to matters affecting the property is knowledge of the owner. (Clowdis v. Fresno Flume etc. Co., 118 Cal. 315 , [ 62 Am. St. Rep. 238 , 50 Pac. 373 ].) It was in evidence that as early as the middle of September the son had notice by telephone that Wilson was making repairs on the house. This was during the progress and before the completion thereof. While we do not desire to be understood as holding, that appellant’s contention that

p. 563
want of knowledge at the date of completion absolves the owner from giving the notice specified in the statute, we think a proper construction of the findings, supported by the evidence, renders the decision of that question unnecessary.

We find no error in the record, other than the allowance of an attorney’s fee of $25 incorporated in the judgment. This attorney’s fee was improperly allowed.

The court below is directed to strike from the judgment that portion thereof allowing attorney’s fee to the lien claimant; and as so modified the judgment, as well as the order, is affirmed.

Shaw, J., and Taggart, J"., concurred.

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