Wilson v. Barnard

Ross, J. This action was brought to enforce a lieu alleged to have accrued under and by virtue of the provisions of the act approved March 30, .1878, entitled “an act giving a lien to loggers and laborers employed in logging camps, upon the logs cut and hauled by the persons who employ them,” as amended by the act approved April 12,1880. (Stats. 1877-78, 747; Stats. 1880, 38.) The first point made for the appellant, which we think must be sustained, is that the complaint does not state facts sufficient to constitute a cause of action. In Rosenkranz v. Wagner, 62 Cal. 151, and in other cases in this court, it was held that because of the failure of the complaint to allege that anything was due from defendants to the original contractor when plaintiff’s lien was filed, or that defendants were notified or had any knowledge of the claim of plaintiff prior to the payment in full of the amount due to the original contractor under the contract, that there was a failure to state a cause of action. But it is contended on behalf of the respondent that the decisions under the Mechanics’ Lien Act are inapplicable to cases arising under the Loggers’ Lien Act, because by the latter act it is provided that the liens given “shall-take precedence of other claims” for the period of thirty days after the logs or lumber arrive at the place of destination, etc. But, manifestly, the giving of precedence of one class of liens over all other claims does not extend the liability of the party against whom all of the liens and claims go; that is to say, the owner of the property sought to be charged. The contracts of material-men and laborers with the original contractor are made with reference to his contract with the owner, and in subordination to its terms. (Dingley v. Green, 54 Cal. 336.) It results that the owner cannot be charged beyond the contract price. (Latson v. Nelson, 11 Pac. C. L. J. 589; Whittier v. Hollister, 64 Cal. 283.) In the brief of counsel [424] for plaintiff it is said that Barnard & Co., who were the contractors and who employed the plaintiff to work, “ were converting trees on appellant’s land into lumber, and after transporting, sealing, measuring, and marking the same, would, if quality and all things were satisfactory to appellant, receive an agreed price per thousand feet”; and that plaintiff’s lien was filed against certain lumber prior to its delivery and prior to the payment by appellant of the agreed price therefor. The complaint contains no such averment with respect to payment, for which reason the demurrer thereto should have been sustained. Judgment and order reversed and cause remanded, with directions to the court below to sustain the demurrer to the amended complaint, with leave to the plaintiff to amend further. Morrison, C. J., Myrick, J., Thornton, J., and McKinstry, J., concurred.