Fish v. McCarthy

Vancliee, C. — Action to enforce a mechanic’s lien. The court sustained a general demurrer to the complaint, and plaintiff declining to amend, judgment passed for defendant. Plaintiff appeals from the judgment on the judgment rojl, and contends that his complaint was sufficient. The complaint shows that the defendant, Mary McCarthy, in her character of guardian of the persons and [485] estates of Mary, Joseph, and Patrick Powers, minors, employed the plaintiff to repair a certain building, the property of her wards; that plaintiff repaired the building and furnished all materials necessary for that purpose; that the materials and labor were reasonably worth $120; and that he regularly filed with the recorder his claim and notice of lien. The wards are also made defendants, but the guardian is sued only in her official capacity. ' I think the following opinion of the learned judge of the trial court expresses the law of the case and should be adopted: “ This is an action to enforce a mechanic’s lien. The work performed, materials furnished, for the value of which the lien is sought to be enforced, was performed as per notice for the defendant, Mary McCarthy, guardian of the persons and estates of certain minors, who are also joined as parties defendant. Assuming that the allegation in question is equivalent to an averment that the defendant, McCarthy, as guardian of the minor defendants and on their behalf, made the contract in question, it seems clear that the defendant, as such guardian, could not subject the estate and property of her wards to a lien, such as' is here sought to be enforced, without first obtaining an order of court authorizing her to do so. The supreme court of this state, in Guy v. Du Uprey, 16 Cal. 196, 76 Am. Dec. 518, .have directly so held. And the same rule is maintained by other courts. (See Phillips on Mechanics’ Liens, sec. Ill; also Hunt v. Maldonado, 89 Cal. 636.) As the mechanic’s lien arises from work done and materials furnished under an obligatory contract, if the contract be not binding, the lien necessarily fails. An infant is not bound by his contract, except in certain cases, in which the erection of a building is not included.” (See also Phillips on Mechanics’ Liens, sec. 108; Schouler on Domestic Relations, sec. 351.) I think the judgment should be affirmed. Temple, 0., and Haynes, C., concurred. [486] For the reasons given in the foregoing opinion, the judgment is affirmed. Harrison, J., Paterson, J., Garoutte, J. Hearing in Bank denied.