Kelley v. Plover

Haynes, C. This action was brought by plaintiffs as copartners, to enforce a lien for materials furnished by [36] them to the contractors, Kirlan and Brady, for the repair of buildings owned by appellant Plover. Plaintiffs had judgment, defendant’s motion for a new trial was denied, and this appeal is from the judgment and the order denying a new trial. Kirlan and Brady, the contractors, and several fictitious persons, were named as defendants, but were not served and did not appear, and no disposition of the cause was made as to them. No objection was made in the court below to proceeding with the trial of the cause, and by section 579 of the Code of Civil Procedure the court was authorized to render judgment against the appellant without determining the liability of the other defendants. The claim or notice of lien, filed in the recorder’s office, contained the following: “The following is a statement of the terms, time given, and condition of said contract, to wit: 50 M. 1½ P. laths, $175.” (Stating each item of the claim.) “ Terms cash on completion of contract.” Appellant contends that this statement does not comply with the statute, and cites Hooper v. Flood, 54 Cal. 219. There the statement was: “ That the terms, time given, and conditions of said contract are and were cash”; and it was held that this statement was not a compliance with the statute; that the word “cash” did not express the terms, time given, and conditions of the contract. But here the word “ cash ” is followed by the words “on completion of the contract”; so that the time and manner of payment are expressed; and it cannot be presumed, in the absence of allegation and proof, that these did not include all the conditions of the contract. In Tredinnick v. Red Cloud Con. Min. Co., 72 Cal. 80, the statement was, “ that the terms of payment for said labor were cash as soon as said labor was performed.” Held, sufficient. In Blackman v. Marsicano, 61 Cal. 638, the words were, “ Cash upon demand, in gold coin of the United States.” The court distinguished the case from Hooper [37] V. Flood, 54 Cal. 219, and held the statement sufficient. See, also, Hills v. Ohlig, 63 Cal. 104, and Jewell v. McKay, 82 Cal. 151, 152. The court did not err in admitting the notice in evidence. The contract between the owner and Kirlan and Brady, below the signatures of the party, had written thereon the following: “We witness and secure the performance of this contract for the second party. Kelley, Hare & Co., pr. J. W. Hodgkin.” The second parties to the contract were the contractors Kirlan and Brady. The defendant gave evidence tending to prove that the contractors did not complete the work they agreed to do, and that the work performed was badly done, and claims that plaintiffs had guaranteed the performance of the contract. Ho such defense was set up in the answer, nor was there any finding or request to find thereon, and if there had been, it would have been outside of the issues. Ho other points are made by appellant. The judgment and order appealed from should be affirmed. Vanclief, C., and Searls, C., concurred. For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed. Harrison, J., Garoutte, J., Van Fleet, J.