Rauer v. Fay

Searls, C. This is an action to foreclose a lien for street work performed under a private contract, and in which a lien was filed pursuant to section 1191 of the Code of Civil Procedure. Plaintiff had judgment, from which, and from an order denying his motion for a new trial, defendant appeals. The complaint is in the usual form; pleads a contract between defendant and one J. Gr. Duffy, the assignment — 364 — thereof to plaintiff by Duffy, the performance of the work by plaintiff, and the filing of the lien, etc. The contract and the contents of the lien are pleaded according to their legal tenor and effect, and not in hsec verba. The complaint counts upon a contract to grade the south half of Chestnut street, from Jones street to Leavenworth street, San Francisco. The answer, after denying a number of the allegations of the complaint, proceeds to aver that prior to April, 1892, defendant had procured to be graded all the portion of Chestnut street in front of his property by third parties, and had paid therefor; that portions of the street in front of property of other parties remained ungraded; that Duffy desired defendant to sign a contract with him for the grading of the whole of Chestnut street, from Jones to Leavenworth street, for the purpose of enabling him, the said Duffy, to procure a permit from the superintendent of public streets, etc., of said city and county for doing said unfinished grading; that Duffy thereupon agreed that if defendant would sign said contract for said purpose, that he, the said defendant, should not be held liable for the payment of any portion of the price of such grading; that thereupon defendant signed the contract for said purpose only, and that said Duffy then and there made, executed, and delivered to defendant a full acquittance and discharge from any and all liability on said contract by reason of defendant signing the same, etc., stating, in terms, that the grading on the south side of the street in front of defendant’s property was already done, and that plaintiff was fully informed of all the above facts before he performed any work upon the street. The answer further alleges that the contract, in terms, required the grading of the whole of the street, but that prior thereto the entire north half thereof had been graded by third parties. Defendant further alleges that the assignment of the contract by Duffy to plaintiff was as collateral security for a loan, and that the former still has an interest — 365 — therein; that no work was done under the contract in front of defendant’s property, etc. The answer also avers that Duffy commenced the work of the unfinished grading, and finished one-half thereof before the assignment of the contract to plaintiff. The record in the case bristles with irregularities, uncertainties, and errors, for which the judgment and order appealed from must be reversed. 1. The complaint and notice of lien, as filed, are predicated upon a contract for grading the south half of Chestnut street, between Jones and Leavenworth. There was a written contract entered into April 25, 1892, between J. G. Duffy, as a contractor, and the defendant and others, which contract was subsequently assigned to plaintiff. This contract was offered in evidence, and is as follows: “ This agreement, made and entered into this 25th day of April, a. d. 1892, by and between J. G. Duffy, of the city and county of San Francisco, state of California, party of the first part, and certain owners of property, lots, and land fronting on Chestnut—$ street, between Jones and Leavenworth streets, in the city and county ■ above mentioned, whose names are hereunto subscribed, each contracting severally, parties of the second part; “ Witnesseth, that the said party of the first part, for and in consideration of the covenants of the said parties of the second part, hereinafter expressed, promise, cove- - nant, and agree to and with the said parties of the second ' part that he will furnish all the materials and perform the work of constructing, in a good and workmanlike manner, in front of the property here represented, and to the satisfaction of the superintendent of public streets of said city and county. To grade to official line and grade for the sum of five dollars ($5) per front foot. “And the said parties of the second part, in consideration of the premises, each for himself, or herself, and. not for the others, promises, covenants, and agrees to and with the said party of the first part that he or she will pay to the said party of the first part, upon the com — 366 — pletion of the work aforesaid, his or her pro raía share of the total cost of the above described work, together with the incidental expenses, according to the ratio that his or her frontage bears to the whole frontage here represented, and in accordance with the rule established by the street law. “ In witness whereof, the said parties to these presents have hereunto set their hands and seals the day and year aforesaid. J. G. Duett, [l. s.] “Contractor. “ No. feet fronting on each street: Clara Finley per John Finley............ Feet. 137 Inches. 6 Johanna H. Wright per Selden S. Wright.. Daniel Rogers and R. C. Bolton, Executors of the Last Will and Testament of James 46 0 R. Bolton, deceased................... 49 6 David Fay............................. 80 0 R. G. Welsh............................ 100 • 0” From the foregoing it will be observed that the only ■direct allusion to the street is in speaking of the “ certain owners of property, lots, and land fronting on Chestnut £ street,” etc. The only obligation of the contractor is to furnish the material and perform the work of constructing in a good and workmanlike manner in front of the property represented, and to “ grade to official line and grade” to the satisfaction of the superintendent of streets. What is to be graded can only be inferred. If it is the street and one-half of it, what half? The contract is silent on this question. Possibly; had the contract been set out in the complaint, with proper averments of the intention and object of the parties, it might upon proof have been so reformed as to be available as a basis for a recovery. As it stands, it is too uncertain and indefinite to entitle it to be admitted in evidence under the allegations of the complaint, and appellant’s objection to its admission should have been sustained. 2. It is established by the evidence without contra — 367 — diction that a portion of the work of grading the south half of the street was performed by the contractor, Duffy, before the assignment to plaintiff. Defendant testifies that one-half of it was done by Duffy. Duffy himself testified that it was much less than half, and plaintiff testified that one-tenth part only was graded, yet his notice and claim of lien was for all the work of grading the south half of the street. This question was by the pleadings made an issue in the case, and under the evidence there should have been a finding thereon. It was a material issue, for the reason that while Duffy could assign his contract and thereby entitle the plaintiff to a personal judgment for any amount due him, he could not assign his right to a lien as security for the payment of what might be due him. A perfected lien may be assigned, or rather it passes with an assignment of the demand for which it stands as security. The mere right to take a lien in the present or future is not assignable. (Mills v. La Verne Land Co., 97 Cal. 254; 33 Am. St. Rep. 168.) If it be urged that the court below found that plaintiff performed all the work under the contract, the answer is that there is not a particle of evidence in support of such a finding, and the evidence is positive that he did not do it all. And as this finding is assailed, as well as the failure of the court to find the share or proportion of the grading performed by Duffy and the proportion by his assignee, the' plaintiff, the error is not cured. It is true that, when the court below came to pass upon defendant’s application for a new trial, it denied the motion upon condition that plaintiff remit ten per cent of the amount of his recovery, and it is said by respondent that this deduction was on account of labor performed by the original contractor. The record is silent as to the cause of the remission, and, in the face of the evidence, which showed that a small portion of the work was never completed, it may, with equal propriety, — 368 — be inferred that the required remission was on the latter account. 3. At the trial defendant, after proof of its execution simultaneously with the contract, offered in evidence the following paper executed by Duffy, the contractor: “ San Francisco, April 27,1892. “ This is to certify that I have no claim on Mr. Fay for any work performed on Chestnut street by Mr. A. E. Buckman, myself, J. G. Duffy, or assigns, in doing the balance of grading on Chestnut street. “ J. G. Duffy.” To the. introduction of which plaintiff objected; the objection was sustained and the ruling is assigned as error. We think that upon its face this document, which may be termed a release, was admissible. It may have been executed because the street in front of defendant’s premises had been graded by Buckman, the individual therein mentioned, and already paid for by defendant, or it may have been because such grading had been done, and that defendant was, as stated in the answer, only a nominal party to the contract to enable the parties in interest to secure a sufficient number or proportion of the landowners on the block to obtain a permit from the superintendent of streets to make the improvement. This, if done with the knowledge and consent of the other contractors, was in nowise a fraud upon them. If it was a secret or side agreement between the contractor and defendant, made in fraud of the rights of the other contracting parties, that fact was open to investigation, and upon a full inquiry the court could have readily determined the question. The mere fact that the plaintiff was not aware of this release at the time he took an assignment of the contract is of no moment. He must be deemed to have taken such contract cum onere, subject only to the duty of defendant to notify him of any conditions not specified in the contract itself, such as its full execution, payment thereunder, etc. — 369 — 4. The notice of lien as filed complied substantially with the requirements of the statute, and is deemed sufficient. The judgment and order appealed from should be reversed and the cause remanded, with leave to plaintiff to amend his complaint if he shall be so advised. Belcher, C., and Haynes, C., concurred. For the reasons given in the foregoing opinion the judgment and order appealed from are reversed and the cause remanded, with leave to plaintiff to amend his complaint if he shall be so advised. McFarland, J., Temple, J., Henshaw, J.