Opinion
Rehearing Denied April 18, 1931
Hearing Granted by Supreme Court May 18, 1931
Appeal from Superior Court, Los Angeles County; William Hazlett, Judge.
On rehearing.
Former opinion modified, and judgment of lower court modified, and, as modified, affirmed.
For former opinion, see 295 P. 552. COUNSEL
Ray W. Bruce, of Los Angeles, for appellant.
Frank G. Swain, of Whittier, for respondents.
OPINION
PER CURIAM.
Upon further consideration of this cause, we conclude and hereby approve all that was said in the opinion filed herein on January 19, 1931, and reported in 295 P. 552, making some modification of the judgment and adding thereto as follows:
Under the provisions of section 1183 of the Code of Civil Procedure, the owner of the premises involved in this action is held to be the principal actor, and the person or persons to whom the premises were leased were at all times acting as agent or agents for the owner, in so far as the lien law of this state is concerned. The second paragraph of section 1183, Code of Civil Procedure, after providing for liens in favor of persons performing labor upon or furnishing property consumed in mining claims, reads as follows: "And every contractor, subcontractor, superintendent or other person having charge of any mining or work or labor performed in and about such mining claim or claims or real property worked as a mine, either as lessee or under a working bond or contract thereon shall be held to be the agent of the owner for the purposes of this chapter."
The case of Berentz v. Belmont Oil Mining Co., 148 Cal. 577, 84 P. 47, 113 Am.St.Rep. 308, expressly held that oil locations are brought within the category of mining claims, within the meaning and intent of the paragraph of section 1183, Code of Civil Procedure, from which we have quoted. The opinion in the Berentz Case, with reference to the application of section 1183, Code of Civil Procedure, is too long to be quoted, but a reading of that case shows clearly that the premises involved in this action is a mining claim, within the terms of the lien law, and therefore, the premises upon which development work is performed, or structures erected for the purposes of development work, are subject to mechanics’ and laborers’ and materialmen’s liens, and the owner of the premises cannot avoid liability by posting notices. See, also, the case of Arctic Lbr. Co. v. Borden (C.C.A.) 211 F. 50.
Appellant calls our attention to the case of Cortelyou v. Baker, 182 Cal. 168, 187 P. 417, where the court held that the provisions of section 661 of the Civil Code are inapplicable to claims prospected for oil. This may be admitted, but we do not perceive how a reference to sluice boxes and kindred articles has any bearing upon this case. The lease of the premises involved in this action, among other provisions, contains the following: "Together with the exclusive right and privilege to explore for, mine, excavate and obtain oil, asphaltum, petroleum, natural gas, tar, and any and all other hydrocarbon substances and kindred products from, upon, in and under the said premises," etc.— a clear recognition that the premises were to be mined, and mineral products extracted therefrom.
It is further contended that the allegations and proof relative to the claim of De Priest are insufficient, in that the allegation is as to the amount of the contract, and the proof only that the contract was fully completed. However, nothing appearing to the contrary, and no question being really made as to the value of the services performed, the following cases show that such proof is sufficient:
In Wood v. Niemeyer, 185 Cal. 526, 197 P. 795, 799, it is said: "Since the memorandum in question was a memorandum of the agreement of the parties concerning the property to be conveyed, the statements therein contained were some evidence of the value of the personal property transferred"— citing a number of cases. No evidence was introduced by the defendants to contradict or offset these statements.
To the same effect is the case of Sanders v. Austin, 180 Cal. 664, 182 P. 449, 450, where the contract was for a certain sum, the allegation that it had been fully performed, etc., in the absence of contradictory testimony, the contract was held sufficient evidence of value. The court said: "But the testimony being in, it has sufficient probative value in the absence of any counter testimony whatever to sustain the finding of the court." The finding of the court was as to value.
In Union Hollywood W. Co. v. Los Angeles, 184 Cal. 535, 195 P. 55, 56, the court said: "The cost of a thing is evidence of its value, especially where it appears that it is comparatively new and where it has no established market value," etc.— citing a number of cases, including those to which we have referred. See, also, the case of Bringham v. Knox, 127 Cal. 40, 59 P. 198, 199, where it is said: "It is urged that since the contract between Knox and Bowen was void, and since for that reason the plaintiff could claim his lien only for the value of the materials furnished by him, and not for the contract price agreed on with Knox (Code Civ.Proc. § 1183), therefore both the claim of lien and the complaint are insufficient, in failing to allege the value of plaintiff’s materials. It was, however, stated in the claim that the agreed price was 18 cents apiece for the ties. This statement was a sufficient showing, prima facie, of their value."
It is further contended by the appellant that the court erred in allowing interest prior to the entry of judgment. This contention is well taken. On the first cause of action, to wit, the claim of the Barr Lumber Company, the court allowed the sum of $240.45 as interest, preceding the day of judgment. On the second cause of action, to wit, the claim of W.E. De Priest, the court allowed the sum of $115.03 as interest, preceding the day of entry of judgment. This was error. American-Hawaiian, etc., Co. v. Butler, 17 Cal.App. 764, and cases cited on page 768, 121 P. 709; Mabrey v. McCormick, 205 Cal. 667, 272 P. 289; Grass v. Rindge Co., 84 Cal.App. 750, 258 P. 673; Macomber v. Bigelow, 123 Cal. 532, 56 P. 449.
It is therefore ordered that the sum of $240.45 be stricken from the amount allowed in the first cause of action, and interest allowed only on $1,463.90 from the date of the entry of judgment.
It is further ordered that $115.03 be stricken from the second cause of action, and interest allowed on the sum of $690 at the rate of 7 per cent. per annum from the date of the entry of judgment.
In all other respects the judgment is affirmed. The appellant will be awarded his costs.