Opinion
Department One
Appeal from a judgment of the Superior Court of the City and County of San Francisco.
COUNSEL:
E. H. Wakeman, for Appellant.
John Flournoy, for Respondents.
JUDGES: Harrison, J. Paterson, J., and Garoutte, J., concurred.
OPINION
HARRISON, Judge
The respondent, La Grave, entered into a contract with his co-defendant, Kearns, for the construction of a building in San Francisco for the sum of four thousand nine hundred and fifty-six dollars. After performing a portion of his contract, Kearns, on the 24th of October, 1891, gave to the appellant written notice that he abandoned the contract, and declined to proceed further in its execution, and thereafter did no work upon the building. La Grave subsequently made a contract with another builder for completing the construction of the building. The building was completed December 21, 1891, and the entire cost of its completion was two hundred and seventy-four dollars more than the original contract price with Kearns. Prior to the abandonment of the contract by Kearns, certain materialmen had furnished him materials for the construction of the building, which were used therein, and for which, in January, 1892, they filed with the county recorder claims for mechanics' liens. These liens were assigned to the plaintiff, who brought this action for their enforcement.
The court finds that after the execution of the contract between Kearns and the respondent, and before work was commenced on the building, a sufficient memorandum of the contract was filed in the office of the county recorder, so that the right of the plaintiff to enforce his liens is limited by [36 P. 652] the contract between Kearns and La Grave.
Section 1187 of the Code of Civil Procedure provides that "every person save the original contractor, claiming the benefit of this chapter, must within thirty days after the completion of any building, file for record with the county recorder" his claim of lien, and that "cessation from labor for thirty days upon any unfinished contract. .. . shall be deemed equivalent to a completion thereof for all the purposes of this chapter." As Kearns abandoned the contract October 24, 1891, and as no work was thereafter done upon the building under said contract, it was incumbent upon those who would claim any lien by virtue of his contract with La Grave to file their claim of lien with the county recorder within thirty days after the 23d of November, and, as the claims of lien held by the plaintiff herein were not filed until January, 1892, they did not create any lien upon the building, or constitute any charge against the respondent. Although the appellant has specified, as one of the particulars in which the evidence is insufficient to justify the finding that there was a cessation of labor upon such unfinished contract for thirty days, he does not dispute these facts, but claims that, inasmuch as after Kearns gave notice to La Grave that he would abandon his contract, La Grave made a contract with another for completing the building under which work thereon was resumed; there was, therefore, no cessation of work for thirty days upon the building, and consequently, the claims of lien could be filed within thirty days after the actual completion of the building. The statute, however, makes the cessation from labor for thirty days upon any "unfinished contract" equivalent to a "completion" thereof, for all who claim a lien by virtue of that contract, as fully as though the building was actually completed. (Kerckhoff-Cuzner Mill and Lumber Co. v. Olmstead , 85 Cal. 80; Willamette Co. v. College Co ., 94 Cal. 229.) It is immaterial whether the building is subsequently completed by the owner or not, or, if completed, whether such completion is effected by the owner directly or through a contract with another; for the purposes of creating a lien thereon through the terms of the unfinished contract, the cessation from labor under that contract for thirty days is a statutory completion of the building, which sets the time running within which the claim of lien must be filed. For all purposes of claiming a lien the subsequent contract by La Grave is as disconnected with the one with Kearns as if it had been for the construction of a different building. The appellant's assignors had no connection with that contract, and did not furnish any materials for its performance, and it would be contrary to the manifest policy of the law upon this subject to hold that those who had furnished the labor and materials for the performance of this second contract should be postponed in the payment therefor until after the contract price of their contractor had been absorbed in the satisfaction of claims entirely disconnected with the contract under which they had furnished this labor and materials.
As the plaintiff is not entitled to enforce any lien upon the building, or to receive from the appellant any portion of the contract price, it is immaterial to him whether any portion of the moneys due to Kearns was unpaid at the time he abandoned the contract, nor is it any concern of his whether the respondent made a proper disposition of the unpaid portion of said contract price.
The judgment is affirmed.