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McCants v. Bush

Supreme Court of California
Jul 12, 1886
70 Cal. 125 (Cal. 1886)

Opinion

         Department One

         Appeal from a judgment of the Superior Court of Sacramento County.

         COUNSEL:

         After the service of the notice, it was the duty of the owner of the building to have seen that the plaintiff was paid before paying the original contractors in full. (Renton v. Conley , 49 Cal. 188; McAlpin v. Duncan , 16 Cal. 127; Bowen v. Aubrey , 22 Cal. 571.)

         D. E. Alexander, and Jay R. Brown, for Appellant.

          J. F. Ramage, S. Solan Holl, Young & Dunn, W. H. Beatty, S.C. Denson, and Matt. F. Johnson, for Respondents.


         The authorities cited by appellant were based upon the statute of 1862, which did not provide for the filing of a lien by a subcontractor, but permitted him to file a notice with the owner. The remedy of the subcontractor is now different. (Code Civ. Proc., secs. 1183, 1185, 1187.)

         JUDGES: McKinstry, J. Myrick, J., and Ross, J., concurred.

         OPINION

          McKINSTRY, Judge

         The facts on which the plaintiff sought to recover in this action all occurred before the amendments to the chapter of the Code of Civil Procedure treating of the "Liens of Mechanics," which were adopted March 18, 1885.

         We agree with the court below that as the law then stood the service of the notice of the 16th of October, 1884, set forth in complaint, did not affect the rights of the parties, nor impose on defendant Bush the duty of retaining a portion of the contract price to satisfy any lien which the plaintiff might subsequently file.

         Judgment affirmed.


Summaries of

McCants v. Bush

Supreme Court of California
Jul 12, 1886
70 Cal. 125 (Cal. 1886)
Case details for

McCants v. Bush

Case Details

Full title:THOMAS McCANTS, Appellant, v. E. N. BUSH et al., Respondents

Court:Supreme Court of California

Date published: Jul 12, 1886

Citations

70 Cal. 125 (Cal. 1886)
11 P. 601

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