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Weatherly v. Van Wyck

Supreme Court of California,Department Two
Apr 5, 1900
60 P. 846 (Cal. 1900)


S.F. No. 1236.

April 5, 1900.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. James M. Troutt, Judge.

The facts are stated in the opinion.

E.H. Wakeman, for Appellant.

William George Leviston, for Respondent.

Action to foreclose a materialman's lien. Findings and judgment were for the defendants, and the plaintiff appeals from the judgment upon the judgment-roll without any bill of exceptions.

Among other things the court found: "That said material was purchased by said Chandler (the contractor) to be used, and was actually used, in the construction of said structure upon said lot of land, for said H.L. Van Wyck, but said material was not sold by said Whittier, Fuller Co. (plaintiff's assignors), to be used in said structure, but was sold to said Chandler without any agreement or understanding where it was to be used."

This finding is fatal to plaintiff's claim. It is not enough that the materials were in fact used in the construction of the building, but they must have been furnished by the materialman expressly for the particular building on which the lien is asserted. (Code Civ. Proc., sec. 1183; Roebling Sons Co. v. Bear Valley etc. Co., 99 Cal. 488, and cases there cited.)

This conclusion renders it unnecessary to consider the effect of the transfer of the property sought to be charged, and other questions growing out of the transfer, to which the argument is principally directed.

I advise that the judgment be affirmed.

Gray, C., and Britt, C., concurred.

For the reasons given in the foregoing opinion the judgment is affirmed. Henshaw, J., Temple, J., McFarland, J.

Summaries of

Weatherly v. Van Wyck

Supreme Court of California,Department Two
Apr 5, 1900
60 P. 846 (Cal. 1900)
Case details for

Weatherly v. Van Wyck

Case Details

Full title:W.J. WEATHERLY, Appellant, v. H.L. VAN WYCK, Respondent

Court:Supreme Court of California,Department Two

Date published: Apr 5, 1900


60 P. 846 (Cal. 1900)
60 P. 846

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