.- ^ i ' r THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW A TREATISE ON THE ■ LAW OF MECHANICS' LIENS AND BUILDING CONTRACTS ^ITH ANNOTATED FORMS PUBLISHED BY BENDER-MOSS REVISED, CORRECTED BROUGHT DOWN TO DATE AND COMPLETED BY JAMES M. KERR in EDITOR CYCLOPEDIA CALTFOUNIA CODE=! AUTHOR OF KERR ON REAL PROPERTY, KERR ON HOMICIDE. ElO. SAN FRANCISCO BENDER-MOSS COMPANY Law Publishep-s and Booksellers 1908 Copyright, 1908 Bv Bender- Moss Company T K4633rw \9o% FOEEWORD. In this treatise an effort has been made to give the profes- sion an exhaustive — in the territory treated — and practical work on Mechanics' Liens and Bnilding Contracts, with a full set of carefully prepared and annotated forms. Scope of the work. The subjects mentioned have been exhaustively treated for the jurisdictions covered, to wit, California, Arizona. Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico. Oklahoma, Oregon, Utah, Washington, and Wyoming, and the work will be found equally service- able in other jurisdictions, especially in Kansas, North and South Dakota, and Texas. Method of treatment. The cases in each jurisdiction have been kept separate, under the appropriate titles, so that one desiring to follow the law of any state from subject to sub- ject may do so without difficulty, thus rendering the work, in a measure, a practical treatise for each and every juris- diction covered therein. Subjects discussed. Among other things may be men- tioned the eight chapters devoted to the Original Contract ; and the chapter on the Effect of the Validity and Invalidity of the Original Contract will be recognized as a new treat- ment of an important subject. The entire title on Limita- tions on Liens has been discussed in a manner quite different from that of prior works. The chapter on Owner and Em- ployer and the chapter on Agency, it is believed, have intro- duced a clearer statement of the peculiar relations existing between the owner and those improving real property than any that has been heretofore published. The eluipter on Architect and that on Sureties will be found valuable lo those closely in touch with building operations. The laAv of procedure has likewise received careful treatment. Many new definitions are given, especially those of " Stat- utory Original Contract," " Original Contractor," " Material- man," " Subcontractor," " Subcontract," " Extra Work," and (iii) iv FOREWORD. the like, where confusion has -reigned. And, particularly, the underlj'ing grand divisions of the statute, to which all points are referred, have been indicated under each appropriate head. Reconciliation of conflict. An effort has been made to reconcile apparently conflicting decisions, and to show the present value of authorities, as well as divergences from standard doctrine. Where confusion has appeared, it has been the endeavor to indicate the proper course, at all times being careful to distinguish the court's statement from the writer's own opinion. The true rulings announced by the courts are set forth, irrespective of the formal statements of syllabi. The Table of Correlated Sections of the Statutes of the different states prefixed will be found to be extremely useful to those desiring to compare the statutes and decisions of their own state with those of other states, cross-references being made to the text where the subject is discussed. This table will also be found valuable in tracing authorities decided hereafter. Part ni, consisting of Forms, contains rather those which involve more complicated facts than those which are simple, this being considered more helpful to the practitioner. This part is thoroughly annotated, and cross-references are made therein to the subject-matter in the text where discussed. References are also made to other forms to be found in the reports themselves, thus giving the reader ready access to numerous forms. The Index has been prepared with care, with the view of rendering it most serviceable to all users of the treatise, and the wiiole work revised, corrected, brought down to date, and completed by James M. Kerr. San Feancisco, December 5, 1908. CONTENTS. PART I. - SUBSTANTIVE LAW, OR PRIMARY RIGHTS. CHAPTER I. HISTORY, SPIRIT, NATURE, AND CONSTRUCTION OP THE LAW. § 1. Introductory. § 2. General divisions of subject. California statute distin- guished. § 3. Questions raised in the decisions. § 4. Historical. § 5. Evolution of California mechanic's-lien law. § 6. Spirit of the law. § 7. Theory of the mechanic's-lien law. § 8. A favored lien. § 9. General nature of the lien. Plan of discussion. § 10. I. General classification of liens of this character. § 11. Another classification. § 12. The classification adopted herein. § 13. Same. Contractual relation between owner and original contractor. § 14. Same. Valid and void contract. Effect. § 15. Same. The object or thing to which the lien attaches. § 16. Same. Lien on structure separate from land. § 17. Same. Lien on the fund. § 18. II. The kinship between statutes of the various states. § 19. III. The general peculiarities of mechanics' liens. § 20. Relation of lien to the debt. § 21. Mechanic's lien and mortgage compared. § 22. Nature of action to foreclose lien. § 23. Nature and scope of right conferred. § 24. Construction of mechanic's-lien statutes. Scope of discus- sion. § 25. Same. Confusion in the authorities. § 26. Same. Penal provisions. § 27. Same. Resume. (v) Vi CONTENTS. CHAPTER II. CONSTITUTIONAL ASPECTS, AND THE LAW APPLICABLE. § 28. Constitutional provisions creating the lien. § 29. Same. Operation of the constitution. § 30. Raising question of constitutionality. § 31. Constitutionality of lien statutes generally. § 32. The contractual relation. § 33. Same. Valid contract. § 34. Same. Power of reputed owner. Estoppel. § 35. " Impairing obligation of contracts." § 36. Retrospective laws. § 37. Same. Homestead. Priorities. § 38. Repeals. § 39. Contractor's bond. § 40. Attorneys' fees and costs. § 41. Jurisdiction. Special case. CHAPTER III. PERSONS ENTITLED. IN GENERAL. i 42. Constitutional and legislative classifications. 43. Classification as to relation to owner or employer, i 44. Same. As to individuality of claimants. CHAPTER IV. ORIGINAL CONTRACTORS. 45. Definition of " original contractor." 46. Same. One test. Intermediate liens. 47. Same. Four essential factors. 48. Same. Two or more original contractors. 49. First test. Privity. 50. Same. Holder of legal title. 51. Same. Tenant. 52. Same. Void contract. i 53. Same. Implied original contract. 54. Second test. Intermediate lien-holders. . 1 55. Same. Agency. i 56. Same. Direct contract with owner. ( 57. Same. Material-man. 158. Third test. Personal liability. CONTENTS. Vll § 59. Fourth test. Labor contract. § 60. Distinction between " original contractor " and " material- man." § 61. General rights of original contractors. As against person who " caused " the improvement to be made. § 62. Same. As against other persons in privity with him. § 63. Same. As against other persons. § 64. Greneral obligations of original contractors. To person causing improvement to be made. § 65. Same. To other persons. CHAPTER V. SUBCONTRACTORS. 66. Definition of " subcontractor." 67. Different degrees of subcontractors. i 68. Distinction. Subcontractor and material-man. 69. Same. Subcontractor and employees of material-man. 70. General rights of subcontractors. Constitution, i 71. Same. Valid contract. 72. Same. Void contract, i 73. Same. Personal rights, i 74. Same. Amount of claim. 75. Same. Priorities. ( 76. General obligations of subcontractors. CHAPTER VI. MATERIAL-MEN. § 77. Distinction. Material-man, original contractor, and sub- contractor. § 78. Definition of " material-man." § 79. Who are not material-men. § 80. Same. Placing materials in situ. S 81. Distinction between material-man and subcontractor. §82. Circumstances under which lien for materials is given. The contract. Use of materials. § 83. Same. Contract for sale, or for labor. § 84. Same. Formalities. Recording contract. § 85. Same. As affected by original contract. § 86. Same. Other general essentials. S 87. Same. Nature and manner of use of materials. S 88. Same. Definition of " furnished." § 89. Same. Materials, how " used." Viii CONTENTS. § 90. Same. Lien, when allowed. Package. § 91. Same. Carriage charges. § 92. Same. Nature of the work on the property for which the materials are furnished. § 93. Same. Alteration, construction, addition to, repair. § 94. Same. Extent of alteration or repair. § 95. Same. Fixtures. § 96. Same. In mining claims and mines. § 97. Same. Street-work, grading, etc. § 98. Same. Nature of property for which material must be furnished. Generally. § 99. Same. Mines and mining claims. § 100. Same. . Lien allowed. § 101. General rights of material-men. § 102. General obligations of material-men. § 103. Same. Knowledge of terms of original contract. Fraud. CHAPTER Vn. PERSONS PERFORMING LABOR. § 104. Scope of chapter. § 105. Statutory provision. § 106. Constitutional provision. § 107. Laborer distinguished from contractor, subcontractor, and material-man. § 108. Laborer does not create intermediate lien-holders. § 109. Personal services. § 110. Definitions. Various kinds of laborers. § 111. Nature of labor for which lien is given. § 112. General rights of laborers. Similar to those of material- men. § 113. Same. Priorities. § 114. Same. Material-man's laborers. § 115. Same. Death of employer. § 116. Same. Public work. § 117. General obligations of laborers. § 118. Same. Death of employer. CHAPTER Vin. ARCHITECTS. 119. Architects. Their regulation. 120. Statutory provisions. 121. Definition of " architect." CONTENTS. IX 122. Contract of unlicensed architect. 123. Rights of architects. 1 124. Right to lien. ■ 125. Powers of architect. : 126. Relation between owner and architect. i 127. Same. Agent of owner. I 128. Architect as subcontractor. ! 129. Obligations of architects. CHAPTER IX. LABOR FOR WHICH A LIEN IS GIVEN. § 130. Scope of chapter. § 131. Statutory provisions, generally. Structures. First clause. § 132. Same. Mines. Second clause. § 133. Same. Grading, etc. § 134. Same. Three grand divisions. Generally. § 135. Structures and mines. In general. § 136. Importance of fixing clause under which case falls. § 137. Same. Classes not mutually exclusive. § 138. Definition of labor " bestowed." § 139. Grading and other work under section eleven hundred and ninety-one. Generally. § 140. Classes. How discussed at this time. § 141. " Improvement," defined. Refers to object. § 142. Structures, and grading and other work, under section eleven hundred and ninety-one. § 143. Structures. Liens allowed. § 144. " Construction, alteration, addition to, or repair." § 145. Same. Importance of determination. § 146. Character of alteration. § 147. Distinction between alteration and repair. § 148. Same. Alteration. Erection. § 149. Work in mines and mining claims. Second clause. § 150. Same. Liens allowed. § 151. Same. Notice of non-responsibility. Tunnel. § 152. Same. Drifting. § 153. Same. Running tunnel. § 154. Same. Shaft. Mining instrumentalities. § 155. Same. Watchman of idle mine. § 156. Grading, etc., under section eleven hundred and ninety- one. § 157. Same. Work not enforceable under this section. § 158. Same. Meaning of " improves," " improvement." § 159. Same. Relation to work on structures. § 160. Same. Liens allowed. X CONTENTS. § 161. Labor for which lien is not given in any event. § 162. Same. Preliminary work. § 163. Same. Teaming for material-man. §164. Same. Material-man's laborer. § 165. Same. Test, legitimate connection with worli of mine. CHAPTER X. OBJECT ON WHICH LABOR MUST BE PERFORMED. § 166. Distinction between " object " and " property." § 167. Constitutional provision. § 168. Division of the statute. § 169. Statutory provisions. §170. Definition of terms used herein. § 171. Same. " Improvement." " Structure." § 172. Structure on a mine. Oil-well. § 173. " Structures," in general. First clause of statute. § 174. Structures not enumerated in statute. § 175. Structures enumerated in statute. Buildings. § 1 76. Same. Bridges. § 177. Same. Aqueduct, ditch, and flume. § 178. Same. Well. § 179. Same. Tunnel. §180. Same. Machinery. §181. Same. Railroad. § 182. Mining claims, and real property worked as a mine. Sec- ond clause of statute. § 183. Definition of " mine." §184. Grading and street-work under code provision. § 185. Fixtures. In general. §186. Same. Question of fact. Building. § 187. Same. Principles of determination. § 188. Lien primarily on structure. § 189. Work upon fixtures, how deemed. § 190. The severance of buildings from the freehold. § 191. Work on fixtures in mine. § 192. Public property. CHAPTER XI. BUILDING CONTRACTS. GENERAL PRINCIPLES. §193. General principles applicable. §194. Term "original contract" not used in the statute. CONTENTS. XI § 195. Essentials of contract. How treated herein. § 196. Definition of " contract." § 197. Definition of " building contract." § 198. Parties to contract. Competency. § 199. Same. Guardian of minor. § 200. Same. Executor. § 201. Same. Corporations. § 20''. Same. Owner. Contract not binding, contractor's lien fails. Implied contract. § 203. Same. Owner. § 204. Same. Owner. Street-work. § 205. Contract made with reference to statute. § 206. Consent. § 207. Same. Fraud. Mistake. § 208. Same. Indefiniteness of contract. False reference to plans and specifications. § 209. Consideration. § 210. Ratification. § 211. Definition of " original contract." § 212. Same. Owner, laborer, and material-man. § 213. Same. Subcontractor's contract. § 214. Same. Definition of " statutory original contracts " and ■' non-statutory original contracts." § 215. Same. Contract for street-work. CHAPTER XII. BUILDING CONTRACTS (CONTINUED). CONSTRUCTION OF SAME. IN GENERAL. § 216. Construction of building contracts. In general. § 217. Several contracts relating to the same matters. § 218. Ambiguity or uncertainty in contract. § 219. Particular clauses. General intent. § 220. Entire and severable contracts. § 221. Dependent and independent promises. § 222. Joint and several contracts. § 223. Contract explained by circumstances. § 224. Reasonable stipulations, when implied. § 225. Same. Time of performance unspecified. § 226. Warranty. § 227. Construction of statutory original contracts. Penalty. § 228. Instances of construction of contracts. XU CONTENTS. CHAPTER XIII. BUILDING CONTRACTS (CONTINUED). COMMON CLAUSES PECULIAR TO BUILDING CONTRACTS. IN GENERAL. § 229. Scope of chapter. § 230. Arbitration clause. California. § 231. Same. Agreement to arbitrate not final. § 232. Same. When procuring award condition precedent to re- covery. § 233. Same. Distinction between two classes of cases. § 234. Same. Submission to arbitration revocable. § 23.5. Same. Good faith and open dealings of arbitrators. § 236. Estimates. § 237. Liquidated damages. § 238. Certificates. § 239. Certificate, when excused. § 240. Waiver of certificate. § 241. Same. Dismissal of architect. § 242. Conclusiveness of certificate. § 243. Extra work. Generally. § 244. Same. Definition. § 24."). Same. Extra work provided for in contract. § 246. Same. Contract in writing. § 247. Same. Verbal alteration of original contract. § 248. Same. Estoppel. § 249. Same. Arbitration. § 250. Same. Void contract. § 251. Payments. How considered herein. §252. Same. Conditions precedent. §253. Same. Waiver. § 254. Same. Application of payments. § 255. Liens. Statutory provision. California. § 256. Same. Condition precedent. § 257. Same. Public property. CHAPTER XIV. BUILDING CONTRACTS (CONTINUED). NON-STATUTORY ORIGINAL CONTRACTS. 258. Method of treatment. 259. Statutory and non-statutory original contracts compared. 260. Same. Implied contract. 261. Same. Contract price less than one thousand dollars. 26.?. Same. Contract price "computable. 263. What in no event a statutory original' contract. CONTENTS. Xm § 264. Provisions not applicable to non-statutory original contracts. § 265. Same. Writing. Filing. Payments. § 266. Same. Notice to owner. Premature payments. § 267. Same. Payment in land. § 268. Same. Alteration of contract. Conspiracy. CHAPTER XV. BUILDING CONTRACTS (CONTINUED). STATUTORY ORIGINAL CONTRACTS. A. Statutory Requirements not Essential to the Validity of the Whole Statutory Original Contract. § 269. Provisions imposing a penalty. Payments, in general. Statu- tory provision. § 270. Same. Scope and object of these provisions. § 271. Same. Substantial compliance required. Effect. § 272. Same. Contract price not to be payable in advance of the work. § 273. Same. Contract price payable in instalments, or after com- pletion. § 274. Same. Payment of twenty-five per cent thirty-five days after completion. § 275. Same. The object of this provision. § 276. Same. General rule. § 277. Same. Illustrations. Sufficient compliance. § 278. Same. What not substantial compliance. § 279. Same. Provision as to liens. § 2.80. Same. Payment in money. § 281. Same. Contractor's bond. Provision unconstitutional. § 282. Same. Effect of giving bond. Common-law obligation. § 283. Same. Previous decisions concerning bond. § 284. Provisions avoiding certain clauses. Impairment of liens. Statutory provision. § 285. Same. Provision, when not applicable. CHAPTER XVI. BUILDING CONTRACTS (CONTINUED). B. Statutory Requirements Essential to Validity of Contract. § 286. Scope of discussion. § 287. Statutory provision. § 288. What not essential to validity of contract. § 289. Construction of provision. Xiv CONTENTS. § 290. Statutory original contract must be entered into before work is commenced. § 291. Same. Estoppel as to invalidity of contract. § 292. The statutory original contract must be in writing. § 293. The statutory original contract must be subscribed. § 294. Filing contract. § 295. The duty of filing the contract. § 296. Necessity and object of filing contract. § 297. Whole contract must be filed. § 298. Same. Reference to matters dehors the contract. § 299. Same. Where the plans and specifications are referred to. § 300. Memorandum of contract. Statutory provision. § 301. Same. General effect of provision. § 302. Same. Purpose and object. § 303. Same. What not required in memorandum. § 304. Same. Contract, or copy thereof, as memorandum. Gen- eral principles. § 305. Same. Names of all the parties to the contract. § 306. Same. Description of the property to be affected thereby. § 307. Same. Statement of the general character of the work to be done. § 308. Same. Statement of work. General principles. § 309. Same. Reference to plans and specifications. § 310. Same. Reference to detail drawings. § 311. Same. Payments. ■§ 312. Time of filing contract or memorandum. § 313. Place of filing contract or memorandum. § 314. Conspiracy as to contract price. CHAPTER XVII. BUILDING CONTRACTS (CONTINUED). C. Effect of Validity oe Invalidity of Statutory ObiginaIj Contract. § 315. Effect of validity of contract. Owner's liability. § 316. Same. Valid contract as notice. § 317. Same. Abandonment of contract. § 318. Same. How far subclaimants are bound by other terms of valid original contract. §319. Effect of invalidity of statutory original contract. Gener- ally. § 320. Same. Classes affected by invalidity of contract. § 321. Same. Effect as between parties to the contract. § 322. Same. Contractor's lien on express or implied contract. § 323. Same. To what extent contract may be looked to by the parties. CONTENTS. XV § 324. Same. Lien claimants, other than original contractor. § 325. Same. How far effective. CHAPTER XVIII. BUILDING CONTRACTS (CONTINUED). EXTINCTION OF CON- TRACT. § 326. Alteration of original contract. Statutory provisions. § 327. Same. To what original contracts provisions applicable. § 328. Same. Statutory original contract. § 329. Same. Alterations, how evidenced. Effect. § 330. Same. Extending credit. § 331. Same. Payments. § 332. Same. Power of architect to alter contract. § 333. Novation. § 334. Performance of contract. How considered herein. § 335. Same. Original contract valid. § 336. Same. Original contract void. § 337. Same. Time of performance. § 338. Same. General rule. Conditions. § 339. Same. Excuses for non-performance. § 340. Same. Performance of warranty. § 341. Same. " Trifling imperfection." § 342. Same. Substantial performance generally required. § 343. Same. General principles. § 344. Same. Slight difference in value. § 345. Same. Conveniences. § 346. Same. Erection of structure in part only. § 347. Same. " Completion " of mining claim. § 348. Statutory equivalents of completion for the purpose of filing claims of lien. § 349. Same. Statutory provisions. § 350. Same. Occupation and use. Scope and object of statutory provisions. § 351. Same. Character of occupation or use. § 352. Same. Void contract. § 353. Same. Acceptance. Waiver. § 354. Same. Cessation from labor for thirty days. Statutory pro- vision. § 355. Same. Scope of provision. § 356. Same. Character of cessation. § 357. Same. As affected by validity or invalidity of original con- tract. § 358. Abandonment of original contract. § 359. Same. Owner's liability. § 360. Same. Justification for abandonment. XVI CONTENTS. CHAPTER XIX. CLAIM OF LIEN. NATURE, NECESSITY, AND PURPOSE. § 361. Resemblance between statutory provisions as to claim of lien. § 362. Nature of claim of lien. § 363. Statutory provision. California. § 364. When claim of lien is necessary. § 365. Purpose of claim of lien. § 366. The necessity of one or more claims of lien. § 367. Same. Persons joining in same claim of lien. § 368. Same. Several objects and pieces of property. § 369. Same. Various items of labor or materials. CHAPTER XX. CLAIM OF LIEN (CONTINUED). CONTENTS OF CLAIM. § 370. General statement as to contents of claim of lien. § 371. Construction of claims. General principles. § 372. Same. General rule for determination of sufficiency of claim. § 373. Same. What generally required. § 374. Same-. Unnecessary statements. § 375. Statement of demand, after deducting credits and offsets. § 376. Same. Object of provision as to demand. § 377. Same. Commingling lienable and non-lienable items. § 378. Same. Demands against two or more buildings. § 379. Names required to be stated in claim. In general. § 380. Same. Name of owner or reputed owner. § 381. Same. Employer. Purchaser. § 382. Same. Under void statutory original contract. § 383. Same. Inferential statements. § 384. Same. " Causing " improvement. § 385. Same. Name of agent. § 386. Same. Two or more employers or purchasers. § 387. Terms, time given, and conditions of contract. In general. § 388. Same. Object and construction of provision. § 389. Same. General rules. § 390. Same. Showing contractual indebtedness. § 391. Same. Setting out terms of original contract. • § 392. Same. Reference to other papers. § 393. Same. Express and implied agreement as to price. § 394. Same. Items of account. § 395. Same. Nature of labor. § 396. Same. Dates. § 397. Same. " Time given.". ^^ 398. Same. " Cash." § 399. Description of property. In general. CONTENTS. XVI I § 400. Same. Bona fide purchasers. § 401. Same. Object of provision. § 402. Same. General rule. § 403. Same. Special applications. False calls. § 404. Same. Property identified by name or exclusive character. § 405. Same. Description as including too much or too little. § 406. Same. Two or more descriptions. Statutory provision. § 407. Same. Application of provision as to demands against sepa- rate buildings. § 408. Claim of charge. § 409. Signature. § 410. Verification. § 411. Uncertainty in claim. § 4i2. Mistake and error in claim. § 413. Same. Unnecessary statements. § 414. Same. Other illustrations. § 415. Amendment of claim. CHAPTER XXI. CLAIM OF LTEN (CONTINUED). FILING CLAIM. § 416. Filing claim. In general. § 417. Statutory provisions. § 418. Purpose of provision requiring claims to be filed within a certain time. § 419. Same. In case of void contract. § 420. Place of filing claim for record. §421. Original contract void. Necessity of filing claim. § 422. Time of filing claim. In general. § 423. Same. Computation of time. § 424. Time of filing, when r.ot fixed by statute. § 42.5. Notice of completion or cessation of work. Statutory provis- ion. § 426. Same. Purpose and scope of provision. § 427. Same. Failure of owner to file notice. § 428. Same. In case of structures. § 429. Same. General rule. § 430. Time of filing claim. Certificate of architect. §431. Same. Substantial or actual completion. § 432. Same. Abandonment of the work. § 433. Same. Thirty days' cessation from labor. § 434. Same. Agreements affecting time of filing claims. Giving credit. § 435. Same. Void contract. § 436. Same. Mines and mining claims. § 437. Same. Grading, etc. Mech. Liens — B XViii CONTENTS. CHAPTER XXII. LIMITATIONS ON LIENS. EXTENT OF LIENS. § 438. Territorial or " property " extent of lien. § 439. Same. Statutory provision. § 440. Same. Space for convenient use and occupation. § 441. Same. Structures. Illustrations. § 442. Same. Land affected when building is destroyed or removed. § 443. Same. Mines and mining claims. § 444. Same. Several mining claims. § 445. Same. Mining machinery. § 446. Same. Grading and other work. Lot. § 447. Property viewed as an entirety. § 448. Same. Distinct objects on one parcel of land. § 449. Same. Railroads, canals, gas-works and water-works. § 450. Same. Lien on building alone. False representations as to ownership. § 451. Same. Mining claims and mines. § 452. The lien as limited by contract. § 453. Same. Statutory provision. § 454. Same. General interpretation of provision. § 455. Same. Contract as notice. § 456. Same. Price. Value. § 457. Same. Contract of subcontractor and contractor. § 458. Same. Claimants under subcontractors. CHAPTER XXIII. LIMITATIONS ON LIENS (CONTINUED). ESTATES AND INTERESTS SUBJECT TO LIENS. T. By Coxtr.\ct. § 459. Plan of discussion. § 460. Estates or interests bound by contractual relation with the holder thereof. Statutory provision. § 461. Same. General rule. § 462. Same. Fee or legal title subject to lien. § 463. Same. Vendee being in possession. § 464. Same. Lessee being in possession. § 465. Same. Title being held in trust. § 466. Same. Interest of vendee in possession bound. § 467. Same. Interest of lessee bound. § 468. Same. Homestead bound. CONTENTS. XIX CHAPTER XXIV. LIMITATIONS ON LIENS (CONTINUED). ESTATES AND INTERESTS SUBJECT TO LIENS. II. By Estoppel. Notice of Non-responsibility. § 469. Estates or interests bound by estoppel. Scope of discussion. § 470. Same. The general principles of estoppel in pais. § 471. Same. Independently of statute. § 472. Same. General rule as to when notice of non-responsibility must be given. § 473. Same. Notice of non-responsibility. Statutory provision. § 474. Same. Purpose of provision as to notice of non-responsi- bility. § 475. Same. Notice or knowledge of improvement. § 476. Same. Notice to corporation as owner. § 477. Same. Lessee in possession and making improvements. § 478. Same. Vendee being in possession. § 479. Same. When notice not required. § 480. Same. When notice not required in case of mines and min- ing claims. § 481. Same. Notice not required in case of grading and other work in incorporated cities. § 48:^. Same. Notice not required in case of prior liens. § 483. Same. Effect of knowledge of claimant of lack of authority of person making improvement. § 484. Same. Notice, when to be posted. § 485. Same. Notice, how posted. Conspicuous place. CHAPTER XXV. LIMITATIONS ON LIENS (CONTINUED). PRIORITIES. § 486. Scope of chapter. § 487. Priorities between mechanics' liens and other estates or interests, or other classes of liens. § 488. Same. Statutory statement of rule. § 489. Same. General analysis of provision. § 490. Same. Grants and conveyances. § 491. Same. Doctrine of relation. § 492. Same. Lien for materials. § 493. Same. Contractors and subcontractors. Void contract. Homestead. § 494. Same. Parts of day. §495. Same. General rule. § 496. Same. Mortgage fur purchase price. XX CONTENTS. § 497. Same. Mortgage for future advances. § 498. Same. What constitutes " further advances." § 499. Same. Reformation and alteration of instruments. §5i0. Same. When iien claimants may attack prior encumbran- ces. § 501. Same. Garnishment by creditor. § 502. Same. Lien on two or more buildings. Statutory provision.. § 503. Same. When provision as to two or more buildings appli- cable. § 504. Priorities inter sese. Statutory provision. § 505. Same. Nature of provision. § 506. Same. Effect of constitution on statutory provision. § 507. Same. Insufficient proceeds. Prorating. CHAPTER XXVI. OWNER, EMPLOYER, OR PERSON CAUSING IMPROVEMENT TO BE MADE. § 508. Owner and employer, or purchaser. Distinction. § 509. Owner and reputed owner. § 510. General rights of owner and employer. Scope of discussion. § 511. Same. Rights against contractor. Statutory provision. § 512. Same. General rule as to non-payment of instalments. § 513. Same. Right to cancel contract. § 514. Same. Right of owner to retain fund. § 515. Same. Offsets and counterclaims. Generally. § 516. Same. Offsets and counterclaims against different payments. § 517. Same. Damages for delay in performance. § 518. Same. Completion of contract by owner. § 519. Same. Right to complete construction upon abandonment. § 520. Same. Right to materials upon abandonment. § 521. Same. Rights against others. § 522. Same. Payments. § 523. General obligations of owner and employer. Scope of dis- cussion. § 524. Same. Duty to file statutory original contract. § 525. Same. Duty to withhold payments. § 526. Same. Liability of owner on breach or abandonment. Statu- tory provision. § 527. Same. Application of statutory provision. § 528. Same. Void contract abandoned. § 529. Same. Non-statutory original contract. § 530. Same. Destruction of building. § 531. Same. Liability of fee for improvements by trespasser. §532. Same. Application of' payments by subclaimants. 533. Same. 534. Same. ing 535. Same. 536. Same. 537. Same. 538. Same. 539. Same. 540. Same. 541. Same. 542. me Same. 543. Same. 544. Same. 545. Same. CONTENTS. XXI Payment of orders of contractor. Splitting demands. Orders on ov/ner's mortgagee. Destruction of build- Voluntary payment of contractor's debts. Guaranty not a prohibited payment. Owner as stakeholder. Liability for costs and interest. Interpleader. Personal liability. Liability of owner or employer under valid contract. Payment to subclaimants. Valid contract. Last pay- it. Liability of owner under void contract. Void contract. Penal provision. Statute measure of liability under void contract. Personal liability to subclaimants under void con- tract. § 546. Same. False representations by owner as to completion of building. CHAPTER XXVII. OWNER, EMPLOYER, OR PERSON CAUSING IMPROVEMENT TO BE MADE (CONTINUED). LIABILITY AS FIXED BY NOTICE. § 547. Scope of discussion. § 548. Notice to owner or employer. History. § 549. Statutory provision. § 550. Notice to owner, and claim of lien. Distinction and pur- poses. § 551. Notice to owner creating personal obligation. § 552. Notice to owner. Garnishment. § 553. Provision, when applicable. § 554. General rights upon service of notice. § 555. Same. Early statutes. § 556. Same. Under valid contract, generally. § 557. Same. Claim of lien as equivalent of notice to owner. § 558. Same. Valid statutory original contract. § 559. Same. Void statutory original contract. § 560. Same. Non-statutory original contract. § 561. Same. Effect of notice on payments already made or as- signed. § 562. Same. Payment by note. § 563. Same. Relation to provision as to premature payments. § 564. Same. Service of notice on public trustees. § 565. Time of giving notice. § 566. Joint contractors. Apportionment. § 567. Action on notice. Xxii CONTENTS. § 568. Form and contents of notice. Construction. § 569. Same. Effect of several notices served. § 570. Same. Statutory requirements of notice. § 571. Same. Sufficiency of notice. CHAPTER XXVIII. AGENCY. § 572. General principles. Actual and ostensible agency. § 573. Agency by statutory estoppel. § 574. Same. Purpose. § 575. Same. Statutory provision. § 576. Same. When contract is void. § 577. Person in possession as agent of owner. § 578. Same. Person working mine. § 579. Architect as agent. § 580. Presumption of agency raised. § 581. Undue extension to statutory agency of rules applicable only to common-law agency. § 582. Personal liability of agent. § 583. Agency to receive notice of claims of subclaimants. § 584. Principal bound by notice to agent. CHAPTER XXIX. THIRD PERSONS. § 585. Scope of discussion. § 586. Purchasers and other lien-holders. § 587. Same. Defective claim of lien as notice to bona fide third parties. § 588. Assignees. Assignment of inchoate right to lien. § 589. Same. Formalities of assignment. § 590. Same. Unaccepted order. §591. Same. Assignment of debt necessary. § 592. Same. Separate assignments of debt and security. § 593. Same. Splitting demands. § 594. Same. Notice of assignment. § 595. Same. General rights of assignee. § 596. Same. Conditional acceptance. § 597. Same. Defenses arising subsequent to assignment. § 598. Same. Assignment to surety on contractor's bond. § 599. Same. Insolvency. Bankruptcy. § 600. Same. Premature payments. §601. General creditors. Claimants losing lien. CONTENTS. XXiil § 602. Same. Attachment or process. Materials. § 603. Same. Garnishment. § 604. Mortgagees. Obligation to advance moneys for construction. CHAPTEE XXX. THIRD PERSONS (CONTINUED). SURETIES. 8 605. Scope of chapter. § 606. Statutory requirement of contractor's bond. § 607. Same. Application of provision. § 608. Statutory bond. Formalities. § 609. Same. Statutory bond void. § 610. Same. Contract void. Bond valid. § 611. Same. Liability on statutory bond. § 612. Same. Statutory bond, when enforceable as a common-law obligation. § 613. Common-law bonds. Formalities. 8 614. General rule of surety's liability. § 615. Original contract as basis of liability. § 616. Auditing accounts, as provided in contract. § 617. Construction of bond. § 618. Surety's rights. Notice. § 619. Surety as lien claimant. § 620. Surety under legal obligation not to foreclose lien. § 621. Obligee of bond destroying security of surety. § 622. Premature payments. Generally. § 623. Same. Intermediate instalments. § 624. Same. Final instalment. § 625. Liability of sureties. Damages. § 626. Bond of contractor on public work. CHAPTER XXXI. WAIVER, FORFEITURE, AND RELEASE OF LIEN. § 627. Waiver of lien. General principle. § 628. Same. Statutory provision. § 629. Same. Knowledge of lack of authority of employer. § 630. Same. Taking additional security. § 631. Same. Entry of judgment. § 632. Forfeiture by false or excessive claim or notice. § 633. Same. Illustrations. § 634. Release of lien. § 635. Same. Composition agreement. Definition. § 636. Same. Agreement to assign claims to owner. § 637. Same. Effect of composition agreement. PART 11. PLEADING AND PROCEDURE. CHAPTER XXXII. REMEDIES. § 638. Cumulative remedies. Personal action. § 639 Same. Election, when several suits commenced. § 640. Same. Nature of action to foreclose lien. § 641. Same. Actions by original contractor. § 642. Same. Actions by subclaimants. § 643. Same. Actions by owner's laborers and material-men. § 644. Same. Actions by owner. § 645. Provisional remedies. Statutory provision. § 646. Same. Attachment. § 647. Same. Materials exempt from attachment. § 648. Same. Injunction. CHAPTER XXXIII. TIME, PLACE, AND MANNER OF COMMENCING ACTIONS TO FORECLOSE LIEN. § 649. Time of commencing actions to foreclose. § 650. Same. Action to foreclose lien upon the fund. § 651. Place of commencing action to foreclose. Generally. § 652. Same. Statutory provision. § 653. Same. Jurisdiction of superior court. § 654. Same. Amount less than jurisdictional limit. § 655. Same. Foreclosure of lien in Federal courts. § 656. Manner of commencing actions to foreclose. § 657. Same. Summons. § 658. Same. Lis pendens. CHAPTER XXXIV. PARTIES. 659. Parties plaintiff. Statutory provision. : 660. Same. Object of provision. 661. Same. Raising objection. 662. Parties defendant. Generally. (xxiv) CONTENTS. XXV § 663. Same. Owner. § 664. Same. Employers. Copartnerships. § 665. Same. Contractor. § 666. Same. Subcontractor. § 667. Same. Lien claimants. § 668. Same. Holders of prior interests and liens. § 669. Same. Interests pendente lite. CHAPTER XXXV. COMPLAINT. § 670. Complaint. In general. § 671. Stating cause of action. § 672. General rules of pleading contract. § 673. Same. Common counts. § 674. Same. Technical defects cured by acts of the parties. § 675. Same. Express contract. § 676. Same. Conditions precedent. § 677. Same. Completion of building. S 678. Same. Certificate of architect. § 679. Same. Prevention of performance. § 680. Same. Debt due. § 681. Same. Non-payment of indebtedness to plaintiff. § 682. . Same. Premature payment to contractor by owner. § 683. Notice to owner. § 684. Same. Indebtedness due contractor from owner at time of notice. § 685. Same. Complaint by subcontractor's material-man. § 686. Same. Notice to contractor. Action against fund. § 687. Request of owner. Subclaimant. § 688. Contract alleged presumed to be non-statutory. § 689. Void contract. § 690. Same. Agreed price. Value. § 691. Same. Request of owner. § 692. Ownership. § 693. Knowledge of improvement by owner. § 694. Notice of non-responsibility. § 695. Agency. Authority of person causing improvement to be made. § 696. Same. Mining claim. § 697. Same. Contractor as agent of owner. § 698. Same. Allegations to bind contractor. § 699. Materials. § 700. Same. Defect in comi)laint waived. § 701. Same. Materials furnished. Dates. § 702. Employment. Death of owner. XXvi CONTENTS. § 703. Nature of labor. § 704. Same. Grading and other work. § 705. Object of labor. Well. § 706. Claim of lien. Time of filing. S 707. Same. Statutorj' completion for purpose of filing. § 708. Same. Alleging contents of claim. Generally. § 709. Same. Name of owner. § 710. Same. Description of property to be charged with the lien. § 711. Same. Claim of lien as exhibit to complaint. § 712. Same. Terms, time given, and conditions of contract. § 713. Same. Variance between claim as an exhibit and allega- tions of complaint. § 714. Same. Unnecessary statements in claim as an exhibit. § 715. Other interests. For what purpose alleged. § 716. Same. Alleging no other claim upon fond. § 717. Description of property. § 718. Same. Land for convenient use and occupation. § 719. Same. Description of whole or part of building. § 720. Same. Description in claim of lien referred to. § 721. Damages. § 722. Verification of complaint. § 723. Joinder of causes of action in complaint. § 724. Same. Designating causes of action separately. § 725. Same. Reference from one cause of action to another. § 726. Same. Actions that may be united in one complaint. § 727. Same. Objections, how raised. CHAPTER XXXVI. DEMURRER. § 728. Demurrer. Generally. § 729. General demurrer. § 730. Same. Filing claim of lien. Time of completion of build- ing. § 731. Same. Cessation from work. § 732. Same. Claim of lien not setting forth plans and specifica- tions. § 733. Same. Variance between claim as exhibit and body of com- plaint. § 734. Special demurrer. Misjoinder of parties. § 735. Same. Ambiguity and uncertainty. Conflict between claim as exhibit and body of complaint. § 786. Same. Conflict. Bond as exhibit and allegations of com- plaint. § 737. Same. Conclusions of law. CONTENTS. XXVn CHAPTER XXXVII. ANSWER, AND OTHER PLEADINGS. § 738. Answer. In general. § 739. Same. General denial. § 740. Same. Denials of conclusions of law. § 741. Same. Negative pregnant. § 742. Same. Denials on information and belief. § 743. Same. Exception to rule. § 744. Same. Evasive denials. § 745. Same. Deficiencies of complaint cured by answer. § 746. Same. Special defenses. § 747. Same. Neglect of contractor to supply materials and pro- ceed with work. § 748. Same. Abandonment. § 749. Same. Payments made by owner. § 750. Same. Void contract as defense. § 751. Same. Void contract no defense in personam. § 752. Same. Mechanic's lien as defense to mortgage foreclosure. § 753. Same. Counterclaim. Payments. § 754. Same. Judgment and costs in action against agent. § 755. Same. Orders paid. § 756. Same. Damages. § 757. Same. Future repairs. § 758. Same. Damages for delay. § 759. Cross-complaint. § 760. Same. Setting up mechanic's lien in mortgage foreclosure. § 761. Same. Damages. § 762. Same. Payments. § 763. Supplemental answer. Decree of foreclosure of mortgage. CHAPTER XXXVIII. EVIDENCE. § 764. Scope of chapter. § 765. General rule as to exclusion of evidence. § 766. Admissions. § 767. Attorneys' fees. § 768. Description of property. § 769. Extent of land for convenient use and occupation. § 770. Books of account. § 771. Claimant as witness against estate. § 772. Fixtures. Intention of parties. § 773. Judicial notice. § 774. Parol evidence. Assignment. XXviii CONTENTS. § 775. Same. Parol evidence to explain meaning of words. § 776. Notice. Probate proceedings. § 777. Questions assuming matter in dispute. § 778. Receipt. § 779. Agency. § 780. Same. Special statutory provision. Presumption. § 781. Same. Overcoming presumption. Knowledge. § 782. Same. Knowledge of lack of agency. § 783. Same. Knowledge that employer incurred indebtedness on his own account. § 784. Same. Proof of knowledge of owner. § 785. Burden of proof. Generally. § 786. Same. Priorities. § 787. Same. Time of filing claim of lien. § 788. Same. Cessation from work. § 789. Certificate as evidence. § 790. Same. Conclusiveness of cei'tificate. § 791. Same. Certificate as evidence of time of completion of building. § 792. Completion of building. § 793. Same. Statutory evidence. § 794. Non-completion of building. § 795. Claim of lien. As evidence of lien. § 796. Same. Objections to contents of claim. § 797. Extra work. § 798. Valid contract. § 799. Same. Parol modifications of written contract. § 800. Same. Contract admissible to show character of building. § 801. Same. Contract as evidence with reference to time of per- formance of labor. § 802. Inadmissibility of indefinite contract. § 803. Parol evidence in aid of false reference. § 804. Parol evidence not admissible for construction of contract. § 805. Same. Rule not applicable to mere memorandum. § 806. Same. Performance of contract. § 807. Void original contract admissible for what purpose. § 808. Same. Invalidity, how shown. § 809. Mai performance of work. § 810. Liquidated damages. § 811. Damages. Circumstances surrounding execution of con- tract. Defendant in default. § 812. Presumption of knowledge by subclaimants of valid con- tract. § 813. Evidence of benefit conferred. § 814. Acceptance of performance. § 815. Evidence of liability in case of failure to perform, or aban- donment. CONTENTS. XXIX § 816. Estoppel as evidence. General rule. § 817. Same. Judgment. § 818. Same. Owner estopped. § 819. Same. Owner estopped by acts of reputed owner. § 820. Same. Surety not estopped to foreclose lien. § 821. Same. Estoppel of contractors on bond. § 822. Forfeiture and fraud. § 823. Same. Rescission as evidence of fraud. § 824. Same. Fraudulent representations. § 825. Use of materials in building. § 826. Money advanced. § 827. Questions of fact. § 828. Questions of law. § 829. Value. Valid contract as evidence thereof. Action on im- plied contract. § 830. Same. Common counts. § 831. Same. Contract as evidence of extra work. Express con- tract. § 832. Same. Void contract. § 833. Same. Market price. Usual price. § 834. Same. Other evidence of value. CHAPTER XXXIX. VARIANCES. § 835. Variances. Generally. § 836. Claim of lien. Pleadings. Proof. Generally. § 837. Claim of lien. Pleadings. Material variances. § 838. Same. Persons contracting. Husband and wife. § 839. Same. Immaterial variances. § S40. Same. Valid, void contract. Owner purchasing directly. § 841. Same. Description of property. § 842. Same. Payments. § 843. Claim of lien and proof. Generally. § 844. Same. Material variances. § 845. Same. Time of payment. § 846. Same. Nature of labor. § 847. Same. Deducting credits and offsets. Amount paid. § 848. Same. Immaterial variances. § 849. Same. Person contracting. §850. Same. Contract. Date of contract. §851. Same. Implied contract. Express contract. § 852. Same. Nature of work. § 853. Pleading and proof. Generally. § 854. Same. Material variances. Contract. XXX CONTENTS. § 855. Same. Valid, void contract. Contracting directly with owner or agent. § 856. Same. Indefinite contract. § 857. Same. Person contracting. § 858. Same. Nature of work. § 859. Same. Fund. Contractual indebtedness. § 860. Same. Immaterial variances. § 861. Same. Time of payment. § 862. Same. Subclaimant. Owner's employee. § 863. Same. Bond. Signed by principals. Unsigned. CHAPTER XL. TRIAL AND PRACTICE. § 864. Practice. In general. § 865. Amendment. Express and implied contract. § 866. Same. Modification of contract. § 867. Same. Description of property. § 868. Same. Relation of amendment to time of commencing action. § 869. Consolidation of actions. § 870. Same. Rights of claimants against one another. § 871. Deposit of money in court. § 872. Same. Payment of balance of fund. § 873. Intervention. Effect of. § 874. Same. Right to intervene. § 875. Jury trial. § 876. Same. Verdict. Setting aside verdict. § 877. New trial. § 878. Nonsuit. When sustained upon appeal. § 879. Same. When not granted. § 880. Same. Statute of limitations. § 881. Same. Time of filing claim. § 882. Same. Excessive claim. Forfeiture. § 883. Same. Admission in answer. Contract. § 884. Same. Common counts. Express contract. CHAPTER XLI. FINDINGS. § 8Sr;. Findings. Scope of chapter. § 886. Issues to be found up"on. § 887. Finding to cover entire issue. § 888. Same. Defective findings. CONTENTS. XXXI § 889. Ultimate facts to be found. § 890. Immaterial issues. § 891. Same. Knowledge of owner. Notice of non-responsibility. § 892. Segregating items of contract price. § 893. Contradictory findings. § 894. Findings in consolidated action. § 895. Findings of fact and conclusions of law. § 896. Same. Void contract. § 897. Findings sufficient to support judgment. § 898. Agency. § 899. Same. Insufficient finding. § 900. Same. Request of owner. § 901. Same. Void contract. § 902. When findings may not be attacked. CHAPTER XLII. DECEEE. § 903. General nature of decree foreclosing liens. § 904. Effect of decree on third persons. § 90-'). Consolidated action. § 906. Kind of money in which judgment is to be satisfied. § 907. Interest. § 908. Same. Contractor. § 909. Same. Unliquidated demands. § 910. Same. Interest of subcontractor's claimants, charge against subcontractor. § 911. Same. Valid contract. Payment of fund into court by owner. § 912. Default. Modification of judgment. § 913. Default judgment against owner. § 914. Personal judgment. When not required. § 915. Same. When obtained. § 916. Same. Purchaser of property assuming debt. § 917. Same. Notice to owner to withhold payments. § 918. Same. Subclaimant against contractor. Default. § 919. Same. When not given. § 920. Same. Death of owner. Recovery against estate. § 921. Same. Jurisdiction of superior court to render personal judgment in suit to foreclose lien. § 922. Deficiency judgment. § 923. Same. Notice to owner to withhold payments. § 924. Same. Judgment for gross amount. !; 925. Same. Form of judgment. § 926. Prior mortgage. Decree of sale. XXxii CONTENTS. § 927. Interests in land. When can be ordered sold. § 928. Recitals in decree. Foreclosure of interest. § 929. Same. Ownership. Knowledge. § 930. Extent of lien. Statutory provision. § 931. Same. Necessity of designating property to be sold. § 932. Same. Effect of failure to define extent of land. § 933. Same. Order directing sale of entire building. § 934. Same. Land necessary for convenient use and occupation. CHAPTER XLIII. COSTS AND ATTORNEYS' FEES. 935. Costs and attorneys' fees. Statutory provision. 936. Costs. Preparing, filing, and recording claim of lien. 937. Same. Recovery by owner. 938. Same. Recovery of costs against owner. Prolonging liti- gation. 939. Same. Owner may set off costs and interest against con- tractor when. 940. Attorneys' fees. Unconstitutionality of provision. ( 941. Same. Attorneys' fees not allowed, except on foreclosure of liens on property. 942. Same. Nature of attorneys' fees allowed, and their relation to costs. ( 943. Same. Measure of attorneys' fees. I 944. Same. Relation of legal services to action. ! 945. Same. Agreement as to fees. ! 946. Same. Lower court fixing attorneys' fees in supreme court. i 947. Same. When owner not liable for attorneys' fees. CHAPTER XLIV. SALE AND REDEMPTION. § 948. Sale. In general. § 949. Same. Manner of executing judgment. § 950. Same. " Writ " not an " execution." § 951. Same. Time of sale. § 952. Same. Application of proceeds to junior executions. § 953. Same. Sale of leasehold interest. § 954. Right of redemption. § 955. Same. Redemption by subsequent mortgagee not made a party. CONTENTS. XXXlll CHAPTER XLV. APPEAL. § 956. Appeal. In general. Statutory provisions. § 957. Error, how reviewed. Exclusion of evidence. § 958. Same. Writ of review. § 959. Parties to appeal. § 960. Same. Definition of adverse party. § 961. Same. Appeal from judgment denying lien. Death of one personally liable. § 962. Notice of appeal. Contents. Sale of property. § 963. Same. Personal judgment against contractor. § 964. Same. Upon whom served. § 965. Same. Contractor not adverse party. § 966. Same. Contractor adverse party. Default. § 967. Same. Subsequent mortgagee. Injuriously affected. § 968. Same. Beneficially affected. § 969. Same. Who need not be served with notice of appeal. § 970. Same. Service waived by stipulation. § 971. Bond for costs. Staying judgment. Lien subordinate to lien foreclosed. § 972. Stay bond. Lien enforced. § 973. Insufficient record. Compliance with specifications. Void contract. § 974. Presumptions on appeal. In general, § 975. Same. Extent of land. § 976. Same. Support of findings. § 977. Same. For what work amount found due. § 978. Same. What not presumed on appeal. § 979. What not involved. Validity of deficiency judgment against contractor. Appeal by owner. § 980. Findings. When objections not considered. § 981. Same. On appeal from order denying motion for new trial. § 982. Same. Who cannot attack findings. General creditors. § 983. Harmless error. § 984. Same. Sufficiency of claim of lien. § 985. Objecting on appeal for first time. Contract not entirely filed. § 986. Same. Description of land. § 987. Same. Uncertainty of interest in property. § 988. Consolidated cases. Hearing on appeal. § 989. Order on appeal. New trial. § 990. Same. New trial. When sustained. § 991. Same. Attorneys' fees. Mech. Liens — C PAT^T TIT. FORMS. Form No. 1. Form No. 2. Form No. 3. Form No. 4. Form No. 5. Form No. 6. Form No. 7. Form No. 8. Form No. 9. Form No. 10. Clause for written changes in Clause for arbitration. Clause for damages for delay CHAPTER XLVI. CONTRACTS, NOTICES, CLAIMS, COMPLAINTS, ETC. Statutory original contract. Skeleton form. Building contract. Clause for working-drawings. Building contract. Clause for delays. Build. .5 contract. Clause for certificates of archi- tect as to payments. Building contract. Clause for delay in payments by owner. Building contract. Clause for construction of draw- ings and specifications. Building contract. Clause for alterations in con- tract. Building contract contract. Building contract Building contract by contractor. Building contract. Clause for liability in case of destruction of building before completion. Owner and contractor sharing loss. Building contract. Clause for liability in destruction of building before completion, assuming loss. Building contract. Clause for inspection and proval of work. Building contract. Clause for completion of build- ing by owner, upon default of contractor. Builder's non-statutory original contract. Short form. (Agreement to build a house according to a plan annexed, material to be furnistied by owner.) Bond for performance of original contract. Notice of non-responsibility by owner. Structure. Notice of non-responsibility by owner. Mining claim. Statement of contractor. Made to architect or owner as to liens, to obtain payment. Notice to owner of furnishing materials or per- forming labor. (xxxiv) Form No. 11. Form No. 12. Form No. 13. irorm No. 14. Form No. 15. Form No. 16. Form No. 17. Form No. 18. Form No. 19. Form No. 20. case of Owner ap- CONTEXTS. XXXV Form No. 21. Form No. 22. Form No. 23. Form No. 24. Form No. 25. Form No. 26. Form No. 27, Form No. 28. Form Form Form Form Torm Form Form Form Form No. 29. No. 30. No. 31. No. 32. No. 33. No. 34. No. 35. No. 36. No. 37. Form No. 38. Form No. 39. Form No. 40. Notice, by owner, of completion of building, or of cessation from labor. Verification to foregoing notice. Claim of lien. Original contractor. Structure. Verification to the foregoing. Claim of lien. (Owner's material-man or laborer.) Structure. Miner's claim of lien. General form. Claim of lien. Subclaimant; subcontractor in the first degree; contractor's material-man or laborer. Structure. Claim of lien against two contiguous buildings owned by the same person. General form. Claim of lien for grading lot in incorporated city. Owner's notice to contractor to defend lien suits. Release of lien. Complaint for foreclosure of lien. Original contrac- tor, under non-statutory original contract. Complaint for foreclosure of original contractor's lien, under statutory original contract. Complaint of lien-holder for grading or improving lot in incorporated city. Complaint for foreclosure of subclaimant's lien. Order of reference. Notice by contractor that he intends to dispute ac- count. Findings and decision. Foreclosure of lien of own- er's material-men, partners, on two houses, prop- erty sold during construction. Decree. Foreclosing lien of material-men. cojiart- ners, on two buildings, property sold during con- struction. Satisfaction of judgment. TABLE OF CORRELATED SECTIONS. LIST OF ABBREVIATIONS. CALIFORNIA. Kerr's Cyc. Code Civ. Proc. Kerr's Cyclopedic Code of Civil Procednre. ALASKA. Civ. Code. Civil Code of 1900 (act of Congress June 6, 1900, ch. xxviii; 31 Stats, at Large, ch. dcclxxxvi, p. 321; 3 Gould and Tucker's Notes U. S. Rev. Stats., pp. 224, 337; 1 Fed. Stats. Ann., p. 282). ARIZONA. Rev. Stats. 1901. Revised Statutes of 19d1, tit. xl, ch. ii. COLORADO. 3 Mills's Ann. Stats., 2d ed. 3 Mills's Annotated Statutes, second edition (Laws 1899, pp. 261 et seq.). HAWAII. Bev. Laws. Revised Laws of 1905, ch. cxl. IDAHO. Sess. Laws 1899, p. 147. Session Laws of 1899, p. 147. MONTANA. Code Civ. Proc. Code of Civil Procedure, tit. iv. NEVADA. Cutting's Comp. Laws. Cutting's Compiled Laws of 1900 (act of March 14, 1875). NEW MEXICO. Comp. Laws. Compiled Laws of 1897. OKLAHOMA. Rev. & Ann. Stats. Wilson's Revised and Annotated Statutes of 1903 (4817) S 619- (4831) § 633, ch. 66, art. 27. OREGON. Bellinger and Cotton's Ann. Codes and Stats. Bellinger and Cotton's Anno- tated Codes and Statutes. UTAH. Rev. Stats. Revised Statutes of 1898, §§ 1372-1400. WASHINGTON. Pierce's Code. Pierce's Washington Code. WYOMING. Bev. Stats. Revised Statutes of 1899. This table may be used to advantage by attorneys who prefer to trace the decisions of their own courts under each appropriate head, and to examine the allied decisions of other jurisdictions. It will also be found convenient in tracing cases decided hereafter. The table is arranged alphabetically, by subjects. (xxxvii) XXXviii TABLE OF CORRELATED SECTIONS. ABANDONMENT OR BREACH OF CONTRACT BY CONTRACTOR. AMOUNT APPLICABLE TO LIENS. Kerr's Cyc. Code Civ. Proc, S 1200. (§§358 et seci., post.) Colorado. See 3 Mills's Ann. Stats., 2d ed., S '-'SGS. Utah. See Rev. Stats., § 1374. AGENCY FOR OWNER. MINES. Kerr's Cyc. Code Civ. Proc, § 1183. (§ 578, post.) Alaska. See Civ. Code, § 262. Idaho. Sess. Laws 1899, p. 147. Nevada. Cutting's Comp. Laws, § 3881. AGENCY FOR OWNER. STRUCTURE. Kerr's Cyc. Code Civ. Proc, § 1183. (§§ 572 et seq., post.) Alaska. Civ. Code, § 262. Arizona. Rev. Stats. 1901, § 2906. Colorado. 3 Mills's Ann. Stats., 2d ed., § 2867. Idaho. Sess. Laws 1899, p. 147, § 1. Nevada. Cutting's Comp. Laws, § 3881. New Mexico. Comp. Laws, § 2217. See Comp. Laws, § 2304. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5640. Utah. Rev. Stats., § 1372. Washington. Pierce's Code, § 6102, as amended Laws 1905, ch. cxvi. Wyoming. Rev. Stats., § 2907. ALTERATION OF ORIGINAL CONTRACT. Kerr's Cyc. Code Civ. Proc, § 1184. (§§268, 326 et seq., post.) Colorado. 3 Mills's Ann. Stats., 2d ed., § 2868. Utah. Rev. Stats., §§ 1374, 1376 (payments). AMENDMENT OF CLAIM OR STATEMENT. (§415, post.) Oklahoma. Rev. & Ann. Stats., (4821) § 623. Washington. Pierce's Code, § 6106. APPEALS. Kerr's Cyc. Code Civ. Proc, §1199. (§§956 et seq., post.) Montana. Code Civ. Prof.. § 2137. New Mexico. See Laws 1907, p. 105. TABLE OF CORRELATED SECTIONS. XXXIX ASSIGNEES. (§§ 588 et seq., post.) Arizona. Eev. Stats. 1901, §2912. Colorado. 3 Mills's Ann. Stats., 2d ed., § 2883. Nevada. Cutting's Comp. Laws, § 3897. Oklahoma. Eev. & Ann. Stats., (4820) § 622. Utah. Rev; Stats., § 1396. Washington. Pierce's Code, § 6108. See Pierce's Code, § 6106. ATTORNEYS' FEES AND COSTS. Kerr's Cyc. Code Civ. Proc, § 1195. (§§935 et seq., post.) Alaska. Civ. Code, § 270. Colorado. 3 Mills's Ann. Stats., 2d ed., § 2882. Idaho. Sess. Laws 1899, p. 150, § 12. Nevada. Cutting's Comp. Laws, §3892, as amended Stats. 1903, p. 51. Ne^ Mexico. Comp. Laws, § 2229. Oklahoma. Rev. & Ann. Stats. (4825), §627. Oregon. 2 Bellinger and Cotton's Ann. Codes and Stats., § 5648 (structures); §5666 (improving land); §5672, as amended Gen. Laws 1907, p. 295 (mines). Utah. Rev. Stats., § 1400. Washington. Pierce's- Code, § 6113. Wyoming. Rev. Stats., § 2897. BOND OF CONTRACTOR TO BE FILED. PENALTIES. Kerr's Cyc. Code Civ. Proc, § 1203. (§§281 et seq., and §§ 605 et seq., post.) Oklahoma. Rev. & Ann. Stats., (4829) § 631, (4830) § 632, (4831) § 633. Washington. Pierce's Code, § 6102, as amended Laws 1905, eh. cxvi. CLAIM OF LIEN. AGAINST TWO OR MORE IMPROVEMENTS. Kerr's Cyc. Code Civ. Proc, §1188. (§§368, 406, 407, 447 et seq., post.) Colorado. See 3 Mills's Ann. Stats., 2d ed., § 2869. Idaho. Sess. Laws 1899, p. 148, § 7. Nevada. Cutting's Comp. Laws, § 3886. New Mexico. Comp. Laws, § 2222. Utah. Rev. Stats., § 1387. Washington. Pierce's Code, § 6109. Xl TABLE OF CORRELATED SECTIONS. CLAIM OF LIEN AGAINST TWO OE MOEE IMPROVEMENTS. PRIORITIES. Kerr's Cyc. Code Civ. Proc, §1188. (§§502, 503 et seq., post.) Idaho. Sess. Laws 1899, p. 152, § 7. Nevada. Cutting's Comp. Laws, § 3886. New Mexico. Comp. Laws, § 2222. Washington. Pierce's Code, § 6109. CLAIM OF LIEN. CONTENTS. Kerr's Cyc. Code Civ. Proc, § 1187. (§§370 et seq., post.) Alaska. Civ. Code, § 266. Arizona. Rev. Stats. 1901, §2889 (contract or itemized account); Rev. Stats. 1901, § 2891 (description) ; Rev. Stats. 1901, § 2898 (at- tested account). Colorado. 3 Mills's Ann. Stats., 2d ed., § 2875. Hawaii. Rev. Laws, § 2174. Idaho. Sess. Laws 1899, p. 148, § 6. Montana. See Code Civ. Proc, § 2131, as amended Laws 1901, p. 162 (account). Nevada. Cutting's Comp. Laws, § 3885, as amended Stats. 1903, p. 51. New Mexico. Comp. Laws, § 2221. Oklahoma. Rev. and Ann. Stats., (4818) §'620, (4819) § 621. Oregon. 2 Bellinger and Cotton's Ann. Codes and Stats., § 5644 (structures); §5664 (improving land); §5669, as amended Gen. Laws 1907, p. 295 (mines). Utah. Rev. Stats., § 1386. See Rev. Stats., §§ 1388, 1399. Washington. Pierce's Code, § 6106. Wyoming. Rev. Stats., §§2871, 2872, 2879 (mines); §2893 (struc- tures). CLAIM OF LIEN, OE STATEMENT. MANNER OF RECORDING. FEES. Kerr's Cyc. Code Civ. Proc, § 1189. (§§ 416 et seq., post.) Alaska. Civ. Code, § 267. Arizona. Rev. Stats. 1901, § 2889 (contract or itemized account) ; §2890 (verbal contract). Hawaii. Rev. Laws, § 2175. Idaho. Sess. Laws 1899, p. 152, § 9. Montana. Code Civ. Proc, § 2131, as amended Laws. 1901, p. 162 (account); Code Civ. Proc, §2132. Nevada. Cutting's Comp. Laws, § 3887. New Mexico. Comp. Laws; § 2223. TABLE OF CORRELATED SECTIONS. xli CLAIM OF LIEN, OR STATEMENT. MANNER OF RECORDING. FEES. (Continued.) Oklahoma. Rev. & Ann. Stats., (4818) § 620, (4819) § 621. Oregon. 2 Bellinger and Cotton's Ann. Codes and Stats., § 5645 (striK-tures); §5665; §5670, as amended Gen. Laws 1907, p. 296 (mines). Utah. Rev. Stats., § 1389. Washington. Pierce's Code, § 6107. Wyoming. Rev. Stats., §§2871, 2872, 2879, 2881 (mines); §2894 (structures). CLAIM OF LIEN, OR STATEMENT. TIME OF FILING FOR RECORD. Kerr's Cyc. Code Civ. Proc, §1187. (S§422 et seq., post.) Alaska. Civ. Code, § 2GG. Arizona. Rev. Stats. 19ul, §§2889, 2898 (contract or account). Idaho. See Sess. Laws 1899, p. 148, § 6; p. 151, § 5. Montana. Code Civ. Proc, § 2133. Nevada. Cutting's Comp. Laws, § 3885, as amended Stats. 1903, p. 51. New Mexico. Comp. Laws, § 2221. Oklahoma. Rev. & Ann. Stats., (4818) § 620, (4819) § 621. Oregon. 2 Bellinger and Cotton's Ann. Codes and Stats., § 5669, as amended Gen. Laws 1907, p. -295 (mines). See §5664. Utah. Rev. Stats., § 1386. See § 1388. Washington. Pierce's Code, § 6106. Wyoming. Rev. Stats., §§2871, 2S72 (mines). CLAIM OF LIEN. STATUTORY COMPLETION FOR PURPOSE OF FILING. Kerr's Cyc. Code Civ. Proc, §1187. (§§348 et seq., and §§422 et seq.., post.) Colorado. 3 Mills's Ann. Stats., 2d ed., § 2875. CONSOLIDATION OF ACTIONS. Kerr's Cyc. Code Civ. Proc, §1195. (§§869 et seq., post.) Alaska. Civ. Code, § 292. Colorado. 3 Mills's Ann. Stats., 2d ed., § 2877. Idaho. Sess. Laws 1899, p. 150, § 12. Nevada. Cutting's Comp. Laws, § 3892, as amended Stats. 1903, p. 51. New Mexico. Comp. Laws, § 2229. Oklahoma. Rev. & Ann. Stats., (4823) § 625. Xlii TABLE OF CORRELATED SECTIONS. CONSPIRACY TO MAKE CONTRACT PRICE APPEAR LESS. Kerr's Cyc. Code Civ. Proc, § 1202. (§ 314, post.) CONSTRUCTION OF STATUTE. Kerr's Cyc. Code Civ. Proc, §§ 4, 1183, 1184. (§§ 24-27, post.) Washington. Pierce's Code, § 6119. CONTRACTOR LIABLE TO OWNER FOR EXCESSIVE LIEN PAYMENTS. Kerr's Cyc. Code Civ. Proc, §1193. (§§64, 510 et seq., post.) Alaska. Civ. Code, § 272. Arizona. Rev. Stats. 1901, § 2901. Nevada. Cutting's Comp. Laws, § 3890. New Mexico. Comp. Laws, § 2227. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5650. Washington. Pierce's Code, § 6111. Wyoming. Rev. Stats., § 2906. CONTRACTOR TO DEFEND LIEN SUITS. Kerr's Cyc. Code Civ. Proc, §1193; (§§64, 510 et seq., post.) Alaska. Civ. Code, § 272. Arizona. Rev. Stats. 1901, § 2901. Idaho. Sess. Laws 1899, p. 148, § 10. Nevada. Cutting's Comp. Laws, § 3890. New Mexico. Comp. Laws, § 2227. Oklahoma. Rev. & Ann. Stats., (4822) § 624. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5650. Washington. Pierce's Code, § 61^x, Wyoming. Rev. Stats., § 2906. COSTS. Kerr's Cyc. Code Civ. Proc, § 1195. (§§ 936 et seq., post.) Colorado. 3 Mills's Ann. Stats., 2d ed., § 2882. Idaho. Sess. Laws 1899, p. 150, § 12. Nevada. Cutting's Comp. Laws, §3892, as amended Stats. 1903, p. r,]. New Mexico. Comp. Laws, § 2229. Oklahoma. Rev. & Ann. Stats., (4822) § 624, (4826) § 628. Utah. Rev. Stats., § 1394. TABLE OP CORRELATED SECTIONS. xliii COUNTEECLAIMS. Kerr's Cyc. Code Civ, Proc, §1184. (§S515, 516, post.) Colorado. 3 Mills's Ann. Stats., 2d ed., § 2868. Utah. fiev. Stats., § 1375. DEFICIENCY JUDGMENT. Kerr's Cyc. Code Civ. Proc, § 1194. (§§ 922 et seq., post.; Alaska. See Civ. 'ode, §270. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § -5618 (stnutures); §.5672, as amended Gen. Laws 1907, p. 296 (mine). Utah. Rev. Stats., § 1393. Washington. Pierce's Code, § 6113. EFFECT OF NON-CONFORMITY OF CONTRACT AND ALTERA- TIONS. Kerr's Cyc. Code Civ. Proc, § 1184. (§§ 271, 319 et seq., post.) EMPLOYER WITHHOLDING MONEYS UPON NOTK^E. Kerr's Cyc. Code Civ. Proc, § 1184. (§§ 547 et seq., post.) Arizona. Rev. Stats. 1901, § 2901. Hawaii. See Rev. Laws, § 2178. EXTENT OF LIEN. INTEREST OF EMPLOYER SUBJECT TO LIEN. Kerr's Cyc. Code Civ. Proc, § 1185. (§§ 459 et seq., post.) Alaska. Civ. Code, § 263. Arizona. Rev. Stats. 1901, § 2906. Colorado. 3 Mills's Ann. Stats., 2d ed., §§ 2869, 2871. Hawaii. Rev. Laws, § 2173. Idaho. Sess. Laws 1899, p. 148, § 4. Montana. Code Civ. Proc, § 2133. Nevada. Cutting's Comp. Laws, § 3883. New Mexico, Comp. Laws, § 2219. Oregon. Bellinger and Cotton's Ann. Codes and Stats.. § .5641. Utah. Rev. Stats., § 1372; § 1382 (mines). Washington. Pierce's Code, § 6103, as amended Laws 1905, ch. cxvi. Wyoming. See Rev. Stats., § 2873 (mines); §§ 2890, 2909. EXTENT OF LIEN. INCORPOREAL RIGHTS. Colorado. 3 Mills's Ann. Stats., 2d ed., § 2873. Utah. Rev. Stats., § 1377, xliv TABLE OF CORRELATED SECTIONS. EXTENT OF LIEN. LEASEHOLD INTEREST. (§ 467, post.) Alaska. Civ. Code, § 263. Colorado. 3 Mills's Ann. Stats., 2d ed., § 2870a. Montana. See Code Civ. Proc, § 592, as amended Laws 1899, p. 124; §2134. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5641 (structure); §5668, as amended Gen. Laws 1907, p. 293 (mine). Utah. Rev. Stats., § 1372; § 1382 (mines). Wyoming. Rev. Stats., §§ 2892, 2909. EXTENT OF LIEN. FOR VALUE. Kerr's Cyc. Code Civ. Proc, § 1184. (§ 456, post.) Arizona. Rev. Stats. 1901, § 2898. Colorado. 3 Mills's Ann. Stats., 2d ed., § 2868. Hawaii. Rev. Laws, § 2173. Utah. Rev. Stats., § 1372. EXTENT OF LIEN LIMITED BY CONTRACT PRICE. Kerr's Cyc. Code Civ. Proc, § 1183. (§§452 at seq., post.) Alaska. Civ. Code, § 272. Colorado. 3 Mills's Ann. Stats., 2d ed., § 2867. Idaho. Sess. Laws 1899, p. 148, § 10. Oklahoma. Rev. & Ann. Stats., (4819) § 621. Utah. Rev. Stats., § 1373. EXTENT OF LIEN. MINING MACHINERY AS FIXTURES. Kerr's Cyc. Code Civ. Proc, § 1192 (1907). (§§ 445, 185 et seq., post.) Arizona. See Rev. Stats. 1901, § 2906. Colorado. See 3 Mills's Ann. Stats., 2d ed., § 2870a. EXTENT OF LIEN. TERRITORIAL. MINES. Kerr's Cyc. Code Civ. Proc, § 1183. (§§ 443 et seq., post.) Alaska. Civ. Code, § 263. Arizona. Rev. Stats. 1901, § 2906. Colorado. 3 Mills's Ann. Stats., 2d ed., § 2870, Utah. Rev. Stats., § 1381. EXTENT OF LIEN. TERRITORIAL. STRUCTURE. Kerr's Cyc. Code Civ. Proc, § 1183. (§§ 438 et seq., post.) Alaska. Civ. Code, § 263. Arizona. Rev. Stats. 1901, §2888; §2893 (outside city); §2894 (in city). TABLE OF CORRELATED SECTIONS. slv EXTENT OF LIEN. TEERITORIAL. STRUCTURE. (Continued.) Colorado. 3 Mills's Ann. Stats., 2d ed., § 2869. Hawaii. See Rev. Laws, § 2173. Idaho. Sess. Laws 1899, p. 148, § 4. Montana. Code Civ. Proc, § 2133. Nevada. Cutting's Comp. Laws, § 3883. New Mexico, Comp. Laws, § 2219. Oklahoma. Rev. & Ann. Stats., (4817) § 619. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5641. Utah. Rev. Stats., § 1379. Washington. Pierce's Code, § 6103, as amended Laws 1905, ch. cxvi. Wyoming. Rev. Stats., §§ 2889, 2890. EXTENT OF LIEN. TERRITORIAL. STRUCTURES. LAND FOR CONVENIENT USE AND OCCUPATION. Kerr's Cyc. Code Civ. Proc, § 1185. (§§ 440 et seq., post.) Alaska. Civ. Code, § 263. Idaho. Sess. Laws 1899, p. 148, §4. New Mexico. Comp. Laws, § 2219. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5641. Utah. Rev. Stats., § 1379. FORFEITURE OF LIEN. Kerr's Cyc. Code Civ. Proc, § 1202. (§§ 632 et seq., post.) FORUM. (§§651 et seq., post.) Alaska. Civ. Code, §270. Arizona. Rev. Stats. 1901, § 2897. Idaho. Sess. Laws 1903, p. 95, amending Rev. Stats., § 3841 (Sess. Laws 1899, p. 150, § 15). Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5648 (struc- tures) ; § 5672 (mines). Wyoming. Rev. Stats., § 2885 (mines). HOMESTEAD. Kerr's Cyc. Code Civ. Proc, § 1241. (§§ 37, 493 et seq., post.) Nevada. Cutting's Comp. Laws, § 550. Oklahoma. Rev. & Ann. Stats., (4817) § 619. Wyoming. Rev. Stats., § 2901. Xlvi TABLE OF CORRELATED SECTIONS. JOINDER OF LIEN CLAIMANTS AS PLAINTrPFS. (See tit. " Parties.") Kerr's Cyc. Code Civ. Proc, § 1195. (§§ 659 et seq., post.) Alaska. Civ. Code, § 292. Arizona. Rev. Stats. 1901, § 2910. Colorado. 3 Mills's Ann. Stats., 2d ed., § 2877, Idaho. See Sess. Laws 1899, p. 148, § 12. Montana. Code Civ. Proc, § 2138. Nevada. Cutting's Comp. Laws, §3892, as amended Stats. 1903, p. .11. New Mexico. Comp. Laws, § 2229. Washington. See Pierce's Code, § 6106. LABOR, NATURE OF. GRADING, ETC., WORK. Kerr's Cyc. Code Civ. Proc, § 1191. (§§ 156 et seq., post.) Alaska. Civ. Code, § 269. Idaho. Sess. Laws 1899, p. 147, § 3. Montana. Code Civ. Proc, § 2130. Nevada. Cutting's Comp. Laws, § 3882. New Mexico. Comp. Laws, § 2218. Oregon. See Bellinger and Cotton's Ann. Codes and Stats., §§ 5647, 5663. Washington. Pierce's Code, § 6104. LABOR, NATURE OF. MINES. Kerr's Cyc. Code Civ. Proc, § 1183. (§§149 et seq., post.) Alaska. Civ. Code, §§ 262, 274. Arizona. Rev. Stats. 1901, §§2904, 2906. Colorado. 3 Mills's Ann. Stats., 2d ed., § 2870. Idaho. Sess. Laws 1899, p. 147, § 1. Montana. Code Civ. Proc, § 2130. Nevada. Cutting's Comp. Laws, § 3881. New Mexico. Comp. Laws, § 2217. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5668, as amended Gen. Laws 1907, p. 293. Utah. Rev. Stats., § 1381. Washington. Pierce's Code, § 6102, as amended Laws 1908, ch. cxvi. Wyoming. Rev. Stats., §§ 2868, 2869, 2875, 2888. LABOR, NATURE OF. STRUCTURES. Kerr's Cyc. Code Civ. Proc, § 1183. (§§ 130 et seq., post.) Alaska. Civ. Code, §§262, 274. Arizona. Rev. Stats. 1901, §§2888, 2898; §2902 (railroad). Colorado. 3 Mills's Ann. Stats., 2d ed., § 2867. TABLE OF CORRELATED SECTIONS. xlvii LABOR, NATUEE OF. STEUCTURES. (Coutinued.) Hawaii. Rev. Laws, § 2173. Idaho. Sess. Laws 1899, p. 147, § 1. Montana, Code Civ. Proc, § 2130. Nevada. Cutting's Comp. Laws, §§3881, 8899. New Mexico. Comp. Laws, § 2217. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §§ .5040, 5652. Utah. Eev. Stats., §§ 1372, 1397. Washington. Pierce's Code, § 6102, as amended Laws 1905, ch. cxvi. Wyoming. Eev. Stats., § 2889. LIABILITY OF CONTRACTOR FOR SUBLIEN JUDGIMENTS AGAINST OWNER. Kerr's Cyc. Code Civ. Proc, S 1193. (S§ 64, 511 et seq., post.) Colorado. 3 Mills's Ann. Stats., 2d ed., § 2868. The statute uses the expression " principal contractor." Idaho. Sess. Laws 1899, p. 148, § 10. LIABILITY OF CONTEACTOR FOE SUBLTENS. Kerr's Cyc. Code Civ. Proc, 8 1193. (§§ 64, 511 et seq., post.) LIMITATION FOE COMMENCING ACTIONS. Kerr's Cyc Code Civ. Proc, S 1190. (§S 649 et seq., post.) Alaska. Civ. Code, § 268. Arizona. Eev. Stats. 1901, § 2909. Colorado, 3 Mills's Ann. Stats., 2d ed., § 2876, Idaho, Sess. Laws 1899, p. 148, § 9. Montana, Code Civ. Proc, § 2139. Nevada. Cutting's Comp. Laws, § 3888, New Mexico, Comp. Laws, § 2224. Oklahoma, Rev. & Ann. Stats., (4821) § 623, (4826) § 628. Oregon. 2 Bellinger and Cotton's Ann. Codes and Stats., § 5646 (structures); §5667 (improving land); §5671, as amended Gen. Laws 1907, p. 296 (mines). Utah. Rov. Stats., § 1390. Washington. Pierce's Code, § 6110. Wyoming. Rev. Stats., §2874 (mines); §2902 (structures), MATERIALS EXEMPT FROM PROCESS. EXCEPTION FOE PURCHASE PRICE. Kerr's Cyc. Code Civ, Proc, §1196. (§647, post.) Alaska. Civ. Code, § 273. Idaho, Sess. Laws 1899, p. 150, § 13, xlviii TABLE OP CORRELATED SECTIONS, MATERIALS EXEMPT FROM PROCESS. EXCEPTION FOR PURCHASE PRICE. (Continued.) Nevada. Cutting's Comp. Laws, § 3893. New Mexico. Comp. Laws, § 2230. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5651. Utah. Rev. Stats., § 1395. Washington. Pierce's Code, § 6116. MISTAKES NOT TO FORFEIT LIEN. Kerr's Cyc. Code Civ. Proc, § 1203a (1907). (§§ 412 et seq., and §§ 632 et sect., post.) Colorado. See 3 Mills's Ann. Stats., 2d ed., § 2875. Montana. Code Civ. Proc, § 2131, as amended Laws 1901, p. 112. NEW TRIAL. Kerr's Cyc. Code Civ. Proc, § 1199. (§ 877, post.) Montana. Code Civ. Proc, § 2137. NOTICE BY CONTRACTOR TO OWNER. OBJECTION TO ACCOUNT. Kerr's Cyc. Code Civ. Proc, § 1202. (§§ 632 et seq., 796 i)ost.) Arizona. Rev. Stats. 1901, § 2900. Wyoming. Rev. Stats., § 2877 (mines). NOTICE OF COMPLETION, OR CESSATION FROM LABOR. Kerr's Cyc. Code Civ. Proc, § 1187. (§§ 425 et seq., post.) NOTICE OF NON-RESPONSIBILITY UPON KNOWLEDGE OF IM- PROVEMENT. STRUCTURES AND MINING CLAIMS. Kerr's Cyc. Code Civ. Proc, S 1192 (1907). (§§169 et seq., post.) Alaska. Civ. Code, § 265. Colorado. 3 Mills's Ann. Stats., 2d ed., § 2871. Nevada. Cutting's Comp. Laws, § 3889. New Mexico. Comp. Laws, § 2226. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5643 (struc- tures) ; §5668, as amended Gen. Laws 1907, p. 293, §§ 1, 6 (mines). NOTICE BY OWNER AS TO CONDITIONS UNDER WHICH WORK IS DONE. Idaho. Act approved March 14, 1899. Utah. Rev. Stats., § 1375. TABLE OF CORRELATED SECTIONS. xHx NOTICE TO OWNER. CONTENTS. SERVICE. Kerr's Cyc. Code Civ. Proc, § 118i. {§§547 et seq., post.) Arizona. Rev. Stats. 1901, §§ 2890, 2899. Colorado. 3 Mills's Ann. Stats., 2d ed., § 2868. Hawaii. Rev. Laws, § 2174. Oklahoma. See Rev. and Ann. Stats., (4819) § 621, Wyoming. See Rev. Stats., § 2876 (mines). OB.TECT OF LABOR. GRADING, ETC. Kerr's Cyc. Code Civ. Proc, § 1191. (§ 184, post.) Alaska. Civ. Code, § 269. Arizona. Rev. Stats. 1901, § 2905. Idaho. Sess. Laws 1899, p. 147, § 3. Montana. Code Civ. Proc, § 2130. Nevada. Cutting s Comp. Laws, § 3882. New Mexico. Comp. Laws, § 2218. Oklahoma. See Rev. & Ann. Stats., (4817) § 619. Oregon. See Bellinger and Cotton's Ann. Codes and Stats., §§ 5647, 5663. Washington. Pierce's Code, § 6104. OBJECT OF LABOR. MINES. Kerr's Cyc. Code Civ. Proc, § 1183. (§§182 et seq., post.) Alaska. Civ. Code, §§ 262, 274. Arizona. Rev. Stats. 1901, §§ 2904, 2906. Colorado. 3 Mills's Ann. Stats., 2d ed., § 2870. Idaho. Sess. Laws 1899, p. 147, § 1. Montana. Code Civ. Proc, § 2130. Nevada. Cutting's Comp Laws, § 3881. New Mexico. Comp. Laws, § 2217. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5668, as amended Gen. Laws 1907, p. 293. Utah. Rev. Stats., § 1381. Washington. Pierce's Code, § 6102, as amended Laws 1905, eh. cxvi. Wyoming. Rev. Stats., §§ 2868, 2869, 2875, 2884. OBJECT OF LABOR. STRUCTURES. Kerr's Cyc. Code Civ. Proc, § 1183. (§§ 166 et seq., post.) Alaska. Civ. Code, §§ 262, 274. Arizona. Rev. Stats. 1901, §§2888, 2898; §2902 (railroad); §2903. Colorado. 3 Mills's Ann. Stats., 2d ed., § 2867. Hawaii. Rev. Laws, §2173. Idaho. Sess. Laws 1899, p. 147. §§ 1, 2. Montana. Code Civ. Proc, §2130. Mech. Liens — D 1 TABLE OF CORRELATED SECTIONS. OBJECT OF LABOK. STRUCTURES. (Continued.) Nevada. Cutting's Comp. Laws, §§ 3881, 3899. New Mexico. Comp. Laws, § 2217. Oklahoma. Rev. & Ann. Stats., (4817) § 619. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §§ .5640, .56-52. Utah. Rev. Stats., §§ 1372, 1397. Washington. Pierce's Code, § 6102, as amended Laws 1905, ch. cxvi. Wyoming. Rev. Stats., § 2889, ORIGINAL CONTRACTOR. DEFINITION OF. Kerr's Cyc. Code Civ. Proc, §§1183, 1184, 1193, 1201. (§§45 et seq., post.) Utah. Rev. Stats., § 1383. OWNER, DEFINITION OF. (§§ 508 et seq., post.) Montana. Code Civ. Proc, § 2140. Wyoming. Rev. Stats., § 2907. OWNER. ACTION BY, AGAINST CLAIMANTS. Kerr's Cyc. Code Civ. Proc, § 1184. (§§ 644, 871 et seq., post.) Oklahoma. Rev. & Ann. Stats., (4826) § 628. OWNER DEDUCTING FROM CONTRACTOR SUBLIEN JUDGMENTS. Kerr's Cyc. Code Civ. Proc, § 1193. (§ 511, post.) Alaska. Civ. Code, § 272. Arizona. Rev. Stats. 1901, § 2901. Colorado. See 3 Mills's Ann. Stats., 2d ed., § 2868. Idaho. Sess. Laws 1899, p. 148, § 10. Nevada. Cutting's Comp. Laws, § 3890. New Mexico. Comp. Laws, § 2227. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5650. Washington. Pierce's Code, § 6111. Wyoming. Rev. Stats., §2906. OWNER WITHHOLDING CONTRACT PRICE. Kerr's Cyc. Code Civ. Proc, § 1193. (§ 514, 'post.) Alaska. Civ. Code, § 272. Arizona. Rev. Stats. 190l, § 2898. Colorado. 3 Mills's Ann. Stats., 2d ed., § 2868. Hawaii. Rev. Laws, § 2178. TABLE OF CORRELATED SECTIONS, U OWNER WITHHOLDING CONTRACT PRICE. (Continued.) Idaho. Sess. Laws 1899, p. 148, § 10. Nevada. Cutting's Comp. Laws, § 3890. New Mexico. Comp. Laws, § 2227. Oklahoma. Rev. & Ann. Stats., (4819) § 621, (4822) § 624. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5650. Washington. Pierce's Code, § 6111. Wyoming. Rev. Stats., §§2876, 2878 (mines); §2906 (structures). PARTIES. (See "Joinder of Lien Claimants.") Kerr's Cyc. Code Civ. Proc, § 1195. (§§659 et seq., post.) Alaska. Civ. Code. § 270. Colorado. 3 Mills's Ann. Stats., 2d ed., §§2877, 2881. Montana. Code Civ. Proc, § 2138. New Mexico. Comp. Laws, § 2229. Oklahoma. Rev. & Ann. Stats., (4822) § 624, (4826) § 628. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5648 (struc- tures); §5672, as amended Gen. Laws 1907, p. 296 (mines). Washington. Pierce's Code, § 6112. Wyoming. Rev. Stats., §2880 (mines); §2896 (structures). PAYMENTS IN MONEY. Kerr's Cyc. Code Civ. Proc, § 1184. (§ 280, post.) Colorado. 3 Mills's Ann. Stats., 2d ed., § 2868. Utah. Rev. Stats., § 1375. PAYMENTS DISTRIBUTED AMONG LIEN-HOLDERS. (§§254 et seq., and §§502 et seq., post.) Alaska. Civ. Code, § 271. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5649. PAYMENTS IN ADVANCE OF WORK. Kerr's Cyc. Code Civ. Proc, § 1184. (§§269 et seq., and § 563, post.) Utah. Rev. Stats., § 1373. PERSONAL ACTION PRESERVED. Kerr's Cyc. Code Civ. Proc, §§ 1197, 1203. (§§ 73, 638 et seq., post.) Kerr's Cyc. Code Civ. Proc, § 1197. (§§ 638, 914 et seq., post.) Colorado. See 3 Mills's Ann. Stats., 2d ed., § 2879. Idaho. Sess. Laws 1899, p. 150, § 14. lii TABLE OF CORRELATED SECTIONS. PEESONAL ACTION PEESEEVED. (Continued.) Nevada. Cutting's Comp. Laws, §§ 3894, 3895. New Mexico. Comp. Laws, § 2231. Washington. Pierce's Code, §§ 6113, 6114. PEESONS ENTITLED. GEADING, ETC., WOEK. Kerr's Cyc. Code Civ. Proc, § 1191. (§§ 42 et seq., post.) Alaska. Civ. Code, § 269. Idaho. Sess. Laws 1899, p. 147, § 3. Montana. Code Civ. Proc, § 2130. Nevada. Cutting's Comp. Laws, § 3882. New Mexico. Comp. Laws, § 2218. Oklahoma. Eev. & Ann. Stats:, (4817) § 619. Oregon. See 2 Bellinger and Cotton's Ann. Codes and Stats., §§ 5647, 5663. Washington. Pierce's Code, § 6104. PEESONS ENTITLED. MINES. Kerr's Cyc. Code Civ. Proc, § 1183. (§§42 et seq., post.) Alaska. Civ. Code, §262. Arizona. Eev. Stats. 1901, § 2904. Colorado. 3 Mills's Ann. Stats., 2d ed., § 2870. Idaho. Sess. Laws 1899, p. 147, § 1. Montana. Code Civ. Proc, § 2130. Nevada. Cutting's Comp. Laws, § 3881. New Mexico. Comp. Laws, § 2217. Oregon. Bellinger an-d Cotton's Ann. Codes and Stats., § 5668, as amended Gen. Laws 1907, p. 293. Utah. Eev. Stats., § 1381. Washington. Pierce's Code, § 6102, as amended Laws 1905, ch. cxvi. Wyoming. Eev. Stats., §§ 2868, 2869, 2875, 2888. PEESONS ENTITLED. STEUCTUEES. Kerr's Cyc. Code Civ. Proc, § 1183. (§§42 et seq., post.) Alaska. Civ. Code, §262. Arizona Eev. Stats. 1901, §§ 2888, 2898, 2902, 2906. ' Colorado. 3 Mills's Ann. Stats., 2d ed., § 2867. Hawaii. Eev. Laws, § 2173. Idaho. Sess. Laws 1899, p. 147, § 1. Montana. Code Civ. Proc, § 2130. Nevada. Cutting's Comp. Laws, §§ 3881, 3899. New Mexico. Comp. Laws, § 2217. Oklahoma. Eev. & Ann. Stats., (4817) § 6l9, (4819) § 621. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5640. TABLE OF CORRELATED SECTIONS. lii* PEESONS ENTITLED. STRUCTURES. (Continued.) Utah. Rev. Stats., §§1372, 1397. Washington. Pierce's Code, § 6102, as amended Laws 1905, ch. cxvi Wyoming. Rev. Sats., § 2889. PRACTICE. Kerr's Cyc. Code Civ. Proc, § 1198. (§§ 864 et seq., post.) Alaska. Civ. Code, § 270. Arizona. Rev. Stats. 1901, §§ 2910, 2913. Colorado. See 3 Mills's Ann. Stats., 2d ed., §§ 2877, 2878, 2879, 2881, 2886. Hawaii. Rev. Laws, § 2177. Idaho. Sess. Laws 1899, p. 150, § 15. Montana. Code Civ. Proc, § 2136. Nevada. Cutting's Comp. Laws, § 3895; Stats. 1907, ch. xc, § 2, act approved March 20, 1907. New Mexico. Comp. Laws, § 2225 (summons). Oklahoma. Rev. & Ann. Stats., (4821) § 623. Oregon. .2 Bellinger and Cotton's Ann. Codes and Stats., §5648 (structures); §5666 (improving land); §5672, as amended Gen. Laws 1907, p. 296 (mines). Utah. Rev. Stats., § 1391. Wyoming. Rev. Stats., §§2886, 2887 (mines); §§2895, 2897, 2898, 2899, 2900 (structures). PREFERENCE ON COURT CALENDAR. Alaska. Civ. Code, § 270. Colorado. 3 Mills's Ann.. Stats., 2d ed., § 2879. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5648. PREMATURE PAYMENTS. Kerr's Cyc. Code Civ. Proc, § 1184. (§§269 et seq., and § 563, post.) Colorado. 3 Mills's Ann. Stats., 2d ed., § 2868. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5649. Utah. Rev. Stats., § 1374. See § 1378. PRIORITIES AS AGAINST OTHERS. Kerr's Cyc. Code Civ. Proc, § 1186. (§§ 486 et seq., post.) Alaska. Civ. Code, § 264. Arizona. Rev. Stats. 1901, § 2908. Colorado. 3 Mills's Ann. Stats., 2d ed., § 2872. • Hawaii. Eev. Laws, § 2176. Idaho. Sess. Laws 1899, p. 148, § 5. liv TABT.E OF CORRELATED SECTIONS, PRIORITIES AS AGAINST OTHERS. (Continued.) Montana. Code Civ. Proc, §§ 2133, 213.5. Nevada. Cutting's Comp. Laws, § 3884, as amended March 14, 1899 (§4, act March 2, 1875). New Mexico. Comp. Laws, § 2220. Oklahoma. Rev. & Ann. Stats., (4817) § 619, (4824) § 626. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5642 (struc- tures); § 5671, as amended Gen. Laws 1907, p. 296 (mines). Utah. Rev. Stats., §§ 1380, 1384, 1385. Washington. Pierce's Code, § 6105. See § 6117 (husband and wife). Wyoming. Rev. Stats., §2873 (mines); §2891 (structures). PROVISIONAL REMEDIES. Kerr's Cyc. Code Civ. Proc, § 1196. (§§ 645 et seq., post.) Hawaii. Rev. Laws, § 2177. RANKING OF LIENS. Kerr's Cyc. Code Civ. Proc, § 1194. (§§ 504 et seq., post.) Alaska. Civ. Code, § 270. Arizona. Rev. Stats. 1901, § 2911. Colorado. 3 Mills's Ann. Stats., 2d ed., §§ 2869, 2874. Hawaii. Rev. Laws, § 2176. Idaho. Sess. Laws 1899, p. 148, § 11. Montana. Code Civ. Proc, § 2133. Nevada. Cutting's Comp. Laws, § 3891. New Mexico. Comp. Laws, § 2228. Oklahoma. Rev. & Ann. Stats., (4827) § 629. Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5648 (struc- tures); §5672, as amended Gen. Laws 1907, p. 296 (mines). Utah. Rev. Stats., §§ 1385, 1391. Washington. Pierce's Code, § 6113. Wyoming. Rev. Stats., §2879 (mines); §2908 (structures). RECORDING LEASE OR CONTRACT. MINE. Kerr's Cyc. Code Civ. Proc, § 1192 (1907). Oregon. Bellinger and Cotton's Ann. Codes and Stats., § 5668, as amended Gen. Laws 1907, p. 293. SALE. Kerr's Cyc. Code Civ. Proc, §§ 681 et seq., and § 1189. (§§948 et seq., post.) Alaska. Civ. Code, § 293. Colorado. 3 Mills's Ann. Stats., 2d ed., § 2880. TABLE OF CORRELATED SECTIONS. aV SALE. (Continued.) Hawaii. See Rev. Laws, § 2177. Montana. Code Civ. Proc, §§2134, 2135. Nevada. Cutting's Comp. Laws, § 3895; Stats. 1907, ch. xc, § 2, act approved Marcli 20, 1907. Oklahoma. Rev. & Ann. Stats., (4824) § 626. Utah. Rev. Stats., § 1392. Wyoming. Rev. Stats., § 2901. SALE OF BUILDING SEPARATELY. (§§16, 188, 190, 948 et seci., post.) Alaska. Civ. Code, § 264. Arizona. Rev. Stats. 1901, §§ 2895, 2896, 2906. Colorado. 3 Mills's Ann. Stats., 2d ed., § 2869. Montana. Code Civ. Proc, §§2134, 2135. Oklahoma. See Rev. & Ann. Stats., (4817) § 619. Oregon. Bellinger and Cotton's Ann. Codes and Stats., §§ 5641, 5642. Washington. Pierce's Code, § 6118. Wyoming. Rev. Stats., § 2891. SATISFACTION OF LIEN. (§§ 634 et seq., post.) Colorado. 3 Mills's Ann. Stats., 2d ed., § 2884. Hawaii. Rev. Laws, § 2176. Montana. Code Civ. Proc, § 2141. Nevada. Cutting's Comp. Laws, § 3896. Utah. Rev. Stats., §1398. Washington. See Pierce's Code, § 6115. Wyoming. Rev. Stats., §§2882, 2883 (mines); §§2903, 2904 (struc- tures). SCHEDULE OF OPERATION OF ACT. (§ 36, post.) Alaska. Civ. Code, § 275. Arizona. Rev. Stats., §§ 2914, 2934. Colorado. 3 Mills's Ann. Stats., 2d ed., § 2887. New Mexico. Comp. Laws, § 2232. Washington. Pierce's Code, § 6120. STATEMENT OF CLAIM, AND NOTICE OF INTENTION TO CLAIM A LIEN. Kerr's Cyc. Code Civ. Proc, § 1183 (§§ 370 et seq., post.) Utah. Rev. Stats., § 1388. Wyoming. Rev. Stats., § 2915. Ivi TABLE OP CORRELATED SECTIONS. STATUTOEY ORIGINAL CONTRACT. CONTENTS. Kerr's Cyc. Code Civ. Proc, § 1183. (§§ 214, 269 et seq., post.) Colorado. 3 Mills's Ann. Stats., 2d ed., § 2867. Utah. See Rev. Stats., §§ 1373, 1375. Wyoming. See Rev. Stats., § 2893. STATUTORY ORIGINAL CONTRACT. MEMORANDUM. Kerr's Cyc. Code Civ. Proc, § 1183. (§§ 300 et seq., post.) Colorado. 3 Mills's Ann. Stats., 2d ed., § 2867. Utah. See Rev. Stats., § 1373. STATUTORY ORIGINAL CONTRACT. PAYMENTS. Kerr's Cyc. Code Civ. Proc, § 1184, (§§269 et sect., post.) Colorado. 3 Mills's Ann. Stats., 2d ed., § 2868. Utah. See Rev. Stats., §§ 1373, 1375, STAYING TRIAL. Oklahoma. Rev. & Ann. Stats., (4823) § 625. SUBCONTRACTOR. DEFINITION. (§§ 66 et seq., post.) Utah. Rev. Stats., § 1383. VOID CONTRACT. Kerr's Cyc. Code Civ. Proc, § 1183. (§§ 286 et seq., §§ 319 et seq., post.) WAIVER OF LIENS. Kerr's Cyc. Code Civ. Proc, § 1201. (§§ 627 et seq., post.) Colorado. 3 Mills's Ann. Stats., 2d ed., § 2885. Washington. See Pierce's Code, § 6115. TABLE OF CASES. A Pages Ahbe V. Marr (Cal.) 5^5 Aberdeen E. Co. v. Blaikie (Scotch) 159 Ackley v. Black Hawk G. M. Co. (Cal.) 34, 63.5, 772 Adams v. Baker (Nev.) 448 Adams V. Burbank (Cal.) ....69, 80, 91, 105, 132, 269, 485, 486, 493, 542, 575, 587, 665, 705, 770, 795, 796 Adams v. Pugh (Cal.) 616 Ah Louis V. Harwood (Cal.) . . . .39, 83, 84, 87, 104, 143, 293, 299, 304, 318, 321, 322, 323, 392, 436, 438, 456, 610, 647, 803 Ainslie v. Kohn (Oreg.)...9, 26, 43, 312, 314, 315, 362, 384, 579, 757 Alberson v. Elk Creek G. M. Co. (Oreg.) 149 Alcatraz M. H. Assoc, v. United States F. & G. Co. (Cal.) 219, 488, 556, 567, 569, 817 Aldrich v. Columbia S. E. Co. (Oreg.) 676, 695, 799 Aldritt V. Panton (Mont.) 264, 376, 584 Aldritt V. Eailroad Co. (U. S.) 145 Alesina v. Stock (Mont.) 376 Alexander v. Fransham (Mont.) 778 Alexander v. Hemrich (Wash.) 294 Allen V. Elwert (Oreg.) 87, 89, 119, 121, 132, 196, 304, 311, 316, 326, 331, 344, 345, 580, 585, 682, 702, 758, 760 Allen V. Lincoln (Hawn.) 562, 605, 701 AJlen V. Kedward (Hawn.).. 8, 9, 11, 15, 22, 71, 75, 87, 199, 289, 313, 342, 343, 410, 480, 495, 529, 545, 699, 701, 748 Allen V. Eeist (Hawn.) 160, 493, 604, 629, 717, 721 Allen V. Eowe (Oreg.) 16, 24, 306, 423, 433, 434, 534, 631 Alvord V. Hendrie (Mont.) 16, 146, 170, 300, 375, 399, 413, 451, 585, 649 American B. Co. v. Eegents of University (Idaho) . .560, 561, 709, 731, 807, 818 American-Hawaiian Eng. & Cons. Co. v. Territory (Hawn.) .. .70, 192 American Nat. Bank v. Barnard (Colo.) 577, 758 American S. & L. Assoc, v. Burghardt (Mout.) 584 American Surety Co. v. Scott & Co. (Old.) . . . . 187, 289, 478, 483, 564, 568, 570 AmeVican Type Founders' Co. v. Packer (Cal.) 267, 733 Amestoy v. Electric E. T. Co. (Cal.) 708 A. M. Holter Hardware Co. v. Ontario M. Co. (Mont.) 8, 9, 88, 170. 177, 378, 447, 726, 740, 796 Anderson v. Bank of Lassen County (Cal.) 708 Anderson v. Bingham (Colo.) 7, 22, 35, 347 (Ivii) Iviii TABT.E OF CASES. Pages Anderson v. Harper (Wash.) 275. 416, 528, 696, 731 Anderson v. Hilker (Wash.) 161, 278, 528. 731 Anderson v. Johnston (Cal.) 206, 2.59, 262, 268, 77,3, 796 Anderson v. McDonald (Wash.) 196, 264, 269, 270 Anglo-American S. & L. Assoc, v. Campbell (D. C.) 448 Anthony v. Nye (Cal.) 641, 642, CSl Antlers Park Regent M. Co. v. Cunningham (Colo.) . . . 16, 35, 48, 87, 420, 421, 533, 770, 784, 792 Antonelle v. Kennedy-Shaw L. Co. (Cal.) Ill Apona V. Kamai (Hawn.) 163, 689 Arata v. Tellurium G. & S. M. Co. (Cal.) 324, 330, 332, 363 Arkansas Eiver L. Eeservoir and Canal Co. v. Flinn (Colo.). . .21. 23, 375, 406, 615, 635, 637 Arkansas River L. R. & C. Co. v. Nelson (Colo.) 121 Armijo v. Mountain E. Co. (N. M.) 14, 151, 157, 398, 575, 610, 647, 654, 725, 750, 784, 803 Armour v. Western Const. Co. (Wash.) 36, 47, 88, 89, 220 Arrington v. Wittenberg (Nev.) 362, 791 Ascha V. Fitch (Cal.) 26 Aste V. Wilson (Colo.) 2, 4, 12, 16, 28, 75, 176, 199, 263, 409, 562, 572, 574 Atkins V. Little (Minn.) 84 Atkinson v. Woodmansee (Kan.) . 48 Atlantic & D. R. Co. v. Delaware C. Co. (A' a.) 172 Ausplund V. ^tna Ins. Co. (Oreg.) 551, 556, 558, 561, 818 Avery v. Butler (Oreg.) 193, 275, 284 Avery v. Clark (Cal.) 9, 423. 434, 449, 456, 459, 744, 793 Ayers v. Green Gold Min. Co. (Cal.) 125, 435, 439, 534, 535, 575 B Baca v. Barrier (N. M.) 270 Backus v. Archer (Mich.) 566 Badger L. Co. v. Marion W. S., E. L. & P. Co. (Kan.) 407 Badger L. Co. y. Maj^es (Neb.) 84 Baggs V. Smith (Cal.) 737 Baird v. Peall (Cal.) 59. 62, 04, HS, 217 Baker v. Doherty (Cal.) 256 Baker v. Lake L. C. & Irr. Co. (Cal.) 377 Baker v. Sinclaire (Wash.) 417, 421, 457, 458 Ball V. Doud (Oreg.) '. 188 Ball V. Houston (Okl.) 73, 426 Ban V. Columbia S. R. Co. (Fed.) 46, 144, 403, 407, 526 Bancroft v. San Francisco Tool Co. (Cal.) 85, 176, 272, 681 Bank of Idaho v. Malheur County (Oreg.) 152,' 154 Bank of Ukiah v. Petaluma Sav. Bank (Cal.) 458 Bank of Woodland v. Treadwell (Cal.) 775 Barber v, Reynolds (Cal.).. 226, 422, 451, 452, 453, 4.54, 456, 465, 493, 578, 585, 592, 595, 603, 619, 760, 781, 782 TABLE OF CASES. lix Pages Bardwell v. Anderson (Mont.) 313, 687, 712, 733 Barilari v. Ferrea (Cal.) 194, 261, 617, 638, 677, 694, 703 Barker v. Doherty (Cal.) 163, 232, 233, 250, 253, 267, 686 Barnard v. McKenzie (Colo.) 4, 8, 16, 23, 91, 757. 759 Barnes v. Colorado Springs & C. C. D. E. Co. (Colo.) 317, 606 Barrows v. Knight (Cal.) 62, 87, 383 Barry v. Coughlin (Cal.) 622, 795 Barton v. Eose (Oreg.) 326, 329, 368, 369 Bartow v. Northern Assur. Co. (S. D.) 658 Bassiek M. Co. v. Sehoolfield (Colo.) 725, 751, 778 Bateman Bros. v. Maple (Cal.) 197, 570 Bates V. County of Santa Barbara (Cal.).. 9, 154, 297, 507, 509, 510, 511, 516, 522, 524, 577, 583, 584, 589, 760, 762, 772, 773 Baum V. Whatcom Co. (Wash.) 218 Beacannon v. Liebe (Oreg.) 758 Beach v. Staper (Oreg.) 57, 529 Bear L. & E. Water Co. v. Garland (Utah) 44 Beatty v. Mills (Cal.) 130, 163, 296, 382, 393, 539, 684, 685 Bcatty V. Parker (Mass.) 4u7 Beck V. O'Connor (Mont.) 422 Becker v. Superior Court (Cal.) 49, 599, 761 Beebe v. Eedward (Wash.) 268, 551, 557, 673, 687, 818 Beers v. Wolf (Mo.) 556 Bell V. Bosche (Neb.) 634 Bell V. Gaylord (N. M.) 461 Bell V. Graves (Wash.) 409, 423, 424, 425, 429, 449, 478 Bell V. Paul (Neb.) 556 Belt V. Poppleton (Oreg.) 485 Bender v. Stettenius (Ohio) 85 Bennett v. Beadle (Cal.) 32, 83, 84, 86, 87, 453, 738 Bennett v. Davis (Cal.) 59. 63, 64, 66, 82 Bennett v. Shaughnessy (Utah) 171. 270 Berentz v. Belmont Oil M. Co. (Cal.) 116, 134, 138, 144, 145, 147, 250, 255, 358, 399, 423, 600, 626. 756 Berentz v. Kern King O. & D. Co. (Cal.) 756 Berka v. Woodward (Cal.) 109, 159 Bethune v. Dozier (Ga.) 556 Bewick v. Muir (Cal.) 87, 145, 146, 356, 399, 456, 461, 600, 661, 668, 737, 738, 750 Bianchi v. Hughes (Cal.) 57, 87, 140, 151, 273, 278, 384, 507, 509, 510, 583, 703, 704, 792, 796 Bierce v. Hutchins (Hawn.) 316, 584, 585 Big BlackfootM. Co. V. Bluebird M. Co. (Mont.). 146, 170, 396, 399, 408 Big Horn L. Co. v. Davis (Wyo.) 6, 378, 452, 661, 737, 802 Billings V. Everett (Cal.) 737 Bingham County A. Assoc, v. Eogers (Idaho) 149 Birch V. Magic Transit Co. (Cal.) 7, 429, 438, 443, 444, 445 Birmingham I. F. v. Glenn Cove S. Mfg. Co. (N. M.) 84 Ix TABLE OF CASES. Pages Bitter v. Mouat L. & I. Co. (Colo.) 43, 58, 312, 321, 322, 330, 345, 360, 367, 508, 609, 717, 782, 793 Black V. Appolonio (Mont.) 22, 26, 306, 313, 577 Blackburn v. Bell (Cal.) 593 Blackman v. Marsicauo (Cal.) 23, 305, 346 Blanshard v. Schwartz (Old.).. 24, 84, 87, 350, 369, 609, 702, 730, 824 Blasingame v. Home Ins. Co. (Cal.) 654 Blethen v. Blake (Cal.) 189, 661, 793 Blinn L. Co. v. Walker (Cal.) 164, 235, 236, 237, 240, 241, 410 Block V. Murray (Mont.) 58, 234, 422, 423, 425 Blumauer v. Clock (Wash.) 36, 117, 572 Blyth V. Eobinson (Cal.) 256, 553, 563, 580, 665 Blyth V. Torre (Cal.) 238, 239, 561, 562, 665, 668, 699 Blythe v. Poultney (Cal.) 483, 516 Board of Comm'rs v. Branham (Fed.) 566 Board of Education v. Blake (Cal.)... 9, 154, 461, 509, 521, 523, 524, 548, 549, 589, 729 Board of Education v. Pressed Brick Co. (Utah) 154 Boas V. Maloney (Cal.) 255, 469, 556, 559 Bodders v. Davis (Ala.) 164 Bogan V. Eoy (Ariz.) 158, 422, 533, 592 Boggs V. Fowler (Cal.) 400 Bolster v. Stocks (Wash.) . .320, 335, 336, 377, 579, 580, 632, 688, 704, 717, 776 Bonner v. Minnier (Mont.) 19, 51, 425 Booth V. Pendola (Cal.) 2, 7, 19, 37, 229, 250, 300, 317, 358, 360, 462, 530, 535, 586, 602, 627, 649, 674, 707, 738, 761 Booths V. Squaw Springs W. Co. (Cal.) 258, 262, 272, 475, 740 Boscow V. Patton (Cal.) 293, 294, 382, 711 Bottomly v. Eector etc. of Grace Church (Cal.) 21, 83, 632, 633 Boucher v. Powers (Mont.) 486, 491, 583, 656, 667 Bowen v. Aubrey (Cal.) 198, 245, 409, 493, 495, 573, 574 Boyce, In re (Nev.) 36 Boyle V. Mountain Key M. Co. (N. M.). .4, 8, 9, 10, 103, 110, 120, 124, 316, 463, 828 Boynton Furnace Co. v. Gilbert (Idaho) 86, 247 Brackett v. Banegas (Cal.) 610, 751 Bradbury v. Butler (Colo.) 18, 585, 685, 733 Bradbury v. Cronise (Cal.) 657, 671, 672^ 704, 752, 797 Bradbury v. Idaho & O. Land Imp. Co. (Idaho). .16, 22, 383, 743, 767, 772 Bradbury v. McHenry (Cal.) 671, 696 Bradford v. Dorsey (Cal.) 595 Brady v. Burke (Cal.) 611 Bragg V. Shain (Cal.) 36, 561, 566, 661, 665 Brainard v. McKenzie (Colo.) 122, 131 Branham v. Nye (Colo.) 308, 334, 337, 602, 604, 609 Bremen v. Foreman (Ariz.) 416, 417, 751 764 TABLE OF CASES. Ixi Pages Biennan v. Clark (Neb.) 566 Brennan v. Swasey (Cal.) 313, 342, 505, 575, 584, 591 Bridges v. Thomas (Okl.) 149, 674, 704 Briggs V. Bruce (Colo.) 750 Briggs V. Hilton (N. Y.) 693 Brill V. De Turk (Cal.).... 9, 27, 68, 208, 209, 210, 211, 409, 489, 559, 657 Bringham v. Knox (Cal.).. 144, 229, 315, 352, 357, 360, 375, 396, 403, 627, 706, 708 Broad, In re (Wash.) 36 Brock V. Bruce (Cal.) 17, 18, 19, 49, 585, 598 Brock V. Williams (Okl.) 75 Brodek v. Farnum (Wash.) 69, 175, 264, 288, 476, 551, 697 Brooks V. Burlington & S. W. E. Co. (U. S.) 35, 357, 406 Brown v. Board of Education (Cal.) 109, 156, 497 Brown v. Everhard (Wis.) 164 Brown v. Harper (Oreg.) 7, 21, 539 Brown v. Olmstead (Cal.) 576 Brown v. Scott (Cal.) 658 Brown v. Welch (N. Y.) 717 Brown v. Winehill (Wash.) 189, 682 Brown's Exrs. v. Farnandis (Wash.) 182, 184, 193, 797, 814 Brubacker v. Bennett (Utah) 49, 304, 338, 771 Brunner v. Marks (Cal.) 348, 403, 404, 646, 672, 713 Bryan v. Abbott (Cal.) 130, 147, 312, 322, 824, 334, 345, 640, 643, 651, 675, 714 Bryant v. Broadwell (Cal.) 613, 629, 647, 695 Bryson v. McCone (Cal.) 64, 66, 82, 165, 268, 272, 291, 475, 590, 647, 676, 798 Bucher v. Thompson (N. M.) 362, 784 Buckeye M. & M. Co. v. Carlson (Colo.) 177 Buckman v. Hatch (Cal.) 708 Buckout V. Swift (Cal.) 152, 592 Buell & Co. V. Brown (Cal.) 341, 382, 383, 431, 715, 741 Builders' S. D. v. O'Connor (Cal.) 32, 48, 49, 77, 667, 768, 770, 771 Bulwer Con. M. Co. v. Standard Con. M. Co. (Cal.) 667 Burke v. Dittus (Cal.) 614, 620, 622, 623 Burleigh B. Co. v. Merchant B. & B. Co. (Colo.) 6, 10. 49, 273, 284, 366, 388, 500, oF)-), 593. 770, 774 Burley v. Hitt (Mo.) 566 Burnett v. Ewing (Wash.) 197 Burnett v. Kirk (Wash.) 197 Burnett v. Stearns (Cal.) 671 Burns v. White Swan M. Co. (Orog.) 593, 599, 600 Burrage v. Bonanza G. & Q. M. Co. (Orog.) 758 Burris v. People's Ditch Co. (Cal.) 658 Burt V. Washington (Cal.) 141 Bush V. Lathrop (N. Y.) 518 Butterworth v. Levy (Cal.) 231, 238, 239, 499 Ixii TABLE OF CASES. G Pages Cadenasso v. Aiitonelle (Cal.) 89, 556, 559 Cadwell v. Brackett (Wash.) 61, 108, 124, 530 Gaboon v. Fortune M. & M. Co. (Utah) 371, 377, 447 Cahoon v. Levy (Cal.) 52, 447, 454, 461, 507, 508 California I. Const. Co. v. Bradbury (Cal.) . . . .227. 230, 232, 243, 411, 471, 672. 746. 808 California M. E. Church v. Seitz (Cal.) 182 California P. W. v. Blue Tent Gonsol. H. G. M. (Cal.). .60, 81, 87, 90, 96, 146, 279, 296, 306, 311, 345, 379, 380, 391, 392, 619 Calvert v. London Dock Co. (Eng.) 567 Camp V. Behlow (Cal.) 230, 252, 254, 707, 792 Camp V. Land (Cal.) 698 Camp V. Mayer (Ga.) 31, 33 Campbell v. Coon (N. Y.) 84 Campbell v. Los Angeles G. M. Co. (Colo.) 34, 49, 770 Campbell v. Manu (Hawn.) 218 Campbell v. Vincent (Wash.) 573 Gampe v. Lassen (Cal.) 671 Canadian & A. M. & T. Co. v. Clarita L. & I. Co. (Gal.) 756 Cannon v. Williams (Colo.) .. .18, 23, 24, 306, 315, 367. 579. 715, 757, 759 Capital L. Co. v. Eyan (Oreg.) 442, 456, 596, 725 Capron v. Strout (Nev.).41, 124, 170, 301, 392, 442, 456, 457, 458, 485 Carey-Lombard L. Co. v. Partridge (Utah) 21, 263, 376, 421, 430, 449, 451, 464, 481, 515 Carpenter v. Furrey (Cal.) 47, 217, 219, 220, 552, 560. 708 Carpenter v. Ibbetson (Cal.) 196, 278, 695 Carriere v. Minturn (Cal.) 768 Carson Opera House Assoc, v. Miller (Xev.) 564 Gary v. Mclntyre (Colo.) 271 Gary Hardware Co. v. McCarty (Colo.) 16, 22, 23, 24, 52, 153, 271, 297, 348, 349, 350, 356, 383, 402, 422, 424, 585 Casey v. Ault (Wash.) 21 Gasserly v. Waite (Mich.) 727 Castagnetto v. Coppertown M. & S. Co. (Cal.) 25, 26, 123, 147, 304, 305, 307, 310, 322, 328, 334, 336, 342, 344, 354, 763, 773, 775, 782, 793, 803, 828 Gastagnino v. Balletta (Cal.) 182, 189, 283, 584, 618, 690, 705, 726, 734, 735 CatteU V. Fergusson (Wash.) 528 Cavanaugh v. Casselman (Cal.) .555 Cement Co. v. Morrison (N. J.) :..... 35 Central etc. Go. v. Condon (Fed.) 717 Central L. & M. Go. v. Burns (Cal.) 492 Central L. & M. Co. v. Center (Cal.). .422, 552, 583, 589, 771, 780, 791 Chamberlain v. Hibbard (Oreg.).. 69, 167, 182, 193, 195, 312, 314. 366, 767 TABLE OF CASES. Ixili Pages Chambers v. Hannum (Alas.) ; 19, 92, 699 Chappius V. Blankman (Cal.) 123, 12.5, 1.58, 409, 411, 420, 4.52, 676 Charles v. Hallaek L. & Mfg. Co. (Colo.) . .273, 410, 608, 618, 6G1, 682, 707, 793, 796, 799 Chase v. Smith (Wash.) 278 Chehalis County v. Ellinger (Wash.) 320 Chevret v. Mechanics' M. & L. Co. (Wash.) 299, 586 Chicago L. Co. v. Dillon (Colo.) .. .3.5, 41. 43, 321, 417, 421, 451, 467, 529, 532 Chicago L. Co. v. Newcomb (Colo.) 4, 6, 8, 9, 16, 23, 35, 37, 38, 39, 76, 162, 209, 217, 223, 231, 334, 338, 410, 480, 493, 529, 711, 715 Childs L. & Mfg. Co. v. Page (Wash.). 173, 183, 620, 719, 810, 813, 816 Chipman v. Emetic (Cal.) 155 Chivell V. Spring Valley G. Co. (Cal.) 773, 776 Choynski v. Cohen (Cal.) 595 Christensen v. Hollingsworth (Idaho) 585 Christnot v. Montana G. & S. M. Co. (Mont.) 198, 301, 485 Church V. Garrison (Cal.) 40 Church V. Smithea (Colo.) 35, 397, 782 City and County of Denver v. Hindry (Colo.) 262 City Council v. Ormand (S. C.) 567 City of Hamilton v. Stelwaugh (Ohio) S9 City of Los Angeles v. Pomeroy (Cal.) 791 City of Seattle v. Smyth (Wash.) 36 City of Seattle v. Turner (Wash.) 671 City of Sterling v. Wolf (111.) 559 Clancy v. Plover (Cal.) 70, 485, 486, 542, 575, 647, 665, 673, 741, 770, 773, 774, 775 Clark V. Brown (Cal.) 585, 599 Clark V. Collier (Cal.) 171, 268, 276, 484, 796 Clark V. Lindsay (Mont.) 453 Clark V. Parker (Iowa) ' 398 ('l;irk V. Taylor (Cal.) 664, 668, 772, 777 Clarke v. Mohr (Cal.) 790 Clear Creek M. Co. v. Root (Colo.) 731, 753 Cline V. Shell (Oreg.) 60, 258, 672, 774 Clough V. City of Sj)okane (Wash.) 154 Cochran v. Baker (Or. g.) 565, 580 Cochran v. Balfe (Colo.) 268, 270 Cochran v. Yoho (Wash.) 269, 651, 673 Cockley v. Brueker (Ohio) 109 Cockrill V. Davie (Mont.) 174, 554, 555 Coggan v. Reeves (Oreg.) 594, 600 Cohn v. Wright (Cal.).. 83, 291, 345, 632, 633, 636, 637, 638, 737, 738 Ooleman V. Oregonian R.Co. (Oreg.) . 13, 17, 144, 413, 458, 461, 479, 526 Collins V. Snoke (Wash.) .. .298, 308, 320, 321, 339, 349, 351, 355, 530, 605 Ixiv tabijE of cases. Pages Colorado Fuel & I. Co. v. Eio Grande S. R. Co. (Colo.) 615 Colorado Iron Works v. Eiekenberg (Idaho) .. .2.5, 60, 62, 81, 83, 87, 384, 743 Colorado I. W. v. Taylor (Colo.) 371, 394, 399, 419, 421, 533, 630 Comptoir D'Escomptc v. Dresbach (Cal.) 576 Conefield v. Polk (Ind.) 82 Congdon, In re (Hawn.) 21S Conlee v. Clark (Ind.) 193 Continental B. & L. Assoc, v. Hutton (Cal.). .25, 33, 367, 524, 579, 580, 744, 802 Cook V. Columbia O. A. & E. Co. (Cal.) 171, 269 Cook V. Gallatin R. Co. (Mont.) 26, 49, 319, 585, 683, 730, 799 Cooper Mfg. Co. v. Delahunt (Oreg.) . .160, 364, 365, 368, 456, 475, 529, 608, 664, 787, 788 Corbett v. Chambers (Cal.) 5, 7, 16, 17, 25, 51, 293, 297, 304, 307, 308, 310, 318, 321, 322, 323, 324, 325, 326, 344, 351, 363, 375, 380, 467, 480, 503, 505, 524, 605, 614, 628, 630, 687, 717 Corcoran v. Desmond (Cal.) 791 Cornell v. Conine-Eaton L. Co. (Colo.).. 4, 16, 594, 604, 611, 731, 781 Cornell v. Dunbar Lumber Co. (Colo.) 451, 456 Cors V. Ballard I. W. (Wash.) 53 Coss V. MacDonough (Cal.).. 58, 73, 229, 273, 279, 364, 628, 638, 685, 703, 713, 795, 796, SOI Costillo V. McConnico (U. S.) 34 Coulter, In re (Fed.) 293, 458, 596 Covell V. Washburn (Cal.)... 70, 478, 488, 489, 493, 588, 664, 665, 754, 769, 770, 773 Cowen V. Griffith (Cal.) 396 Cowie V. Ahrenstedt (Wash.) 294, 351, 357, 371, 659, 675, 687, 775 Cowles V. United States F. & G. Co. (Wash.) . . .168, 193, 551, 558, 559 Cox V. McLaughlin (Cal.).. 172, 182, 185, 188, 270, 291, 587, 620, 621, 692, 705, 720, 726, 738, 753, 755 Cox V. Western Pac. E. Co. (Cal.) 67, 139, 172, 291, 293, 301, 357, 403, 404, 587, 615, 621, 649, 650, 652 Craig V. Geddis (Wash.) 188, 275 Crane Co. v. ^tna Indemnity Co. (Wash.) 153, 220, 370, 571 Crane Co. v. Pacific H. & P. Co. (Wash.) 557 Creer v. Cache Valley C. Co. (Idaho) 292, 406 Cross V. Tscharnig (Oreg.) 331, 418, 433, 534, 631 Crowell V. Gilmore (Cal.). . .421, 422, 448, 451, 452, 456, 457, 458, 463, 538 Crowley v. United States F. & G. Co. (Wash.). .163, 194. 262, 551, 557, 559, 560, 561, 569, 689, 812, 814 C. Scheerer Co. (Inc.) v. Deming (Cal.) 289, 290 Cullins V. Flagstaff S. M. Co. (Utah) 124 Culmer v. Caine (Utah) 75, 189, 247, 3.03, 310, 317, 361, 365, 368, 371, 409, 452, 475, 593, 600, 626, 744, 750, 793 Culmer v. Clift (Utah) 21, 347, 356, 364, 376, 539, 661, 712, 754 I TABLE OF CASES. IXV Pages Cummings v. Ross (Cal.) 163, 588, 701, 732 Curnow v. Happy Valley B. G. & H. Co. (Cal.) ... .18, 19, 348, 540, 585, 602, G48, 657, 660, 704, 728, 732 Curtis V. Richards (Cal.) 658, 659 Curtis V. Sestanovich (Oreg.) . . . 136, 310, 314, 325, 326, 331, 376, 384, 634, 636, 826 Cutter V. Striegel (Wash.) 416, 434, 631 Cutting Fruit P. Co. v. Canty (Cal.) 753 D Daley v. Russ (Cal.) 617 Dalles L. & M. Co. v. Wasco W. Mfg. Co. (Oreg.) . .22, 53, 300, 345, 406, 580, 637 Darlington-Miller L. Co. v. Lobsitz (Okl.) 73, 83, 430, 796 Davanay v. Eggenhoflf (Cal.) 658 Davidson v. Jennings (Colo.).. 13, 16, 48, 160, 420, 479, 493, 699. 770, 786 Davidson v. Laughlin (Cal.) 104 Davies-Henderson L. Co. v. Gottschalk (Cal.)... 9, 18, 45, 47, 52, 61, 71, 78, 97, 2.55, 310, 344. 391, 426, 427, 449, 450. 452, 453, 454, 455, 493, 499, 500, 508, 513, 515, 588, 606, 608, 628, 630, 713, 759, 761, 786, 787 Davis V. Alvord (U. S.)..8, 23, 114, 162, 300, 376, 399, 451, 457, 585, 649, 682, 685, 687, 751 Davis V. Big Horn L. Co. (Wyo.) 321, 322, 411, 622, 651 Davis V. Bilsland (U. S.) 20, 451, 452, 539, 649 Davis V. Johnson (Colo.) 726 Davis V. Livingston (Cal.).. 22, 261, 311, 313, 332, 361, 505, 507, 508, 509, 516, 523, 524, 525, 526, 598, 633, 717 Davis V. MacDonough (Cal.) . . . .16, 17, 58, 59, 73, 95, 118, 120, 136, 137, 251, 255, 296, 374, 377, 383, 384, 392 Davis V. Mouat L. Co. (Colo.) 35, 246, 586, 600, 605, 608 Davis V. Treacy (Cal.) 613 Deacon v. Blodget (Cal.) HI Dearborn Foundry Co. v. Augustine (Wash.) 53, 159, 324, 732 De Boom v. Priestly (Cal.) 616 De Camp L. Co. v. Tolhurst (Cal.) 212, 491, 672, 729, 730, 769 Decker v. Myles (Colo.) 600, 605 De Haven v. McAuley (Cal.) 130, 733, 803 DeMattos v. Jordan (Wash.) . . . .68, 111, 165, 183, 189, 191, 258, 291, 5.55, 565, 697 Denison v. Burrell (Cal.) 203, 205, 259, 476, 481, 483, 514 Dennis v. Burritt (Cal.) 447 Denny v. Spurr (Wash.) 551, 561 Denver v. Hindry (Colo.) 66 Denver H. Co. v. Croke (Colo.) 72. 505 Denver L. & S. Co. v. Rosenfcld Const. Co. (Colo.) 186 Denver S. P. & P. Co. v. Riley (Colo.) 183 Mecli. Liens — E Ixvi TABLE or CASES. Pages De Prosse v. Eoyal Eagle Dist. Co. (Cal.) 109, 159, 584, 590 Dexter v. Olsen (Wash.) 368, 369 Dexter, H. & Co. v. Sparkman (Wash.) 579 Dexter, H. & Co. v. Wiley (Wash.) 579 Devoe v. Superior Court (Cal.) 47 Dibble V. De Mattos (Wash.) 563 Dickenson v. Bolyer (Cal.) 139, 338, 462 Dickson v. Corbett (Nev.) 420, 580, 585, 660, 765 Dietz v. Mission Transfer Co. (Cal.) 148 Dillon V. Hart (Oreg.) 311, 326, 327 Diugley v. Greene (Cal.) 75, 190, 245, 409, 410, 495, 514, 683 Ditto V. Jackson (Colo.) 246, 409, 624 Doggett V. Bellows (Cal.) 622 Donahue r. Cromartie (Cal.) 64, 81, 94, 121, 143, 403, 702 Donegan v. Houston (Cal.) 188, 615, 618, 636 Donnelly v. Adams (Cal.).. 164, 227, 228, 229, 232, 233, 234, 240, 683, 692 Donohoe v. Trinity Consol. G. & S. M. Co. (Cal.) 40, 418, 439, 534, 535, 610, 641, 678, 679, 746, 796 Dore V. Sellers (Cal.).. 7, 9, 78, 164, 205, 210, 410, 411, 412, 413, 473, 484, 574 Doremus v. Root (Wash.) 561 Douthitt V. MacCulsky (Wash.) . .320, 527, 561, 586, 605, 610, 722, 728, 751, 752, 786 Downing v. Graves (Cal.)... 72, 118, 182, 193, 246, 247, 259, 260, 265 Drumheller v. American S. Co. (Wash.) 73, 177, 185, 187, 258, 557, 558, 731, 807, 810, 812, 814, 818 Duignan v. Montana Club (Mont.) 8, 73, 83, 87, 469, 608, 639 Duncan v. Hawn (Cal.) 18, 20, 539 Dunlop V. Kennedy (Cal.).. 15, 19, 53, 98, 159, 211, 212, 216, 223, 228, 229, 237, 239, 447, 472, 481, 519, 585 Durrell v. Dooner (Cal.) 128, 130, 147, 636, 801 Dusy V. Prudom (Cal.) 750, 764, 766 Dwyer v. Salt Lake City Mfg. Co. (Utah) 7, 573, 797 Dyer v. Middle Kittitas Irr. Dist. (Wash.) 164, 177, 185, 291, 615, 684, 731 E Eagle Gold Min. Co. v. Bryarly (Colo.) 20, 49, 538, .541, 575, 599, 600, 647, 727, 750, 771 Eakins v. Frank (Mont.) .• 561, 562 Eaman v. Bashf ord (Ariz.) 417, 532 Earnshaw v. United States (U. S.) 175 Easterbrook v. Farquharson (Cal.) 491, 753 Eastham v. Western Const. Co. (Wash.) : . .177, 191, 684 Easton v. O'Eeilly (Cal.) 595. 603 Eaton V. Malatesta (Cal.) 93, 121, 344, 365, 423, 716, 721 Eaton V. Eocca (Cal.).. 89, 415, 493, 494, 532, 536, 632, 640, 672, 721, 760, 763 TABLE OF CASES. Ixvii I'ages Eccles L. Co. v. Martin (Utah). .6, 9, 13, 16, 17, 21, 24, 160, 300, 317, 358, 360, 417, 462, 463, 467, 530 Eccleston v. Hetting (Mont.) 62, 73, 74, 91 Eclipse S. M. Co. v. Nichols (Utah) 376 Ehlers v. Wannack (Cal.) 110, 619, 709, 722. 739 Ehrman v, Astoria & P. E. Co. (Oreg.) 591, 786 Eisenbeis v. Wakeman (Wash.) 9, 84, 650, 758, 762 Ekstrand v. Barth (Wash.) 69, 282, 476, 61^, 683 Elder v. Spinks (Cal.) 641, 657 Eldridge v. Fuhr (Mo.) ^•^6 Ellett V. Tyler (111.) 398 Elliot V. Koyal Ex. Assur. Co. (Eng.) 188 Elliott V. Ivers (Nev.) 609, 725, 730, 751 Ellis V. Brisachcr (Utah) 423, 425, 430, 450 Ellis V. Eademacher (Cal.) 671 Ellison V. Jackson W. Co. (Cal.) 4, 15, 42, 47, 142, 165, 403 Ellsworth V. Layton (Wash.) 378, 703 El Reno E. L. & T. Co. v. Jennisou (Okl.) 8, 347, 364, 369, 377, 593, 596, 650, 668 Elwell V. Morrow (Utah) 17, 25, 292, 371, 572, 583, 603, 730 Empire L. & C. Co. v. Engley (Colo.) 23, 430, 456, 538, 601 Enterprise Hotel Co. v. Book (Oreg.) 258, 550, 557, 558, 565, 818 Epley V. Scherer (Colo.) 624 Epplinger v. Kendrick (Cal.) -'^f' Erickson v. Hochbrune (Wash.) 699 Ernst V. Cummings (Cal.) 172, 268, 470, 560, 737 Ernst V. Fox (Wash.) ''19 Estey V. Hallack & Howard L. Co. (Colo.) 4, 493, 608, 751 Etchas V. Orena (Cal.) 658 Evans v. Graden (Mo.) •^*^*^ Evans v. Judson (Cal.) 151, 434, 436, 444, 739. 776, 782 Evans v. Young (Colo.) 423, 424 Everett v. Hart (Colo.) 672, 701 Exposition Amusement Co. v. Empire State Surety Co. (Wash.) ... 554 F Fagan v. Boyle I. M. Co. (Tex.) 85 Fairhaven L. Co. v. Jordan (Wash.) . . . .19, 21, 260, 308, 311, 314, 333, 334, 336, 339, 363, 583, 604, 687, 774, 799 Falconio v. Larsen (Oreg.) ' -^^ Fallon V. Worthington (Colo.) 467 Farmers' & M. Bank v. Downey (Cal.) l->9 Farmers' & M. Bank v. Kinsley (Mich.) 554, 594 Farmers' L. & T. Co. v. Candler (Ga.) i:^9 Farnham v. California S. D. & T. Co. (Cal.) . . . .104, 379, 380, 449, 753, 756, 770 Far West O. Co. v. Witmer Bros. Co. (Cal.) 173, 178 Fein v. Davis (Wyo.) 152, 375, 586, 628, 759 Ixviii TABLE OF CASES, Pages Ferguson v. Miller (Cal.) 457 Ferguson v. Stephenson-Brown L. Co. (Okl.) 24, 84, 303, 306, 351, 384, 604, 629, 796, 824 Fernandez v. Burleson (Cal.) 93, 313, 348, 349, 350, 353, 368, 634 Fidelity & D. Co. v. Robertson (Ala.) 564 Fidelity Mut. L. Assoc, v. Dewej' (Minn.) 566 Fields V. Daisy G. M. Co. (Utah) 170, 447, 451, 456, 597, 800 Finane v. Las Vegas H. & I. Co. (N. M.) 4, 16, 22, 25, 362, 363, 585, 649, 688, 764 Finch V. Turner (Colo.) 757, 778, 780, 781 First Municipality v. Bell (La.) 89 First Nat. Bank v. Ferris Irr. Dist. (Cal.) . . .90, 91, 140, 169, 172, 254, 265, 268, 297, 507, 511, 516, 518, 523, 543, 589, 593, 596, 666, 760, 761, 794 Fischer v. Hanna (Colo.) 123, 731 Fish V. McCarthy (Cal.) 157, 159 Fisher v. Pearson (Cal.) 620 Fisher v. Tomlinson (Oreg.) 80 Fitch V. Applegate (Wash.) .. .36, 48, 303, 447, 457, 549, 639, 650, 771, 772, 836 Fitch V. Howitt (Oreg.) 84, 87, 384, 529, 579, 580, 682, 774 Fitch V. Stallings (Colo.) 538 Fitzhugh V. Mason (Cal.) 109, 110, 613, 740, 741 Flagstaff M. Co. v. Cullins (U. S.) 23, 119, 120, 124 Flandreau v. Downey (Cal.) 456, 594, 614, 698 Fleming v. Prudential Ins. Co. (Colo.) 22, 130, 604, 609 Flick V. Hahn's Peak & E. R. C. & P. M. Co. (Colo.) .192, 275, 676, 807 Flinn v. Mowry (Cal.) 109, 130, 162, 168, 169, 258, 270, 290, 479, 492, 683, 726, 733 Florence O. & E. Co. v. Eeeves (Colo.) 587 Florman v. School Dist. (Colo.) 4, 16, 66, 1-54. 521, 522 Flynn v. Dougherty (Cal.) 64, 85 Folsoni V. Cragen (Colo.) 429, 457 Forbes v. Willamette Falls Electric Co. (Oreg.). 140, 702, 753, 754, 774 Ford V. Springer L. Assoc. (X. M.) 4, 16, 25, 26, 142, 189, 196, 199, 303, 306, 307, 312, 324, 332, 340, 348, 350, 397, 434, 585, 609, 635, 645. 662, 667, 762, 765, 796, 801 Forest Grove D. & L. Co. v. MePherson (Oreg.) 376, 384 Foster v. Gaston (Ind.) 566 Fox V. Xachtsheim (Wash.) .' 586, 786 Frank v. Chosen Freeholders (N. J.) 508 Frank v. Jenkins (Wash.) 601, 751 Franklin v. Schultz (Mont.) 199, 274, 276, 284 Fratt V. Whittier (Cal.) ' 149 Frazer v. Barlow (Cal.) 654 Frazier v. Murphy (Cal.) .• 698 Freeman v. Carson (Minn.) ; 398 TABLE OF CASES. Ixix Pages French v. Powell (Cal.) 91, 219, 264, 370, 377, 378, 461, 480, 506, 509, 521, 522, 523, 545 Fresno C. & I. Co. v. Waruer (Cal.) 698 Fresno L. & S. Bank v. Husted (Cal.) 152, 439 Fresno M. Co. v. Fresno C. & I. Co. (Cal.) 178 Friend v. Ealston (Wash.) . .470, 551, 557, 560, 561, 812, 813, 814, 818 Frisch v. Caler (Cal.) 595 Front Street C. E. Co. v. Johnson (Wash.) 144, 152, 319, 416 Front Street M. & O. E. Co. v. Butler (Cal.) Ill Frowenfeld v. Hangings (Cal.) 16 Fulkerson v. Kilgore (Okl.) 527, 593 Fuller (W. P.) & Co. v. Eyan. See W. P. Fuller & Co. v. Eyan. Fnquay v. Stickney (Cal.) 40, 442, 444 G Gaines v. Childers (Oreg.) 447, 609, 610, 782 Gamache v. South School Dist. (Cal.) 67, 269, 656, 741, 751 Gamble v. Voll (Cal.) 45, 263, 460, 610, 701, 754, 765, 782 Ganahl v. Weir (Cal.) 208, 258, 519, 546, 566, 572, 623 Gardner v. Tatum (Cal.) 109 Garland v. Bear L. & E. W. & Irr. Co. (Utah) 9, 44, 136, 142, 185, 293, 295, 314, 416, 451, 456, 457, 458, 577, 584 Garland v. McMartin (Utah) 191, 588 Garneau v. Port Blakeley M. Co. (Wash.) 44, 375, 687, 702 Garner v. Van Patten (Utah) 360, 462, 802 Gaskill V. Moore (Cal.) 448, 450 Gaskill V. Trainer (Cal.) : 424. 425 Gates V. Brown (Wash.) 26, 294, 314, 333, 338, 343, 362, 371 Gates V. Fredericks (Ariz.) 420, 422, 423, 532, 533 Gato V. Warrington (Fla.) 559 Gaty V. Casey (111.) 84, 398 Gaylord v. Laughhridge (Tex.) 89 General F. & E. Co. v. Schwartz Bros. Com. Co. (Mo.) 193 Genest v. Las Vegas Masonic Bldg. Assoc. (N. M.) . . .9, 13, 15, 16, 19, 26, 48, 84, 274, 362. 386, 771, 774 Georges v. Kessler (Cal.) .. .347, 638, 639, 654, 655, 688, 714, 719, 796 Gerino, Ex parte (Cal.) 107 German Nat. Bank v. Elwood (Colo.) 605 Germania B. & L. Assoc, v. Wagner (Cal.). .33, 284, 328, 343, 450, 453, 454, 548, 577, 664, 667, 826 Getty V. Ames (Oreg.) 309, 316, 326, 327, 580 Giant Powder Co. v. Oregon Pac. E. Co. (Fed.) 90, 139, 140, 144, 403, 406, 407 Giant Powder Co. v. San Diego F. Co. (Cal.). .16, 52, 53, 90, 124, 130, 142, 143, 229, 230, 242, 250, 251, 256, 266, 267, 280, 281, 283, 384, 499, 605, 607, 609, 637. 649, 650, 686, 724, 760, 762 Gibbs V. Tally (Cal.).. 32, 37, 38, 47, 218, 219, 245, 255, 478, 495, 531, 538, 552, 589, 680 IXX TABLE OF CASES. Pages Gibson v. Wheeler (Cal.) • • ■ • 19, 164, 411, 493, 510, 514, 527, 624, 629, 721, 722, 741, 760 GUchrist V. Helena H. S. & S. E. Co. (Fed.) 48, 119, 585, 750 Gilliam v. Black (Mont.) 588, 604, 608, 757, 760 Gilliam V. Brown (Cal.) 162, 175, 258, 284, 696, 704, 725, 731 Glenn County v. Jones (Cal.) 564, 566, 567 Gnekow v. Confer (Cal.) 229, 254, 493, 494. 757, 760 Goddard v. Fulton (Cal.) 658 Godeffroy v. Caldwell (Cal.) 89, 429, 559 Golden Gate L. Co. v. Sahrbaclier (CaL) . . .270, 274, 276, 291, 335, 342, 346, 481, 587, 694, 757, 768 Goodale v. Coffee (Oreg.) 600, 609 Goodrich L. Co. v. Davie (Mont.) 347, 584, 688, 758 Gordon v. Canal Co. (Fed.) 738 Gordon v. Deal (Oreg.) 8, 16, 25, 303, 306, 318, 319, 325 Gordon v. South Fork C. Co. (Fed.) 41, 311, 348, 360 Gordon H. Co. v. San Francisco & S. E. E. Co. (Cal.) 89, 264, 318, 332, 342, 343, 384, 580, 734, 737 Gorton v. Ferdinando (Cal.) 603 Goss V. Helbing (Cal.) 94, 121, 143, 456, 532. 672, 798 Goss V. Strelitz (Cal.) 198, 298, 312, 335, 344, 353, 365. 368, 485, 595. 634 Gottstein v. Seattle L. & C. Co. (Wash.) 563, 699 Gould V. Barnard (Mont.) 119, 479 Gould V. Wise (Nev.) 51. 122, 399. 434, 4.35, 439 Grain v. Aldrich (Cal.) 485 Grand Opera House Co. v. McGuire (Mout.) 450, 460, 764, 782 Grangers' Business Assoc, v. Clark (Cal.) 708 Grant v. Sheerin (Cal.) 708 Graves v. Merrill (Minn.) 566 Graves v. Mono Lake H. M. Co. (Cal.) 159 Gray v. Jones (Oreg.) 7, 264, 573. 574 Gray v. La Societe Fran^-aise de B. M. (Cal.). .169, 182. 191, 194, 195, 264, 807 Gray v. School Dist. (Neb.) 566 Gray v. Wells (Cal.) 192, 269, 539, 602, 743, 796 Gray's Harbor C. Co. v. Wotton (Wash.) 787 Great Western Mfg. Co. v. Hunter (Neb.) 84 Greeley S. L. & P. E. Co. v. Harris (Colo.) 4, 16, 17, 24, 26, 505 Green v. Berge (Cal.) • 786 Green v. Chandler (Cal.) 644, 645, 673, 741 Green v. Clifford (Cal.) . . . .287, 465, 550, 606, 607, 608, 649, 722, 727, 793 Green v. Jackson W. Co. (Cal.) . : .119, 594, 599 Green v. Palmer (Cal.) 614, 617 Greene v. Finnell (Wash.) . 310, 333, 369, 603, 687, 688, 725 Gregory v. Nelson (Cal.) - 671 Greig V. Eiordan (Cal.) 164, 233, 236, 238, 239, 246, 260 TABLE OF CASES. Ixxi Pages Gribble V. Columbus B. Co. (Cal.) 658 Griffin v. Hurley (Ariz.) 419, o33, 843 Griffin v. Seymour (Colo.) 6, 42, 124, 160, 169, 419, 468, 620 Griffith V. Grogan (Cal.) o"6 Griffith V. Happersberger (Cal.)... 69, 78, 154, 190, 200, 269, 274, 275, 607, 619, 661, 665, 667, 697, 741, 744 Griffith V. Maxwell (Wash.) 48, 338, 349, 351, 530, 624, 629, 632, 639, 647, 713, 733, 771, 772, 786 Griffith V. New York Life Ins. Co. (Cal.) 573 Griffith Co. (J. M.). V. City of Los Angeles. Sec J. M. Griffith Co. V. City of Los Angeles. Grissler, In re (Fed.) 546, 598, 725 Griswold v. Pieratt (Cal.) 664 Gritman v. United States F. & G. Co. (Wash.) 188, 555, 684, 750 Groth V. Stahl (Colo.) 409, 495, 671 Gunst V. Las Vegas M. B. Assac. (N. M.) 600 Gutshall V. Kornaley (Colo.) 34, 362, 431, 655 Guy V. Carriere (Cal.) 418, 423, 459 Guy V. Du Uprey (Cal.) ' 157 H Haekfeld v. Hilo E. Co. (Hawn.) . . . .4, 13, 18, 74, 83, 84, 89, 98, 144, 160, 178, 409, 559, 572, 599, 674 Hadley Co. v. Cummings (Ariz.) 419, 422 Hagman v. Williams (Cal.) 26, 118, 305, 658, 6.-)9, 694, 724, 773 Hale Bros. v. Milliken (Cal.) 591, 672, 676, 685, 695 Hall V. Glass (Cal.) 549 Hall V. Law Guarantee & T. 8oe. (Wash.) 149 Halleck v. Bresnahen (Wyo.) 475, 568, 590 Hamilton v. Delhi M. Co. (Cal.).. 7, 82, 83, 87, 96, 153, 359, 399, 409. 434, 439. 456, 462, 603, 704, 738, 745 Hamilton v. Woodworth (Mont.) 564 Hampton v. Christensen (Cal.).. 27, 32, 33, 47, 97, 211, 21.5, 216, 219, 244, 248, 249, 472, 473, 474, 480, 481, 490, 547, 667, 791, 803, 809 Hampton v. Truckee C. Co. (Fed.) 18, 430, 599 Hand Mfg. Co. v. Marks (Oreg.) 197. 561, 562, 564, 565, 567, 574, 582, 608, 725, 787, 818 Hanna v. Barker (Colo.) 658 Hanna v. Colorado Sav. Bank (Colo.) 4, 16, 23, 315, 538, 614 Hanna v. Mills (N. Y.) 617 Hannan v. McNickle (Cal.) 175 Hanson v. Cordano (Cal.) 197, 270 Harlan v. Rand (Pa.) 86, 247 Harlan v. Stufflebeom (Cal.) lis, 273, 274, 275, 276, 422, 434, 587, 630, 704, 740, 777, 795 Hannon v. Ashmead (Cal.) 284, 306, 311, 312, 324, 367, 4.56, 595, 622, 642, 681 Ixxii TABLE OF CASES. Harmon v. San Francisco & S. E. E. Co. (Cal.). . .89, 91, 132, 264, 318, 327, 343, 367, 376, 383, 510, 579, 727, 795, 802 Harness v. McKee-Brown L. Co. (Old.) 77, 87, 672, 731 Harnish v. Bramer (Cal.) 708 Harrington v. Johnson (Wash.) 605, 779 Harrington v. Miller (Wash.) .. .321, 324, 423, 586, 605, 610, 728, 751 Harris v. Faris-Kesl Const. Co. (Idaho) 278, 291, 695 Harris v. Harris (Colo.) 306, 315, 316, 338, 492, 711, 726 Harrisburg L. Co. v. Washburn (Oreg.) 141, 148, 196, 275, 276, 344, 345, 351, 355, 367, 384, 421, 453, 458, 534, 579, 580, 753. 774 Harrison v. MeCormick (Cal.) 693 Hart V. Mullen (Colo.) 377, 384, 609, 757 Haskell v. McHenry (Cal.) 109 Hatcher r. United States L. Co. (Colo.) 423 Havens v. Donahue (Cal.) 112 Haxtun S. H. Co. v. Gordon (N. D.) 442, 458 Head v. Pordyce (Cal.) 142 Heald v. Hodder (Wash.) 300, 304, 317, 331, 339. 572 Hcffernan v. United States F. & G. Co. (Wash.) 561 Heinlen v. Erlanger (Cal.) 613 Helena L. Co. v. Montana Cent. E. Co. (Mont.) 644 Helena S. H. & S. Co. v. Wells (Mont.) 48, 170, 384, 399, 704, 740, 771 Helm V. Chapman (Cal.) 94, 96, 125, 127, 139, 140, 146, 408 Helm V. Gilroy (Oreg.) 151 Henderson L. Co. v. Gottschalk (Cal.) 634 Hendrie & B. Mfg. Co. v. Holy Cross G. M. & M. Co. (Colo.) 419 Hendrie & B. Mfg. Co. v. Parry (Colo.) 157, 409 Hendy v. Dinkerhoff (Cal.) 143, 400 Hendy M. W. v. Pacific Cable C. Co. (Oreg.) 355 Henley v. Wadsworth (Cal.). 22, 245, 246, 263, 409, 484, 495, 514, 696 Hennessey v. Fleming Bros. (Colo.) 192 Henry v. .^tna I. Co. (Wash.) 558 Henry v. Flynn (Wash.) 558, 561 Henry v. Hand (Oreg.) 167, 172, 177, 199, 451, 559, 561, 569, 818 Herrick v. Belknap (Vt.) 188 Heston v. Martin (Cal.) 313, 342, 505 Hicks V. Murray (Cal.) 36, 40, 311, 322, 342, 361, 505, 615, 628, 629, 671 Higgins V. California P. & A. Co. (Cal.) : 676 Higgins V. Carlotta G. M. Co. (Cal.) 42, 116, 124, 419, 433, 436 High V. Dunn (Hawn.) 188 Hildebrandt v. Savage (Wash.) . 650, 758, 759 Hill V. Bowers (Kan.) ". 738 Hill V. Cassidy (Mont.) 776, 791 Hill V. Clark (Cal.) 770 Hill V. Den (Cal.) .• 671 Hill V. Grigsby (Cal.) 591 TABLE OF CASES. Ixxiii Pages Hill V. Gwin (Cal.) 592 Hill V. La Crosse & M. E. Co. (Wis.) 404 Hills V. Ohlig (Cal.) 311, 345 Himmelmann v. Spanagel (Cal.) 708 Hinckley v. Field's B. & C. Co. (Cal.) ... .51, 55, 58, 63, 64, 66, 80, 81, 85, 105, 143, 165, 380, 417, 421, 467, 629 Hines v. Miller (Cal.). .127, 161, 417, 435, 436, 437, 438, 439, 441, 444, 527, 530, 629, 631, 633, 675, 680, 753, 754, 762, 763 Hinkel v. Donohue (Cal.) 790 Hoagland v. Lowe (Neb.) 448 Hobbs V. Spiegelberg (N. M.). . .8, 22, 73, 307, 312, 314, 410, 530, 546, 585, 586 Hobkirk v. Portland N. B. Club (Oreg.) 158, 376, 420 Hocker v. Kelley (Cal.) 731, 751 HoflPman-Marks Co. v. Spires (Cal.) 289, 290 Hogan V. Bigler (Cal.) 318, 326 Hogan V. Globe Mut. B. & L. Assoc. (Cal.) 3, 196, 212, 268, 487 Hogan V. Shields (Mont.) 162 Holden v. Hardy (U. S.) 35 Holland v. Wilson (Cal.) 164, 233, 252, 588, 663, 801 Holmes v. Mello (Hawn.) 617 Holmes v. Eichet (Cal.) 83, 182, 188, 195, 196, 199, 606, 632, 633, 667, 737, 750 Holt V. Bergevin (Idaho) 599 Holter (A. M.) H. Co. v. Ontario M. Co. See A. M. Holter H. Co. V. Ontario M. Co. Honie S. & L. Assoc, v. Burton (Wash.) 452, 459, 549 Houeyman v. Thomas (Oreg.) 151, 153 Hooper v. Fletcher (Cal.) 492, 733, 753, 755, 777, 807 Hooper v. Flood (Cal.) 23, 305, 322, 330, 333, 345, 346, 605, 606, 632, 648, 654, 721 Hooper v. Lincoln (Hawn.) 605 Hooven v. Featherstone (Nev.) 199 Hopkins v. Jamieson-Dixon M. Co. (Wash.). . .41, 44, 62, 117, 299, 320, 326, 333, 339, 345, 347, 361, 362, 759 Horn V. Jones (Cal.) 47, 142, 403, 601, 611, 698 Horn V. United States Min. Co. (Oreg.) 7, 293, 378, 800 Hotaling v. Cronise (Cal.) 348, 450 Houghton V. Blake (Cal.) 83, 632, 633, 701 Houghton V. Hotel Co. (N. M.) 4, 585 Howe V. Schmidt (Cal.) 75, 86, 99, 228, 260, 743, 798 Hoyt, In re (Fed.) 463 H. Eaphael Co. v. Grote (Cal.) 290, 770 Hubbard v. Lee (Cal.) 499, 500, 515, 561, 672 Huber v. St. Joseph's Hospital (Idaho) . .177, 181, 191, 534, 683, 685, 773 Hudson V. McCartney (Wis.) 268 Huetter v. Redhead (Wash.) 291, 365, 673, 754 Ixxiv TABLE OF CASES. Pages Hiiggins V. Sutherland (Wash.) 220, 521 Hughos V. Bravinder (Wash.) 183, 184, 195 Hughes V. Gibson (Colo.) 560 Hughes V. Lansing (Oreg.)...7, 198, 294, 304, 470, 491, 573, 580, 661 Hughes Bros. v. Hoover (Cal.) 15, 17, 32, 33, 262, 293, 371, 387, 388, 389, 462, 477, 512, 593, 594, 596, 667 Humboldt L. M. Co. v. Crisp (Cal.) 3, 7, 9, 12, 13, 14, 15, 97, L51, 398, 484, 493, 588, 759 Hume V. Robinson (Colo.) 608, 758, 760 Humphrey v. Hunt (Okl.) 786 Humphreys v. McCall (Cal.) 658 Hunt V. Darling (R. I.) 17 Hunt V. Maldonado (Cal.) 157 Hunter v. Cordon (Oreg.) 434, 529, 631 Hunter v. Savage Consol. M. Co. (Nev.) 41 Hunter v. Savage Consol. S. M. Co. (Xev.) 122 Hunter v. Truekee Lodge (Nev.) 23, 306, 311, 369, 374, 377, 410, 495, 514, 573, 586, 615, 624, 730 Huttig Bros. Mfg. Co. v. Denny Hotel Co. (Wash.) . .2, 53, 88, 199, 289, 362, 378, 452, 453, 457, 575 I Idaho & O. L. Imp. Co. v. Bradbury (U. S.) 585, 732 Idaho Comstock M. & M. Co. v. Lundstrum (Idaho) 128 Idaho G. M. Co. v. Winchell (Idaho) 40, 160, 416, 535, 577, 750 Idaho M. & M. Co. v. Davis (Fed.). 23, 128, 359, 360, 392, 399, 464. 796 Ihrig V. Scott (Wash.) 153 Iliff V. Forssell (Wash.) 421^ 434 Inman v. Henderson (Oreg.) 62, 74, 81, 376, 451, 453 Installment B. & L. Co. v. Wentworth (Wash.) 327, 586, 732 International B. & L. Assoc, v. Fortassain (Tex.) 89 Inverarity v. Stowell (Oreg.) 782 Irby v. Phillips (Wash.) 719, 726, 802 Ivall V. Willis (Wash.) 48, 771 J James River L. Co. v. Danner (N. D.) 448 Jarvis v. State Bank (Colo.) 457, 481, 574 Jenne v. Burger (Cal.) 576, 677, 746 Jennings v. McCormick (Wash.) 187 Jensen v. Brown (Colo.) 246, 516, 624 Jerome v. Stebbins (Cal.) 614, 617 Jewell V. McKay (Cal.) 50, 163, 292, 304, 305, 308, 309, 310, 313, 327, 334, 335, 336, 337, 341, 345, 367, 412, 434, 505, 506, 526, 631, 635, 773 Jewett v. Darlington (Wash. Tcr.) 447, 687 J. M. Griffith Co. v. City of Los Angeles (Cal.) 169, 'l95 John A. Roebliug's Sons Co. v. Humboldt E. L. & P. Co. (Cal.) 797 TABLE OP CASES. IxXV Pages Johnson v. Boudry (Mass.) '-53 Johnson v. California L. Co. (Cal.) I'iS Johnson v. Dewey (Cal.) 58, 422, 423, 494 Johnson v. Goodyear M. Co. (Cal.) 34, 35 Johnson v. La Grave (Cal.) 246, 260, 264, 285, 387, 388, 465, 495, 542, 546 Johnson v. McClure (N. M.) 110, 120 Johnson v. Puritan M. Co. (Mont.) 450, 458, 751 Johnston v. Bennett (Colo.) 4, 16, 19, 430, 593, 604, 610 Tohnston v. Harrington (Wash.) . . . 16, 86, 294, 304, 311, 314, 363, 371, 705 Jones V. Childs (Nev.) 564 Jones V. Frost (Cal.) 595 Jones V. Great Southern F. H. Co. (Fed.) 36, 216 Jones V. Kruse (Cal.) ...42, 91, 230, 305, 326, 364, 387, 388, 713, 738 Jones V. Shuey (Cal.) 268, 422, 532, 714, 720 Joost V. Sullivan (Cal.) 27, 209, 226, 228, 229, 230, 234, 235, 236, 238, 239, 240, 256, 272, 280, 282, 376, 383, 386, 686, 706, 707, 797 Joralmon v. McPhee (Colo.) 16, 19, 35, 37, 287, 312, 447, 448, 457, 459, 491, 585, 701, 751, 766, 778, 800, 802 Jordan v. Myres (Cal.) 138, 143, 149, 153, 400, 401, 409, 441 Jorgensen Co. v. Sheldon (Alas.). .4, 16, 24, 25, 28, 303, 306, 383, 593, 599, 604, 614, 636, 639 Joshua Hendy Machine Works v. Pacific Cable Const. Co. (Oreg.) 713 Judah v. Zimmerman (Ind.) 556 Judson V. Malloy (Cal.) 289 Jurgensen v. Diller (Cal.) 40, 94, 126, 436, 437, 439, 440, 443, 534, 535, 575, 679 Justice V. Elwert (Oreg.) 118, 190, 269, 270, 476, 797 K Kair, Ex parte (Nev.) 36 Kalkmann v. Baylis (Cal.) 617 Kansas City M. & B. R. Co. v. Eobertson (Ala.) 485 Keene G. S. Bank v. Lawrence (Wash.) 452 Keener v. Eagle Lake L. & L Co. (Cal.) 17, 3-5, 297, 384, 601, 635, 772 Kelley v. Plover (Cal.) 3.35, 346, 661, 725, 742, 794 Kellogg V. Howes (Cal.) 35, 36, 37, 38, 58, 76, 231, 244, 245, 251, 253, 254, 255, 483, 493, 495, 496, 497, 498, 499, 505, 507, 514, 515, 624, 761 Kellogg V. Littell & Smythe Mfg. Co. (Wash.) . . .26, 35, 144, 152, 355, 357, 416, 754, 759, 760 Kelly V. Lemberger (Cal.) 323, 324, 325, 688, 717, 794 Kendall v. McFarland (Oreg.) 22, 451, 453, 620, 750, 778 Kennedy & Shaw L. Co. v. Duscnbery (Cal.)... 68, 492, 493, 547, 548, 729, 748, 758, 760, 769 Ixxvi TABLE OP CASES. Pages Kennedy & Shaw L. Co. v. Priet (Cal.) 68, 546, 547, 548, 729 Kennedy L. & O. Co. v. New Albany W. W. (Ind.) 143 Kennedy-Shaw L. Co. v. Priet (Cal.)... 53, 71, 492, 493, 748, 756, 758, 798 Kent V. Richardson (Idaho) 796 Kent L. Co. v. Ward (Wash.) 543, 562 Kerby v. Daly (N. Y.) 89 Kerckhoff-Cuzner M. & L. Co. v. Curaniings (Cal.) . . . .203, 204, 205, 496, 510, 514, 516, 662 Kerchkoff-Cuzner M. &. L. Co. v. Olmstead (Cal.) 41, 44, 62, 81, 285, 286, 377, 386, 388 Kettles V. People (111.) 107 Keystone M. Co. v. Gallagher (Colo.). . .89, 90, 408, 451, 453, 497, 600, 778 Kezartee v. Marks (Oreg.) 8, 27, 52, 300, 315, 319, 325, 345, 348, 351, 363, 580 Kiene v. Hodge (Iowa) 448 Kiessig v. Allspaugh (Cal.) 219, 229, 256, 267, 553, 554, 564, 566, 568, 588, 700, 818 Kilroy v. Mitchell (Wash.) 586, 736 Kimball W. W. Co. v. Baker (Wis.) 567 Kinsey v. Wallace (Cal.) 595 Kirschbaum v. Blair (Va.) 567 Klokke V. Raphael (Cal.) 614, 647, 724 Knight V. Roche (Cal.) 737 Knowles v. Baldwin (Cal.) 199, 215, 389, 596, 652, 755 Knowles v. Joost (Cal.) 508, 514, 795 Knudson-Jacob Co. v. Brandt (Wash.) .. .18, 84, 88, 572, 671, 673, 681, 792, 799 Koerner v. Willamette I. W. (Oreg.) 610 Kremer v. Walton (Wash.) 417, 423, 532, 533, 629 Kreuzberger V. Wingfield (Cal.).. 118, 129, 130, 163, 166, 223, 226, 693 Kruegel v. Kitchen (Wash.) 680, 708, 769 Kruse v. Wilson (Cal.) 71, 76, 98, 154, 502, 510, 548, 591 Kuback, Ex parte (Cal.) 36 Kiihlman v. Burns (Cal.) 233, 254, 492, 535, 588, 706, 707 Kurtz V. Forquer (Cal.) 554, 555, 590, 655, 690, 723 Kusehel v. Hunter (Cal.) 17, 297, 442, 457, 458, 635 Kutehin v. Engelbret (Cal.) 109 L Lacore v. Leonare (Cal.) 756 Lada v. Hawley (Cal.) 109 La Grill v. Mallard (Cal.) 55, 57, 59, 62, 63, 64,- 118, 341, 383 Laidlaw V. Marye (Cal.) 51, 70, 168, 169, 176, 229, 230, 251, 252, 253, 254, 256, 274, 694, 706,-707 Laidlaw v. Portland V. & Y." R. Co. (Wash.) 47, 144, 220, 370 Lambert v. Davis (Cal.) 40, 380 TABLE OF CASES. Ixxvii Pages Lancaster v. Maxwell (Cal.) 749, 787, 788 Lano V. Pacific & I. N. E. Co. (Idaho) 163, 174 Lane v. Turner (Cal.) 753 Lang V. Crescent C. Co. (Wash.) 021, 673, 726 Larkin v. Mullen (Cal.) 708 Latson v. Nelson (Cal.) 31, 33, 37, 483, 514 Lavanway v. Cannon (Wash.) 190, 200, 730, 774, 777, 803 Lavenson v. Standard S. Co. (Cal.) 149, 150, 592 Lavin v. Bradley (N. M.) 634 Lay G. M. Co. v. Falls etc. Mfg. Co. (N. C.) 658 Lead & O. Co. v. New Albany W. W. (Ind.) 81 Lee V. Kimball (Wash.) 138, 142, 370, 395, 615, 652, 673, 774 Leftwitch L. Co. v. Florence Mut. B. L. & S. Assoc. (Ala.) 505 Leghorn v. Nydell (Wash.) 475, 565 Leick V. Beers (Oreg.) 110, 323, 326, 329, 767 Leppert v. Lazar (Cal.) 384 Levy V. Magnolia Lodge L O. O. F. (Cal.) 573 Lewis V. Beeman (Oreg.) 314, 420, 604, 610, 673, 680, 774 Lewis V. Utah Const. Co. (Idaho) 614, 708, 719 Libbey v. Tidden (Mass.) 102 Lichty V. Houston L. Co. (Colo.) 265, 273, 277, 287 Limerick v. Ketcham (Old.) 160, 527 Linck V. Johnson (Cal.) 367, 492, 534, 679, 715, 770 Linck V. Meikeljohn (Cal.) 13, 14, 32, 395, 408, 485, 795 Lindemann v. Belden Consol. M. & M. Co. (Colo.) . .8, 9, 16, 22, 52, 116, 123, 130, 635 Lingard v. Beta Theta Pi Assoc. (Cal.) 657 Lippert v. Lazar (Cal.) 272, 283, 384 Littell V. Saulsberry (Wash.) 48, 53, 193, 361, 771, 774 Littell & Smythe Mfg. Co. v. Miller (Wash.) 264, 320, 416, 427, 528, 605. 758, 786 Little V. City of Portland (Oreg.) 485 Little Valeria G. M. & M. Co. v. Ingersoll (Colo.) . . .160, 583, 630, 790 Little Valeria M. & M. Co. v. Cunningham (Colo.) 422 Lockhart v. Eollins (Idaho) 110, 122, 124 Lomax v. Besley (Colo.) 6U0 Long V. Pierce County (Wash.) 164, 175, 177, 182, 193, 476, 691, 703, 807 Long Beach C. School Dist. v. Dodge (Cal.) .. .179, 186, 264, 558, 570, 647, 6.55 Long Beach School Dist. v. Lutge (Cal.) 469, 486. 545, 570 Lonkey v. Cook (Nev.) 410, 495, 514 Lonkey v. Keyes S. M. Co. (Nev.) 600, 601 Lonkey v. Wells (Nev.) 23, 298, 307, 313, 335, 343, 609, 634, 751 Loonie"^ v. Hogan (N. Y.) 508 Los Angeles G. M. Co. v. Campbell (Colo.) 49, 773 Los Angeles P. B. Co. v. Higgins (Cal.).. 230, 231, 626^ 632, 756, 770 Ixxviii TABLE OP CASES. Pages Los Angeles P. B. Co. v. Los Angeles P. B. & D. Co. (Cal.) 97, 206, 413, 625, 643, 770 Los Angeles T. Co. v. Wilshire (Cal.) 268, 274 Lothian v. Wood (Cal.) 141, 151, 358, 415, 422, 434, 462 Louisville & N. P. E. Co. v.'House (Tenn.) 595 Loup V. California So. E. Co. (Cal.) 182, 188, 189, 620 Loveland v. Garner (Cal.) 658 Lowe V. Turner (Idaho) 628, 672, 793 Lowe V. Woods (Cal.) 40 Lowrey v. Svard (Colo.) 493, 757, 760 Lucas V. Eedward (Hawn.) 17, 22, 293, 447, 451, 750 Luckhart v. Ogden (Cal.) 162, 175, 261 M Macomber V. Bigelow (Cal.) 20, 25, 26, 57, 70, 73, 77, 78, 117, 128, 229, 252, 307, 396, 397, 413, 488, 489, 493, 499, 538, 620, 626, 652, 711, 714, 719, 73;^, 741, 742, 751, 753, 755 Macondray v. Simmons (Cal.) 4, 5, 650 Madary v. Smartt (Cal.) 87, 121, 151, 360, 634, 830 Madera F. & T. Co. v. Kendall (Cal.). .165, 204, 226, 254, 296, 303, 326, 329, 330, 368, 369, 499, 634 Maher v. Shull (Colo.) .. .23, 52, 166, 227, 321, 419, 422, 453, 459, 468 Mahoney v. Braverman (Cal.) 737 Mahoney v. Butte H. Co. (Mont.) 702 Main Inv. Co. v. Olsen (Wash.) 184, 476, 696, 791 Mallory v. La Crosse Abattoir Co. (Wis.) 85 Malone v. Big Flat G. M. Co. (Cal.) 51, 62, 89, 91, 101, 102, 123, 124, 132, 146, 153, 301, 307, 308, 327, 330, 359, 380, 392, 399, 409, 580, 584, 602, 603, 648, 654, 711, 712, 750 Malter v. Falcon M. Co. (Nev.) 16, 23, 306, 307, 322, 323 Mammoth M. Co. v. Salt Lake M. Co. (U. S.) 530. 585 Mangrum v. Truesdale (Cal.) 47, 219, 479, 552, 562 Mannix V. Tryon (Cal.)... 48, 49, 71, 75, 76, 77, 85, 761, 770, 785. 788 Marble Co. v. Eailroad Co. (U. S.) 145 Marble L. Co. v. Lordsburg Hotel Co. (Cal.) 118, 273, 274, 280, 283, 285, 286, 287, 386, 387, 388, 682, 685, 703, 704, 727, 728, 740, 743, 744 March v. McKoy (Cal.) 143, 606, 751 Marchant v. Hayes (Cal.) 66, 67, 71, 229, 252, 274, 278, 279, 283, 284, 285, 289, 377, 384, 388, 415, 434, 467, 493, 499, 500, 539, 583, 587, 588, 664, 758, 759 Marean v. Stanley (Colo.) . .294, 450, 577, 584, 585, 586, 785, 806, 850 Maris v. Clevenger (Wash.) 573 Marks v. Pence (Wash.) • 16, 35, 779 Marquette O. H. Co. v. Wilson (Mich.) 566 Mars V. McKay (Cal.) 371, 37d, 728. 730 Marsh v. Morgan (Mont.)' , 49, 89, 118, 585, 694 Marshall v. Cardinell (Oreg.) 445, 819 TABLE OF CASES. Ixxix Pages Martin v. Simmons (Colo.) 350, 353, 727 Mason v. Gerraaine (Mont.) 20, 450, 451, 463, 539, 577, 579, 585, 609, 727, 729, 751, 752, 753, 760, 782, 793 Masow V. Fife (Wash.) 42.3, 424, 425, 430 Matthicsen v. Arata (Oreg.) 151, 423, 639, 703 Maxon v. School Dist. (Wash.) 153, 154, 608 Maynard v. Ivey (Nev.) 306, 311, 322, 356, 580 Mayrhofer v. Board of Education (Cal.) 154 McAllister v. Benson M. & S. Co. (Ari/c.) 143 McAllister v. Clopton (Miss.) 35 McAlpin V. Duncan (Cal.) 22, 495, 507, 508, 514 McCabe v. Grey (Cal.) 448 McCants v. Bush (Cal.) 511, 514 McClain V. Hutton (Cal.) 67, 91, 120, 129, 132, 148, 251, 301, 316, 323, 324, 328, 337, 338, 341, 342, 345, 353, 365, 368, 449, 456, 457, 459, 528, 529, 531, 715, 716, 718, 719, 738, 747, 763, 784 McClain v. Knight (Cal.) 453 McClair v. Huddart (Colo.) 610 McConnell v. Corona City W. Co. (Cal.). . .172, 194, 269, 476, 587, 647, 802 MeCormick v. Bailey (Cal.) 658 McCormick v. Los Angeles W. Co. (Cal.) 91, 122, 131 McCornick v. Sadler (Utah) 480, 681, 702 McCrea v. Craig (Cal.) 4, 7, 9, 42, 44, 451, 458, 634 McCrea v. Johnson (Cal.) 20, 507, 511, 539 McCue V. Jackman (Cal.) 289, 680 McDonald v. Backus (Cal.) 308, 329, 369, 603, 606 McDonald v. Hayes (Cal.) 244, 246, 284, 286, 288, 289, 290, 481, 482, 495, 697, 785 McDonald v. Lewis (Wash.) 184, 697 McDonald v. Mission View H. Assoc. (Cal.) 671 McEwen v. Monana P. & P. Co. (Mont.) . . .86, 344, 453, 609, 659, 664 McFadden v. Ellsworth M. & M. Co. (Nev.) 595 McFadden v. O'Donnell (Cal.) 182, 183, 194 McGinley v. Hardy (Cal.) 262, 269 McGinty v. Morgan (Cal.) 25, 27, 93, 298, 307, 337, .524, 689, 732 McGlauflin v. Wormser (Mont.) .. .17, 26, 187, 196, 293, 306, 615, 621, 799 McGlynn v. Moore (Cal.) 155 McGonigle v. Klein (Colo.) 268, 270, 587, 618 McGreary v. Osborne (Cal.) 135, 143, 415, 450 McGrew v. Barnes (Hawn.) 475 McGuire v. Quintana (Cal.) 657, 661 McHugh V. Slack (Wash.) . . . . 16, 24, 298, 303, 304, 332, 338, 349, 351, 354, 357, 797 Mclntyre v. Barnes (Colo.) 174, 271, 410, 516, 661 Mclntyre v. Trautner (Cal.) . . . .118, 165, 193, 273, 283, 312, 330, 536, 712, 717, 723, 772, 773 IXXX TABLE OP CASES. Pages MeKinley, Estate of (Cal.) 071 McKinnon v. Higgins (Oreg.) 558, 818 McLaughlin v. Green (Miss.) 398 McLaughlin v. Perkins (Cal.) 4, 15, 189, 383, 386, 684 McManus, Ex parte (Cal.) 35. 107 McMenomy v. White (Cal.).. 71, 229, 233, 2.54, 256, 493, 499, 553, 583, 588, 606, 748. 759 McNeil V. Borland (Cal.) 4, 15, 17, 18, 49, 598, 760 McPherson v. Hattieh (Ariz.) 109, 614, 623, 639, 733 McPherson v. San Joaquin County (Cal.) 153, 174, 268, 269, 587 McPherson v. Smith (Wash.) 687, 799 Megrath v. Gilmore (Wash.) 675, 692, 693, 703 Meigs V. Bruntsch (Cal.) 194 Mellor V. Valentine (Colo.) 356, 417, 429, 450, 453, 682 Mentzer v. Peters (Wash.) 421, 434, 760 Merced Bank v. Eosenthal (Cal.) 790 Merced L. Co. v. Bruschi (Cal.) 212, 493, 497, 771 Merchant v. Humeston (Wash.) 300, 312, 317, 359 Merrigan v. English (Mont.) 73, 313, 413, 425, 451, 529, 657 Merriner v. Jeppson (Colo.) 706, 795 Meyer v. Quiggle (Cal.) 26, 371 Meyers v. Pacific Cons. Co. (Oreg.) 183 Meyers v. Wood (Tex.) 564 Michael v. Eeeves (Colo.) 16, 17, 43, 87, 94 Michalitschke Bros. & Co. v. Wells, Fargo & Co. (Cal.) 657 Middleton v. Arastraville M. Co. (Cal.) 457, 477 Midland R. Co. v. Wilcox (Ind.) 139, 404 Miles V. Coutts (Mont.) 573, 574 Miles Co. V. Gordon (Wash.) 430 Miller v. Carlisle (Cal.) 49, 599, 756, 761 Miller v. Luco (Cal.) 667 Miller v. Stewart (U. S.) 556 Miller v. Stoddard (Minn.) 448 Miller v. Thorpe (Colo.) 34, 800 Miller v. Waddingham (Cal.) 148, 592 Mills V. Fletcher (Cal.) 667 Mills V. La Verne L. Co. (Cal.) 20. 5.39 Mills's Estate, In re (Oreg.) 658 Miltimore v. Nofziger Bros. L. Co. (Cal.) 32, 51. 465 Ming Yue v. Coos Bay R. & E. R. & N. Co. (Oreg.) ..... .585, 758, 760 Minneapolis T. Co. v. Great N. R. Co. (Minn.) ' 193 Minor v. Marshall (N. M.) 4, 22, 25, 27, 303, 312, 324, 362, 363, 364, 369 Missoula M. Co. v. O'Donnell (Mont.) IS, 26. 84, .87. 94, 319, 325, 384, 417, 422, 424, 458, 468, 573, 600, 604, 634, 679, 681 Mochon V. Sullivan (Mont.)... 4, 8, 9, 16, 18, 451, 585, 586, 732, 758 Mohr V. Byrne (Cal.) : 786 Moisant v. McPhee (Cal.) ' 152 TABLE OF CASES. Ixxxi Pages Moise V. Mansfield (Wash.) 162 Mondran v. Goux (Cal.) 615 Montague (W. W.) Co. v. Furness. See W. W. Monague Co. v. Fur- ness. Montana L. & Mfg. Co. v. Obelisk M. & C. Co. (Mont.) . . .319, 364, 403, 422, 423, 424, 450 Montana O. P. Co. v. Boston & M. C. & S. Min. Co. (Mont.) 585 Montgomery v. Rief (Utah) 571 Montrose v. Conner (Cal.) 347, 349, 354, 450, 458, 609, 610, 688 Moore v. Jackson (Cal.) 417, 418, 423, 532 Moore v. Kerr (Cal.) 190, 268, 283 Moore v. Lent (Cal.) 498 Morehouse v. Collins (Oreg.) 347, 689 Morgan, In re (Colo.) 35 Morgan v. Birnie (Eng.) 188 Morgan v. Board of Education (Cal.) 492, 497 Morrell H. Co. v. Princess G. M. Co. (Colo.) 160, 422, 468 Morris v. Wibaux (111.) 175 Morris v. Wilson (Cal.) 4, 15, 17, 33, 67, 71, 195, 229, 251, 252, 588, 757, 769 Morrison v. Carey-Lombard Co. (Utah) 21, 263, 293, 294, 295, 297, 345, 376, 416, 451, 458, 464, 503, 515 Morrison v. Clark (Utah) 161, 417, 527, 530 Morrison v. Inter-Mountain Salt Co. (Utah).. 338, 451, 495, 624, 626, 701 Morrison v. Willard (Utah).. 18, 93, 298, 303, 306, 309, 311, 325, 495, 496, 626, 634, 637, 689 Morrison v. Wilson (Cal.) 169 Morrison, Merrill & Co. v. Willard (Utah). . .16, 67, 1(52. 298, 338, 411 ]\torrow V. Merritt (Utah) 423, 430, 530 Morse v. De Ardo (Cal.) 33, 52, 145, 146 Morso V. Hinckley (Cal.) 159 Mouat L. & I. Co. V. Freeman (Colo.) 308, 311, 614, 687 Mouat L. Co. V. Gilpin (Colo.) 21, 42, 488 Mount Tacoma M. Co. v. Cultum (Wash.) 347 Mountain E. Co. v. Miles (N. M.). . .8, 25, 152, 293, 378, 396, 403, 434, 575. 576 Mowry v. Starbuck (Cal.) 690 Moxley v. Shepard (Cal.) 463, 465 Mras V. Duff (Wash.) 336, 340 Mulcahy V. Buckley (Cal.).. 636, 647, 658, 659. 768, 773, 774, 775, 777 Muldoon V. Lynch (Cal.) 186 Mullally V. Townsend (Cal.) 70S Mundy v. Stevens (Fed.) ,167 Muuroc V. Sedro L. & S. Co. (Wash.) 725 Murray v. Swanson (Mont.) 22, 450, 451, 774, 775 Mutual L. Ins. Co. v. Walling (N. J.) 549 Mech. Liens — P Ixxxii TABLE OF CASES, N Pages Nason v. John (Cal.).-.\ 204, 205, 206, 410, 623, 626, 790 Nason v. Northwestern M. & P. Co. (Wash.) . . .130, 171, 294, 449, 4.52, .597. 610 National Bank of C. v. Schirni (Cal.) 564, 675 National F. & P. Works v. Oconto Water Co. (Fed.) 405 Naumberg v. Young (N. J.) 693 Neher v. Crawford (N. M.) 750, 768, 778 Neihaus V. Morgan (Cal.) • • • -83, 241, 311, 312, 315, 340, 587, 632, 752. 760 Neilsou V. Iowa E. E. Co. (Iowa) 702 Nelson v. Clerf (Wash.) 142, 416, 430 Neufelder v. Third Street & S. E. (Wash.) 149 Newcomb v. White (N. M.) 725, 796 Newell V. Brill (Cal.)... 25, 119, 305, 306, 329, 334, 33S, 395, 646, 658, 716, 718, 719, 766, 793 New England Engineering Co. v. Oakwood Street E. Co. (Ohio) . . 144 Newport W. & L. Co. v. Drew (Cal.). .155, 185, 189, 196, 263, 469, 509. 516, 522, 540 Nichols V. Culver (Conn.) 505 Nichols V. Eandall (Cal.) 690 Nicolai Bros. v. Van Fridagh (Oreg.).16, 23, 24, 25, 26, 306, 314, 579 Nofziger Bros. L. Co. v. Shafer (Cal.) 333, 334, 340, 714 Nolan V. Lovelock (Mont.) 313, 535, 577, 619, 677, 679, 758 North Pacific L. Co. v. Spore (Oreg.) 264, 671 Northwest B. Co. v. Tacoma S. B. Co. (Wash.). .331, 417, 425, 605, 752 Nottingham v. McKendrick (Oreg.) 87, 311, 327, 331, 445, 540 Novelty M. Co. v. Heinzerling (Wash.) 534, 561. 692, 703, 731 Noyes v. Barnard (Fed.) 485 Nystrom v. London & N. W. Am. Mortg. Co. (Minn.) 351 O O'Connell v. Main etc. Hotel Co. (Cal.) 587 O'Connor v. Adams (Ariz.) 168, 176, 196, 617, 726 O'Connor v. Dingley (Cal.) 179, 575, 614, 617, 690 O'Connor v. Frasher (Cal.) 737 Odd Fellows' Hall v. Masser (Pa.) 86, 247 O'Donnell v. Kramer (Cal.) 410, 483, 624, 660 O'Driscoll V. Doyle (Colo.) 570 Olson V. Snake EiverV.E. Co. (Wash.). 69, 177, 188, 269,369, 719, 801 O'Neal V. Kelly (Ark.) 556 Ontario-Colorado G. M. Co. v. MacKenzie (Colo.) 103, 661 Ord v. Steamer Uncle Sam (Cal.) 658 Oregonian etc. Co. v. Oregon etc. Co. (Fed.) : 659 Orlandi v. Gray (Cal.) 112, 385, 742 Orman v. Crystal E. E. Co. (Colo.) 41, 43, 451, 593, 594. 786 Orman v. Eyan (Colo.) ." .196, 584, 778 O'Eourke v. Butte Lodge (Mont.) 583, 584, 585, 586, 758 ' TABLE OF CASES. Ixxxiii Pagea Ortega v. Cordrro (Cal.) ^JTl Osborn v. Logus (Oreg.) 297, 304, 306, 309, 310, 318, 331, 332, 529, 530, 605, 608, 610, 654, 712, 722, 725, 757, 786, 787 Oviiigton V. ^tna I. Co. (Wash.) 551, 557, 561 Owen V. Casey (Wash.) 423 P Pacific- B. Co. V. United States F. & G. Co. (Wash.) 554, 558, 568, 604, 614 Pacific H. Co. V. Lincoln (Hawn.) 75, 258, 265, 273, 288, 386, 410, 578, 599, 750 Pacific Mfg. Co. V. Brown (Wash.) 294, 377, 573, 593, 752 Pacific Mfg. Co. V. School Dist. (Wash.) 154 Pacific Mut. L. Ins. Co. v. Fisher (Cal.) 53, 55, 57, 59, 62, 110, 159, 216, 301, 311, 321, 366, 376, 383, 411, 449, 453, 494, 540, 546, 578, 579, 647, 700, 705, 718, 733, 753, 754, 761, 772, 774, 785, 787, 789, 790, 803 Pacific R. M. Co. v. Bear Valley Irr. Co. (Cal.) 139, 146, 301, 357, 358, 406, 408, 605, 799 Pacific R. M. Co. v. English (Cal.) 68, 176, 268, 538, 542, 709, 796, 799 Pacific R. M. Co. v. Hamilton (Wash.).. 61, 62, 72, 80, 530, 629, G30 Pacific R. M. Co. v. James Street Const. Co. (Fed.) 61, 62, 80, 88, 144, 406, 416, 530 Pacific States S. L. & B. Co. v. Dubois (Idaho). . .6, 12, 13, 15, 54, 58, 114, 326, 447, 451, 457, 465, 751 Paddock v. Stout (111.) 398 Paige V. Carroll (Cal.) 554, 594 Palmer v. Lavigne (Cal.) 2, 45, 93, 119, 120, 326, 427, 654, 712 Palmer v. Uneas M. Co. (Cal.) 123, 576, 622, 724, 727 Palmer v. White (Cal.) 252, 588 Parke and Lacy Co. v. Inter Nos O. & D. Co. (Cal.) 87, 97, 138, 142, 143, 362, 364, 369, 395, 416, 566, 631, 636, 637, 640, 648, 654, 750, 801 Parker v. Savage Placer M. Co. (Cal.) 127, 602, 625, 720 Parmalee v. Hambelton (111.) 407 Parsons v. Pearson (Wash.) 320, 426, 605 Patent Brick Co. v. Moore (Cal.) 87, 186, 540, 561, 619, 632, 633, 695, 699, 737 Patrick Land Co. v. Leavenworth (Neb.) 448 Patterson v. Gallagher (Oreg.) 8, 119, 152 Peacock v. United States (Fed.) 659 Pearce v. Albright (N. M.) 303, 361, 431, 493, 673, 750, 824 Peckham v. Fox (Cal.) 33, 48, 770, 771 Pelton V. Minah Consol. M. Co. (iVIont.) 422, 423, 425 Pennie v. Hildreth (Cal.) 641 Pennsylvania Steel Co. v. ,J. K. I'otts S. & L. Co. (Fed.). . .139, 140, 144 Penrose v. Calkins (Cal.) 347, 348 Ixxxiv TABLE OF CASES. Pages People V. Center (Cal.) 641 People V. Dodge (Colo.) 1.33. 217 People V. Hartley (Cal.) .554, 723 People V. Love (Cal.) 723 People V. Soto (Cal.) 498 People's L. Co. v. Gillard (Cal.). . .47, 1.53, 220, 554, 557, 570, 571, 726, 812, 818 Pepley v. Huggins (Cal.) 447 Perkins v. Boyd (Colo.) 20, 49, 359, 368, 388, 389, 394, .541. 630, 770, 796 Perkins v. West Coast L. Co. (Cal.) 686 Perrault v. Shaw (N. H.) 91 Perrine v. Marsden (Cal.) 592 Perry v. Brainard (Cal.) 266, 374, 377 Perry v. Parrott (Cal.) 518, .541, 545 Perry v. Quackenbush (Cal.) 66, 276, 278, 283, 286, 2S9, 587, 588, 704, 738, 740. 797 Peterman v. Milwaukee B. Co. (Wash.) 579, 583, 680, 719, 758 Peters v. Mackay (Wash.) 219, 565, 567 Peterson v. Dillon (Wash.) 13, 16, 18, 161, 427, 530, 592, 593, 605, 728, 756 Peterson v. Shain (Cal.) 68, 74, 727, 743, 797 Phelps V. Maxwell's Creek G. M. Co. (Cal.). .4, 306, 322, 434, 435, 439, 494, 534, 760, 761, 763 Philadelphia M. & T. Co. v. Miller (Wash.) 149, 703 Phillips V. Salmon E. M. & D. Co. (Idaho). .23, 317, 354, .360, 399, 462, 688 Pierce v. Birkholm (Cal.) 59, 164, 233, 238, 239, 288, 390 Pierce v. Willis (Cal.) 705. 745 Pilz V. Killingsworth (Oreg.) . .4, 8, 16, 22, 24, 130, 148, 296, 303, 306, 402, 529, 631, 637, 639 Pioneer S. & L. Co. v. Freeburg (Minn.) 566 Pitschke v. Pope (Colo.) 4, 16, 23, .52, 119, 131 Piatt V. Griffith (N. J.) 549 Poett V. Stearns (Cal.) 641 Pogue V. Kaweah P. & W. Co. (Cal.) 186 Pohlman v. Wilcox (Cal.) 68, 78, 288, 543, 544, 703 Porter v. Arrowhead E. Co. (Cal.) 270, 587 Portland L. Co. v. School Dist. (Oreg.) 154 Post V. Fleming (N. M.) 152, 317, 394, 441, 462,- 533, 574, 766 Post V. Miles (N. M.)...22, 25, 152, 157, 304, 306, 310, 338, 403, 416, 423, 431, 434, 529, 535, 585, 604, 654, 751, 764 Potvin V. Deuuy Hotel Co. (Wash.) 21, 84, 447, 458, 477, .548, 57.5, 592, "680, 697, 704 Potvin V. Wickersham (Wash.) 583, 584, 588, 592 Powell V. Nolan (Wash.) 25, 67, 161, 197, 300, 307, 316, 320, 358, 368, 427, 456, 462, 539, 580, 585, 598, 600, 605, 609, 643, 668, 680, 687, 712, 717, 725, 730, 799 TABLE OF CASES. IxXXV Pages Prentice, The James H. (Fed.) 738 Prcsbj-terian Church v. Santy (Kan.) 717 Prcsc'ott Nat. Bank v. Head (Ariz.) . .5.50, 5.55, 560, 561, 562, 564, 792, 818 Preston v. Sonora Lodge (Cal.) 447, 455, 457 Price V. Scott (Wash.) 688 Prince v. Neal-Millard Co. (Cal.) 34 Provident M. B. L. Assoc, v. Shaffer (Cal.) 17, 371, 460, 593 Purmort v. Tucker L. Co. (Colo.) 43 Purser v. Cady (Cal.) 451, 781 Purtell V. Chicago F. & B. Co. (Wis.) 404 Q Quackenbush v. Artesian L. Co. (Orcg.) 529 Quale V. Moon (Cal.) 34, 38, 263, 409, 484, 650, 662, 667 Quinby v. Slipper (Wash.) 596, 643, 779 R Railway Co. v. Birnie (Ark.) 175 Rainsford v. Massengale (Wyo.) 655 Ramish v. Hartwell (Cal.) 34, 35 Ramsey v. Johnson (Wyo.) 541 Randall v. Hunter (Cal.) 786 Rankin v. Malarkey (Oreg.) 294, 303, 306, 310, 326, 331 Raphael (H.) Co. v. Grote. See H. Raphael Co. v. Grote. Rapp V. Spring Valley G. Co. (Cal.) 725, 768, 772, 773, 775, 776 Rara Avis G. & S. Co. v. Bouscher (Colo.) 91, 123, 130, 131 Rasmusson v. Liming (Wash.) 604, 757 Rauer v. Fay (Cal.) 20, 163, 264, 306, 539, .543, 619, 660, 691, 721 Rauer v. Silva (Cal.) 104 Rauer v. Welsh (Cal.) 20, 163, 539, 543, 691, 721 Ray County Sav. Bank v. Cramer (Mo.) 89 Read v. Buffum (Cal.) 658 Reading v. Reading (Cal.) 649 Rebman v. San Gabriel V. L. & W. Co. (Cal.) . . .202, 226, 251, 252, 253, 588, 663, 668, 694, 706, 707, 740, 801 Reed v. Norton (Cal.) 165, 176, 210, 214, 240, 242, 243, 248, 285, 309, 318, 332, 341, 363, 377, 388, 471, 473, 474, 513, 530, 615, 627, 628, 631, 633, 6,34, 708, 712, 715, 716, 717, 720, 797 Reedy v. Smith (Cal.) 162, 174 Reese v. Bald Mountain Consol. G. M. Co. (Cal.) 15, 17, 27, 52, 125, 4.36, 437, 438, 440, 527, 533, 630, 660, 679, 680, 737. 742, 743, 745, 747, 795 Reeve v. Kennedy (Cal.) 601 Rcichenbaeh v. Sage (Wash.) 175, 187, 269 Remington v. Fidelity & D. Co. (Wash.) 557 Remy v. Olds (Cal.) 648 Renton v. Conley (Cal.) 511, 514, 527, 624, 631 IxXXVi TABLE OP CASES. Pages Kenton v. Monnier (Cal.) 528, 534, 536, 538, 542, 675 Reynolds v. Hosmer (Cal.) 142 Reynolds v. Jourdan (Cal.) 616, 690 Riale v. Roush (Mont.) 584, 585, 758 Rialto M. & M. Co. v. Lowell (Colo.) 538, 649 Rice V. Carmichael (Colo.) 7, 23, 35, 37, 306, 361, 505 Rice V. Hodge (Kan.) 702 Richards v. Lewisohn (Mont.)... 9, 16, 22, 26, 298, 318, 319, 322, 323, 722, 757 Richards v. Shear (Cal.) 45, 425 Rico R. & M. Co. V. Musgrave (Colo.) 23, 160, 315, 359, 417, 430, 467, 682 Riddell v. Peck-Williamson H. & V. Co. (Mont.) 170, 274, 618, 675 Ripley v. Cochiti G. M. Co. (N. M.) 84, 123 Ritter v. Stevenson (Cal.) 18, 539, 540, 541 Roberts v. Treadwell (Cal.) 595 Roberts v. Wilcoxson (Ark.) 584 Robertson V. Moore (Idaho). 303, 395, 585, 615, 725, 732, 737, 771, 796 Robinson v. Brooks (Wash.) 368 Robinson v. Merrill (Cal.) 658 Roeber, In re (Fed.) 546 Roebling Sons Co. v. Bear Valley Irr. Co. (Cal.). .83, 87, 140, 633, 737, 797 Roebling's Sons Co. v. Humboldt E. L. & P. Co. (Cal.) 55, 64, 65, 66, 74, 80, 82, 83, 143 Root V. Bryant (Cal.) 458, 737, 791 Rose V. Munie (Cal.) 447 Rosenkranz v. Wagner (Cal.) 510, 511, 514, 624, 741 Rosina v. Trowbridge (Nev.) 18, 420, 434, 445, 604, 605, 606, 609 Ross V. Campbell (Colo.) 149 Rounds V. Whatcom Co. (Wash.) 218 Rourk V. Miller (Wash.) 658 Rourke v. Bergevin (Idaho) 457 Rousseau v. Hall (Cal.) 606 Routt V. Dils (Colo.) 560, 570 Rowland v. Harmon (Oreg.) 331, 579 Rowley v. Varnum (Okl.) 426 Royee v. Latshaw (Colo.) 149 Roylance v. San Luis Hotel Co. (Cal.) 2m, 374, 377, 595, 787 Runey v. Rea (Oreg.) • 351 Rupe V. New Mexico L. Assoc. (N. M.) 585, 758, 764 Russ L. & M. Co. V. Garrettson (Cal.) 26, 27, 53, 205, 221, 306, 312, 325, 328, 341, 346, 360, 480, 516, 525, 526, 607, 623, 624, 627, 638, 655, 708, 712, 746, 757", 772, 777, 800 Russ L. & M. Co. V. Muscupiabe L. & W. Co. (Cal.) 268 Russ L. & M. Co. V. Roggejikamp (Cal.) 511, 514. 522 Russell V. Hayner (Alas.) 9, 16, 17, 24,-25, 26, 160, 306, 323, 533, 585 TABLE OF CASES. IxXXVli Pages Eyan v. Jaques (Cal.) 708 Eyan v. Staples (Fed.) 750, 778, 782, 784 Eyudak v. Seawcll (Old.) 24, 54, 72, 74, 84, 87, 264, 371, 633, 651, 687 S Sabin v. Connor (Fed.) 41, 44, 293, 451, 596 Sachse v. Auburn (Cal.) 645, 793 Sacramento v. Dunlap (Cal.) 554, 723 Sagmeister v. Foss (Wash.) 320, 416, 605 Salt Lake F. & M. Co. v. Mammoth M. Co. (Utah) 530 Salt Lake H. Co. v. Chainman M. & E. Co. (Fed.) 23, 25, 52, 64, 81, 123, 144, 192, 199, 274, 365, 368, 383, 399, 406, 574 Salt Lake L. Co. v. Ibex M. & S. Co. (Utah.) 9, 19, 376, 403, 547, 575, 584 Sample v. Fresno F. & I. Co. (Cal.) 269 Sandberg v. Victor G. & S. M. Co. (Utah) 292, 572. 599, 672, 690, 714, 719, 754, 797, 799, 800 San Diego v. San Diego & L. A. R. Co. (Cal.) 159 San Diego L. Co. v. Wooldredge (Cal.) 25, 27, 53, 176, 208, 209, 213, 214, 224, 225, 250, 340, MC>, 364 Sandstrom v. Smith (Idaho) 585, 738 Sanford v. Kunkel (Utah).. 14, 149, 151, 371, 395, 398, 417, 448, 456, 762, 778, 779 San Francisco v. Buckman (Cal.) 109, 130 San Francisco B. Co. v. Dumbarton L. & I. Co. (Cal.) 270, 271, 695 San Francisco Gas Co. v. San Francisco (Cal.) 658 San Francisco L. Co. v. Bibb (Cal.) 47, 218, 219, 552, 792 San Francisco L. Co. v. O'Neil (Cal.) 229, 231, 233, 234, 236, 254, 479, 798 San Francisco P. Co. v. Fairfield (Cal.) 15, 16, 17, 26, 52, 158, 265, 334, 606, 608,, 615, 650, 676, 700, 759 San Joaquin L. Co. v. Welton (Cal.) 384, 653, 776 San Juan etc. Co. v. Finch (Colo.) 585, 604, 778 San Juan H. Co. v. Carrothers (Cal.) 465, 604, 609, 614, 640 San Miguel Consol. G. M. Co. v. Stubbs (Colo.) 676, 701, 731 San Pedro L. Co. v. West (Cal.) 98, 711, 714, 718 Santa Barbara v. Huse (Gal.) 130, 628 Santa Clara V. M. & L. Co. v. Williams (Cal.). .273, 294, 376, 384, 492, 493, 499, 760 Santa Cruz Rock Pav. Co. v. Lyons (Cal.) . . .6, 26, 39, 40, 46, 117, 128, 130, 161, 320, 322, 323, 324, 367, 423, 430, 442, 527, 699 Santa Monica L. & M. Co. v. Hege (Cal.). . .81, 93, 148, 165, 204, 273, 298, 303, 309, 313, 316, 343, 344, 365, 377, 434, 435, 619, 634, 703, 708, 711, 714, 716, 718, 719, 722 Sautter v. McDonald (Wash.) 305, 326, 339, 363, 704 Savage v. Dinkier (Okl.) 652, 786 Savage v. Glenn (Orcg.) 181, 475, 477, 481, 697 Savings & L. Soc. v. Burnett (Cal.) 549 IxXXviii TABLE OP CASES. Pages Sayre-Newton L. Co. v. Park (Colo.) 21, 347, 348, 493, 505, 608 Sayre- Newton L. Co. v. Union Bank (Colo.). 4, 16, 42, 51, 52, 73, 74, 87, 767 Scamrcon v. Denio 182, 476, 665, 767, 773 Scanlan v. San Francisco & S. J. V. R. Co. (Cal.) 186, 190, 672, 673, 675, 683, 807 Sehallert-Ganahl L. Co. v. Neal (Cal.) 28, 87, 198, 250, 307, 478, 480, 553, 561, 578, 699, 700, 734, 772, 773, 776, 777 Sehallert-Ganahl L. Co. v. Sheldon (Cal.) 265, 274, 276, 279, 377, 682, 703 Scheerer Co. (C.) (Inc.) v. Doming. See C. Scheerer Co. (Inc.) v. Darning. Sehettler v. Vendome Turkish B. Co. (Wash.) 152, 759 Schindler v. Green (Cal.) .. .159, 174, 268, 272, 273, 274, 275, 536, 802 Schmid v. Busch (Cal.) 206, 217, 473, 510, 516. 658, 672, 735 Schmidt v. City of North Yakima (Wash.) 188, 191, 275, 587 School Dist. V. Sage (Wash.) 183 Schradsky v. Dunklee (Colo.) 72, 293, 294, 451, 461, 488, 489, 505, 550 Schroeder v. Pissis (Cal.) 582, 671, 672, 733, 796, 835 Schwartz v. Knight (Cal.)... 60, 81, 279, 284, 377, 383, 453, 686, 739 Schwartz v. Saunders (111.) 398 Schweizer v. Mansfield (Colo.) 160, 422, 615, 758, 767, 786 Scottish U. & N. Ins. Co. v. Clancy (Tex.) 188 Sears v. Williams (Wash.) 218 Seattle & W. W. R. Co. v. Ah Kowe (Wash. Ter.) 44, 377, 774 Seattle L. Co. v. Sweeney (Wash.).. 25, 84, 88, 297, 300, 310, 317, 321, 324, 338, 378, 462, 530, 640, 673, 679, 702, 792, 824 Seely v. Neill (Colo.) 394, 409, 434, 438, 456, 645 Seibel v. Bath (Wyo.) 158, 421 Seldon v. Meeks (Cal.) 92, 103, 119, 121, 313, 342, 505 Sellwood L. & M. Co. v. Monnell (Oreg.) 535, 631, 679 Service v. McMahon (Wash.) 593, 795 Shapleigh v. Hull (Colo.) 416, 419, 421, 533 Sharon v. Minnick (Nev.) 448 Sharp V. Lumley (Cal.) 611 Shaughnessy v. American Surety Co. (Cal.) 47, 218, 791 Shaver v. Murdock (Cal.) 71, 179, 190, 245, 261, 495, 676, 690 Shaw V. Fjellman (Minn.) 193 Shaw V. Wandesforde (Cal.) .' 471, 737 Sheehan v. Winchill (Wash.) 417 Shortall v. Puget Sound Bridge & D. Co. (Wash.) 36 Shuffloton V. Hill (Cal.) 18, 41, 450, 514 Sichlcr V. Look (Cal.) 641, 642 Sickman v. Wollett (Colo.).. 49, 305, 326, 332, 334, 650, 770, 800, 830 Sidlinger v. Kerkow (Cal.).-. 118, 143, 151, 183, 203, 204, 205, 206, 208, 225, 226, 243, 259, 574, 645, 765, 766, 792, 793 TABLE OF CASE3. Ixxxix Pages Sierra Nevada Co. v. Whitmore (Utah) 75, 88, 197, 409, 411, 412, 452, 470, 480 Silvester v. Coe Quartz M. Co. (Cal.) ... .87, 96, 139, 146, 293, 301, 358, 408, 439, 443, 445, 687, 737, 800 Silvey v. Neary (Cal.) 671 Simons v. Webster (Cal.) 53, 539, 703, 795 Simoiison v. Grant (Minn.) 559, 566 Simonton v. Kelley (Mont.) 585, 732 Simpson v. Gamache (Cal.) 97, 486, 488, 591 Sims V. Petaluma G. L. Co. (Cal.) 159, 647, 696, 740, 796 Skagit Co. V. Trowbridge (Wash.) 183 Skelly V. School Dist. (Cal.) 521 Skym V. Weske Consol. Co. (Cal.) 162, 163, 216, 229, 493, 575, 647, 691, 774, 795 Skyrme v. Occidental M. & M. Co. (Nev.). .18, 20, 23, 25, 41, 299, 301, 306, 326, 392, 539, 575, 615, 637 Slight V. Patton (Cal.) 118, 304, 310, 311, 330, 332, 340, 366, 636, 639, 640, 641, 653, 711 Slocum V. Bear Valley Irr. Co. (Cal.) 34 Sly V. Palo Alto G. M. Co. (Wash.) 632, 652, 655 Small V. Foley (Colo.)... 4, 23, 41, 43, 87, 138, 139, 141, 202, 300, 308, 315, 317, 383, 402, 403, 451, 504, 540, 593, 633, 753 Smallhouse v. Kentucky & M. G. & S. M. Co. (Mont.) 119, 124, 300 Smith v. Bowman (Utah) 563, 570, 571 Smith v. Bradbury (Cal.) 203, 250 Smith v. Brady (N. Y.) 268 Smith V. Briggs (N. Y.) 188 Smith V. Newbaur (Ind.) 398 Smith V. Owens (Cal.) 576 Smith V. Sherman M. Co. (Mont.) 22, 306, 313, 399 Smith V, Solomon (Cal.) 772, 777 Smith V. Wilcox (Oreg.) 72, 75, 77, ]66, 198, 299, 300, 410, 462, 529, 530 Smith V. Wilkins (Oreg.) 447, 456, 459, 637, 778, 784, 802 Smith V. Wilson (Oreg.) 76 Snell V. Bradbury (Cal.) 28, 37, 47, 203, 218, 224, 225, 241, 498 Snell V. Payne (Cal.)... 90, 317, 334, 367, 463, 580, 724, 733, 748, 800 Snodgrass v. Holland (Colo.) 604, 605, 731 Sonoma County v. Hall (Cal.) 554, 594 Soule v. Dawes (Cal.) 423, 442, 447, 448, 450, 451, 458, 460 Southern California L. Co. v. Jones (Cal.). .203, 204, 205, 206, 208, 209, 212, 221, 260, 288, 290, 478, 482, 516 Southern California L. Co. v. Ocean Beach H. Co. (Cal.) . . . .780, 781 Southern California L. Co. v. Peters (Cal.) 25, 456, 462, 463 Southern California L. Co. v. Schmitt (Cal.) ..254, 294, 376, 493, 499, 515, 606; 761 Southern Pac. K. Co. v. Allen (Cal.) Ill xe TABLE OP CASES. Pages Suuth Fork C. Co. v. Gordon (U. S.) 4, 5, 41, 89, 131, 357, 405, 406, 580, 603 bpalding v. Burke (Wash.) 110, 112, 197, 757, 792 Spangler v. Green (Colo.) 41, 43, 597 Spargo V. Nelson (Utah) 451, 454 Sparks v. Butte County G. M. Co. (Cal.) 55, 59, 60, 62, 74, 80, 81, 101, 383 Spaulding v, Coeur d'Alene E. & N. Co. (Idaho) 183, 192, 270, 479, 796, 799 Spaulding v. Mammoth Springs M. Co. (Cal.) 35 Spears V.Lawrence (Wash.). 314, 334, .342, 412, 430, 528, 562, 574, 758 Spinney v. Griffith (Cal.) 4, 15, 16, 33, 67, 588 Spokane & I. L. Co. v. Loy (Wash.) 555, 569, 571 Spokane Mfg. & L. Co. v. McChesney (Wash.).. 38, 411, 434, 530, 662 Sprague Inv. Co. v. Mouat L. & I. Co. (Colo.) . . .17, 20, 22, 43, 35, 292, 304, 311, 321, 324, 419, 463, 541, 628, 733 Springer L. Assoc, v. Ford (U. S.) 24, 25, 310, 314, 397, 579 Staples V. Eyan (Fed.) 778, 782, 784 Star M. & L. Co. v. Porter (Cal.) 263, 334, 341, 714, 711, 715, 717, 718, 720 State V. Henry (Wash.) 36 State V. Holden (Utah) 35 State V. Knowles (Md.) 108 State V. Liebes (Wash.) 218 State V. Livingston C. B. & M. Co. (Mont.) 35 State ex rel. Milsted v. Butte City W. Co. (Mont.) 658 Steamboat James Battle v. Warning (Ala.) 89 Steel V. Argentine M. Co. (Idaho) 325, 421, 430 Steigleman v. McBride (111.) , 398 Steuberg v. Liennemann (Mont.) 150, 422, 423 Stephens v. Elver (Wis.) 567 Stetson & Post M. Co. v. McDonald ( Wash.) . .362, 369, 565, 588, 649, 689 Stetson & Post M. Co. v. Pacific A. Co. (Wash.) 425, 476 Stetson-Post M. Co. v. Brown (Wash.) 420, 423, 431, 459, 533 Stevenson v. Eedward (Cal.) 737 Stevenson v. Woodward (Cal.) . . 140, 149, 152, 403, 425, 674, 704, 796 Steward v. Hinkel (Cal.) 690 Steward v. Koteltas (N. Y.) 268 Stidger v. McPhee (Colo.) 37*6, 682, 702, 703 Stillman v. Wickham (Iowa) 566 Stilwell V. Eailroad Co. (Mo.) Ill Stimson v. Dunham, C, H. Co. (Cal.). .67, 191, 246, 488, 489, 491, 492, 502, 504, 590, 592, 772, 806 Stimson M. Co. v. Braun (Cal.) ..28, 33, 37, 38, 39, 47, 161, 216, 218, 244, 245, 249, 409, 498 Stimson M. Co. v. Los Angeles T. Co. (Cal.)'. . .83, 87, 88, 90, 230, 282, 283, 284, 738 TABLE OF CASES. XCl Pages Stimson M. Co. v. Nolan (Cal.) 7, 13, 32, 33, 37, 38, 51, 212, 215, 226, 250, 251, 288, 395, 465, 771 Stimson M. Co. v. Kiley (Cal.) 26, 27, 114, 163, 176, 209, 210, 213, 214, 274, 306, 307, 365, 493, 545, 554, 555, 563, 665, 699, 773, 798 Stinson v. Hardy (Oreg.) 420, 423, 440 St. Kevin M. Co. v. Isaacs (Colo.) 757, 799 Stonewall Jackson L. & B. Assoc, v. McGriider (Ga.) 31 Stovell V. Neal (Cal.) (599, 700 Stowell V. Simmons (Cal.) 5 Stowell V. Waddinghaui (Cal.) 152, 434, 592 St. Paul & T. L. Co. V. Bolton (Wash.) 421, 424, 430, 431, 458 Strandell v. Moran (Wash.) 502 Straus V. Finane (N. M.) 585, 764 Stringham v. Davis (Wash.) 105, 114, 162, 572, 573, 647 Stuart V. Broome (Tex.) 398 Sullivan v. California E. Co. (Cal.) 163, 228, 254, 470, 599, 689 Sullivan v. Grass Valley Q. M. & M. Co. (Cal.) 173, 258, 630 Sullivan v. Susong (S. C.) 188 Sullivan v. Treen (Wash.) 300, 359, 362, 369 Summerton v. Hanson (Cal.) 233, 256, 553, 554 Swanger v. Mayberry (Cal.) 109 Sweatt V. Hunt (Wash.) 66, 173, 177, 803 Sweeney v. ^tna I. Co. (Wash.) Ill, 534 Sweeney v. Meyer (Cal.).. 191, 519, 520, 521, 572, 635, 689, 773, 776 Sweeney v. Pacific C. E. Co. (Wash.) 688 Swinnerton v. Argonaut L. & D. Co. (Cal.) 753 T Tabor v. Armstrong (Colo.) 247, 516, 788 Tabor-Pierce L. Co. v. International T. Co. (Colo.) 43, 83, 377, 701 Tacoma L. & Mfg. Co. v. Kennedy (Wash.) ..305, 311, 314, 336, 343, 347 Tacoma L. & Mfg. Co. v. Wolff (Wash.).. 16, 335, 336, 343, 608, 650, 759, 786 Tally V. Ganahl (Cal.) ' 556, 508, 604, 784 Tally V. Parsons (Cal.) 188, 550, 558, 568, 604, 621, 784 Tapia v. Demartini (Cal.) 457, 459, 549 Tatum V. Cherry (Oreg.) 2, 7, 61, 156, 234, 451 Taylor v. Hill (Cal.) 40 Taylor v. Jeter (Mo.) 566 Taylor v. Netherwood (Va.) 505 Taylor v. Keynolds (Cal.) 737 Teahen v. Nelson (Utah). 52, 72, 73, 221, 263, 411, 451, 458, 515, 624 Tehama County v. Bryan (Cal.) 708 Terry v. Superior Court (Cal.) 790 Texas, S. F. & N. E. Co. v. Orman (N. M.) 750 The James H. Prentice (Fed.) 738 Xeil TABLE OF CASES. Pages The Victorian (Oreg.) 787 Thomas v. Barnes (Mass.) 164 Thomas v. Eock Island G. & S. M. Co. (Cal.) 485 Thomason v. Eichards (Cal.) 683, 695 Thompson, In re (Wash.) 108 Thompson v. Bradbury (Idaho) 183 Thompson v. Coflfman (Orcg.) 196, 270, 555, 565 Thompson v. Sken (Utah) 658 Thompson v. Wise Boy M. & M. Co. (Idaho) 48, 116, 123, 125, 145, 149, 399, 771 Thorne v. Hammond (Cal.) 750 Thurman v. Kyle (Ga.) 84 Tibbetts v. Moore (Cal.) 87, 88, 311, 315, 331, 332, 347, 354, 358, 453, 645, 717, 730, 765 Title G. & T. Co. V. Wrenn (Oreg.). .40, 48, 84, 170, 316, 421, 433, 434, 456, 534, 539, 573, 580, 586, 594, 609, 628, 664, 667, 679, 730, 772, 773, 774 Todd V, Board of Education (Cal.) 155, 593 Todd V. Franzvog (Wash.) 562 Tompkins v. Sprout (Cal.) 641 Towle V. Sweeney (Cal.) 219, 554, 594, 745, 748 Townley v. Adams (Cal.) 732 Townsend v. Wild (Colo.) 45, 47 Tracy v. Craig (Cal.) 671 Tredinnick v. Eed Cloud C. M. Co. (Cal.).. 24, 147, 305, 306, 346, 348, 354, 356, 359, 399, 409, 462 Trinity Parish v. iEtna I. Co. (Wash.) 557, 560, 561 Tritch V. Norton (Colo.) 416, 418, 429, 450, 451, 457 Truckee Lodge v. Wood (Nev.) 194, 564, 567 Trullinger v. Kof oed (Oreg.) 197, 575 Trumpler v. Bemerly (Cal.) 498 Trustees v. Heise {Md ) ! 753 Tucker v. Parks (Colo.) 671 Tunis V. Lakeport A. P. Assoc. (Cal.) 396 Turner v. Bellingham Bay L. & Mfg. Co. (Wash.) . .320, 605, 610, 779 Turner v. Eobbins (Ala.) 35 Turner v. Sawyer (U. S.) 751 Turner v. Strenzel (Cak) 410, 476, 494, 510, 516, 622 Tuttle V. Block (Cal.) 44 Tuttle V. Montford (Cal.) 7, 22, 451, 461, 508, 514, 549 U Union L. Co. v. Simon (Cal.) 7, 24, 25, 27, 48, 29/, 304, 347, 348, 349, 351, 354, 396, 491, 646, 673, 700, 703, 727, 740, 770 Union Pac. E. Co. v. Davidson (Colo.) 524, 608, 609, 751 Union S. M. Works v. Dodge (Cal.) 153, 219, 288, 553, 554. 570, 705, 741 Union W. Co. v. Murphy's Flat F. Co (Cal.) 458 TABLE OP CASES. XClll Pages United M. Co. v. Hatcher (Fed.) 43, 423 United States v. Freel (Fed.) 567 United States v. Kempland (Fed.) 91 United States v. McCann (Oreg.) 604, 695 United States v. Mclntyre (Colo.) 556 United States v. United Verde C. Co. (Ariz.) 122 United States Inv. Co. v. Plielps & Bigelow W. Co. (Kan.) 84 United States Sav. L. & B. Co. v. Jones (Wash.) 16, 294, 295, 298, 307, 312, 314, 333, 336, 338, 343, 716 Updegraff v. Lesem (Colo.) 149 Utah C. Co. V. Montana P. & P. Co. (Fed.) 671 Utah L. Co. V. James (Utah) 64, 69, 85, 157, 162, 167, 272, 284 V Valley L. Co. v. Struck (Cal.) 185, 187, 189, 210, 211, 221, 263, 275, 480, 496, 506, 507, 509, 511, 513, 514, 516, 519, 520, 572, 727, 790, 792 Valley L. Co. v. Wright (Cal.) 15, 25, 457, 549 Van Clief v. Van Vechten (N. Y.) 247 Vanderhoof v. Shell (Oreg.) 187, 193, 197, 199, 284, 291, 475, 621, 683, 693, 811, 814 Van Hook v. Burns (Wash.) 183, 799 Van Home v. Watrous (Wash.) 183 Vantilburgh v. Black (Mont.) 765, 778 Van Winkle v. Stow (Cal.).. 19, 493, 586, 594, 598, 599, 730, 751, 760 Vassault v. Austin (Cal.) 658 Venard v. Green (Utah) 7, 750, 779 Venard v. Old Hickory Min. Co. (Utah) 750, 779 Vendome T. B. Co. v. Schettler (Wash.) 143 Verzan v. McGregor (Cal.) 163 Victorian, The (Oreg.) 787 Vincent v. Snoqualmie Mill Co. (Wash.) 100, 319, 603 Volker-Scowcroft L. Co. v. Vance (Utah) 46, 426 W Wagner v. Hansen (Cal.)... 93, 298, 305, 307, 309, 312, 313, 333, 342, 353, 361, 654, 712, 714, 720, 735 Wagner v. St. Peter's Hospital (Mont.) 18, 77, 159, 469, 478. 493, 573, 604, 608, 657, 680 Wakefield v. Van Corn (Neb.) 609 Walker v. Buffandeau (Cal.) 658 Walker v. Hauss-Hijo (Cal.) 21, 376, 447, 609 Walling V. Warren (Colo.) 175, 618, 704 Walsh V. McMenomy (Cal.) 24.5, 409, 425, 427, 483, 495, 496 Walter C. Hadley Co. v. Cummings (Ariz.) 58, 533 Wangenheim v. Graham (Cal.) 261 Ward V. Crane (Cal.) 20, 93, 121, 122, 283. 309, 344, 384, 395. 396, 635, 716, 721, 793, 795 Xeiv TABLE OP CASES. Pages Warren v. Ferguson (Cal.) 685 Warren v. Hopkins (Gal.) . .9r), 129, 130, 296, 359, 393, 402, 457, 794 Warren v. Quade (Wash.) 305, 314, 331, 333, 339, 347, 355, 759 Washburn v. Kahler (Cal.) 191, 684, 685, 741, 797 Washington B. Co. v. Land & E. Imp. Co. (Wash.). .187, 188, 189, 266, 273, 275. 377, 684 Washington B. L. & Mfg. Co. v. Adler (Wash.) 799 Washington I. W. Co. v. Jensen (Wash.) 586 Washington M. Co. v. Craig (Wash.) 336 Washington R. P. Co. v. Johnson (Wash.) 298, 320, 341, 731, 797 Washington S. I. Co. v. Flynn (Wash.) 551, 561 Watson v.- Noonday M. Co. (Orcg.) . . .138, 139, 140, 145, 21.5, 399, 408, 409, 411. 492, 496, .529, 623 Watson V. Sutro (Cal.) 775 Watts V. Gallagher (Cal.) 610, 751 Way V. Oglesby (Cal.) 658 Weatherly v. Van Wyck (Cal.) 83, 87 Webb V. Kuns (Car.) 709. 713, 718, 723 Weber v. McCleverty (Cal.) 442. 458 Wehrung v. Denham (Oreg.) 170, 565 Weill V. Crittenden (Cal.) 65S, 659 Weimer v. Smith (Utah) 650 Weiner v. Eumble (Colo.) 597 Weinreich v. Weinreich (Mo.) Ill Weir V. Mead (Cal.) 554, 555 Weithoff V. Murray (Cal.) 59, 376, 380, 614, 635, 761 Welch V. Allington (Cal.) 576 Welch V. Mayer (Colo.) 485 Welch V. Porter (Ala.) 458 Weldon v. Superior Court (Cal.).. 19, 506, 507, 523, 585, 598, .599, 726, 785, 824 Wells V. Cahn (Cal.) 514, 624 West Coast L. Co. v. Apfield (Cal.) 150, 274, 318, 327, 331, 422, 434, 438, 460, 606, 672, 742, 782, 798 West Coast L. Co. v. Knapp (Cal.).. 27, 156, 163, 164, 176, 209, 214, 226, 227, 229, 232, 240, 256, 692 West Coast L. Co. v. Newkirk (Cal.) 91, 322, 323, 324, 422, 434, 629, 630, 638, 661, 672, 674, 688, 768, 776 Western I. W. v. Montana P. & P. Co. (Mont.). .26, 169, 297, 348, 350, 355, 356, 394, 396, 456, 704, 740 Western L. Co. v. Phillips (Cal.) 610, 656, 736, 757, 773, 799 Western P. Co. v. Fried (Mont.) 363. 584 Wetzel & T. R. Co. v. Tennis Bros. Co. (Fed.) 53 Whalen v. Harrison (Mont.) 163 Wheeler v. Port Blakeley M. Co. (Wash.) 312 Wheeler v. Ealph (Wash.) 300, 359, 586, 688, 725, 732. 775 Wheeler. Osgood & Co. v. Everett L. Co. (Wash.) 551, 560. 565 White V. Fresno Nat. Bank (Cal.) 229, 233, 269, 663, 795, 800 TABLE OF CASES. XCV Pages White V. Mnllins (Malio) 22, 325, 333 Whito V. San Rafael & S. Q. R. Co. (t'al.) 194 White V. Soto (Cal.) 261, 383, 595, 617, 619, 690, 727 Whiteside v. Lebcher (Mont.) 22, 348, 506 Whiteside v. School Dist. (Mont.) 154 Whitley, Ex parte (Cal.) 3 07 Whitney v. Higgins (Cal.) 4, ]5, 573, 586, 609, 611, 751 Whittier v. Blakely (Oreg.) 293, 315, 481, 491 Whittier v. Fuller (Cal.) 667 Whittier v. Hollister (Cal.) 51G, 624 Whittier v. Puget Sound L. T. & B. Co. (Wash.) 84. 530 Whittier v. Stetson & P. M. Co. (Wash.) .. .88, 298, 349, 351, 352, 355, 357, 579 Whittier v. Wilbur (Cal.) 38, 70, 71, 198, 411, 477, 495, 574 Wiekersham v. Crittenden (Cal.) 159 Wiethoff V. Murray (Cal.) 106 Wiggins V. Bridge (Cal.) 411, 483, 510. 514, 622 Wilbur V. Lynde (Cal.) 159 Wilcox V. Keith (Oreg.) 160, 615, 630 Wilkin V. Ellenburgh W. Co. (Wash.) 173 Wilkins v. Abell (Colo.) 23, 160, 420, 422, 468, 533, 615, 630 Willamette Falls Co. v. Perrin (Oreg.) 594 Willamette Falls Co. v. Riley (Oreg.). 451, 463, 600, 631, 753, 754, 782 Willamette Falls Co. v. Smith (Oreg.) 634 Willamette Falls T. & M. Co. v. Remick (Oreg.) .. .110, 119, 131, 300, 403, 406 Willamette Falls T. & M. Co. v. Riley (Oreg.)) 41, 43, 44, 395 Willamette S. M. Co. v. Kremer (Cal.) 229, 242, 250, 273. 274, 350, 351, 353, 355, 390, 396, 403, 644, 645, 646, 673, 685, 703, 713, 727, 763, 765, 766 Willamette S. M. L. & Mfg. Co. v. Los Angeles (College Co. (Cal.). . 112, 163, 164, 215, 229, 230, 232, 233, 235, 236, 238, 240, 246, 250, 251, 252, 253, 255, 256, 265, 273, 274, 280, 281, 282, 285, 287, 288, 876, 377, 384, 388, 390, 409, 481, 482, 499, 663, 685, 686, 703, 704, 707, 726, 728, 744, 752 Willamette S. M. L. & Mfg. Co. v. McLeod (Oreg.) 310, 321, 324, 325, 331, 583 Willamette S. M. L. & Mfg. Co. v. Shea (Oreg.) 16, 25, 300, 301, 360, 402, 406 Williams v. Bradford (N. ,].) 89 Williams v. Eldora-Enterprise M. Co. (Colo.) 422 Williams v. Gaston (Cal.) 776 Williams v. Hawley (Cal.) 123, 127, 436, 533, 677, 680, 733, 795 Williams v. Mountaineer G. M. Co. (Cal.).. 8, 94, 96, 97, 116, 125, 126, 138, 139, 140, 142, 143, 146, 279, 358, 391, 408, 409, 451, 462, 586 Williams v. Rowell (Cal.) 148, 599 XCVl TABLE OF CASES. Pages Williams v. Santa Clara M. Assoc. (Cal.) 52, 93, 94, 96, 120, 125J 145, 146, 433, 437, 440, 442, 447, 457 Williams T. Toledo C. Co. (Orcg.) . . .114, 122, 123, 145, 303, 306, 345, 580 Williams v. Uncompahgre C. Co. (Colo.) 4, 23, 205, 457, 532, 585 Wilson V. Barnard (Cal.) 235, 333, 409, 411, 495, 624 Wilson V. Donaldson (Cal.) 447 Wilson V. Hind (Cal.) 74, 80, 83, 715, 716 Wilson V. Nugent (Cal.)... 83, 87, 91, 93, 132, 212, 333, 334, 488, 492, 664, 681, 711, 714, 715 Wilson V. Samuels (Cal.) 478, 488, 489, 509, 581, 582 Wimberly v. Mayberry (Ala.) 35 Windham v. Independent Tel. Co. (Wash.). Ill, 188, 189, 275, 282, 803 Winrod v. Wolters (Cal.) 16 Wisconsin E. P. B. Co. v. Hood (Minn.) 247 Wolfley V. Hughes (Ariz.) 316, 368, 700, 714 Wollenberg v. Sykes (Oreg.) 534, 555 Wood V. Oakland & B. E. T. Co. (Cal.). . .240, 493, 606, 607, 620, 637, 650, 652, 762, 798 Wood V. Wrede (Cal.) 22, 305, 307, 308, 329 Woodbury v. Grimes (Colo.) 41, 42 Worden v. Bear Valley Irr. Co. (Cal.) 34 Worden v. Hammond (Cal.) 163, 228, 417, 423, 585, 586, 642, 691 Wortman v. Kleiuschmidt (Mont.) 48, 194, 767, 771, 774 Wortman v. Montana C. E. Co. (Mont.) . .165, 172, 177, 181, 183, 184, 269, 270, 731, 807 W. P. Fuller & Co. v. Eyan (Wash.) 88 W. W. Montague & Co. v. Turness (Cal.) 47, 218 Wright V. Cowie (Wash.) 319, 403, 610 Wright V. Levy (Cal.) 518, 543 Wyckoff V. Meyers (N. Y.) 268 Wyman V. Hooker (Cal.) 111, 187, 195, 282, 470, 471, 540, 621, 651, 683, 694 Wyman v. Quayle (Wyo.) 6, 24, 297, 298, 322, 323, 492, 628 Y Yancy v. Morton (Cal.) 26, 164, 209, 213, 214, 225, 233, 237, 606, 607, 626, 627, 628, 694, 698, 799, 801 Yerrick v. Higgins (Mont.) 26, 306 Young V. Borzone (Wash.).. 39, 117, 129, 168, 258, 31*0, 328, 475, 725, 791, 824 Young V. Gaut (Ark.) 187 Young V. Howell (Wash.) 347 Z Zindorf Cons. Co. v. Western A. Co. (Wash.) 183 PAET I. SUBSTANTIVE LAW, OR PRIMARY RIGHTS. CHAPTER I. HISTORY, SPIRIT, NATURE, AND CONSTRUCTION OF THE LAW. § 1. Introductory. § 2. General divisions of subject. California statute distin- guished. § 3. Questions raised in the decisions. § 4. Historical. § 5. Evolution of California mechanic's-lien law. § 6. Spirit of the law. § 7. Theory of the mechanic's-lien law. § 8. A favored lien. § 9. General nature of the lien. Plan of discussion. § 10. I. General classification of liens of this character. § 11. Another classification. § 12. The classification adopted herein. § 13. Same. Contractual relation between owner and original contractor, § 14. Same. Valid and void contract. Effect. § 15. Same. The object or thing to which the lien attaches. § 16. Same. Lien on structure separate from land. § 17. Same. Lien on the fund. § 18. II. The kinship between statutes of the various states. § 19. III. The general peculiarities of mechanics' liens. § 20. Relation of lien to the debt. § 21. Mechanic's lien and mortgage compared. § 22. Nature of action to foreclose lien. § 23. Nature and scope of right conferred. § 24. Construction of mechanic's-lien statutes. Scope of discus- sion. § 25. Same. Confusion in the authorities. § 26. Same. Penal provisions. § 27. Same. Resume. § 1. Introductory. There is, perhaps, no other subject in the wide domain of the law which requires more careful Mech. Liens — 1 (1) § ] MECHANICS' LIENS. 2 study of statutes and decisions of one's own state than that of mechanics' liens. Mr. Stimson ^ says : " There is no sub- ject in the statute-book upon which there is more general and frequent amendment and revision than this. Since the original edition of this work, nearly half of the states in the Union have either patched up their old statutes [relating to and regulating mechanics' liens] or adopted entirely new ones, all of which are complex, elaborate, and far from clear. It seems hardly worth while to occupy much space with a detailed statement of these changes, which, after all, concern a subject of merely local importance." - And that diligent investigator was compelled to admit the practical difficulty of bringing order out of this statutory chaos. It it obvious that, under such circumstances, the decisions of other states, rendered upon a view of the entire statute on this subject, and not upon that of a segregated portion, will in many cases throw but little light upon the problem. Indeed, the practising attorney will, by reason of the many changes in the statute, often find it difficult to reconcile the apparently conflicting decisions, and ascertain the exact condition of the expressed law in his own state. The supreme court of California, adverting to this difficulty, has said : " It must be remembered that the mechanic's-lien laAv of this state has been changed at nearly every session of the legislature since the first statute on the subject was passed, and. that many former decisions of this court in relation to it rested upon provisions not now in exist- ence." ^ The only safe course for the practitioner to follow is to read and weigh each decision in connection with the letter of the statute in force at the time the particular decision was rendered. > American Statute Law, 1st Suppl., p. 30. == For an admirable iUustration of the technicality of the subject, see Palmer v. Lavigne, 104 Cal. 30, 31, 37 Pac. Rep. 775. AVa!4hiugton. Marks v. Pence, 31 Wash. 426, 71 Pac. Rep. 1096; Peterson v. Dillon, 27 Wash. 78, 67 Pac. Rep. 397; McHugh v. Slack, 11 Wash. 370, 372, 39 Pac. Rep. 674; United States Sav. L. & B. Co. v. Jones, 9 Wash. 434, 441, 37 Pac. Rep. 666; Johnston v, Harrington, 5 Wash. 73, 80, 31 Pac. Rep. 316. See dissenting opinion, Tacoma L. & Mfg. Co. V. Wolff, 7 Wash. 478. 35 Pac. Rep. 115, 755. " Spinney v. Griffith, 98 Cal. 149, 151, 32 Pac. Rep. 974; Giant Powder Co. v. San Diego F. Co., 97 Cal. 263, 32 Pac. Rep. 172; Winrod V. Wolters. 141 Cal. 399, 402, 74 Pac. Rep. 1037. A void lien cannot be converted into a valid one by consent: San Francisco P. Co. v. Fairfield, 134 Cal. 220, 224. 66 Pac. Rep. 255. Washington. See United States Sav. L. & B. Co. v. Jones, 9 Wash. 434. 441, 37 Pac. Rep. 674; Johnston v. Harrington, 5 Wash. 73, 80, 31 Pac. Rep. 316. 17 SCOPE AND CONSTRUCTION OP THE LAW. § 20 enforced.** A person, to avail himself of the statute, must comply with its terms ; *^ for, generally, the right to the lien does not, of itself, create the lien,**^ and before the claim of lien is filed the lien is inchoate ; *^ but the same rule which makes it essential that all statutory requirements be com- plied with in order to perfect the lien renders it unneces- sary to take any other step than is so required.** § 20. Relation of lien to the debt. The lien does not destroy any contractual relation or indebtedness that might otherwise arise, and the debt which would exist if there were no mechanic's lien may be enforced, like any other debt, by an action in the proper court.*^ The lien is a mere " Reese v. Bald Mountain Consol. G. Min. Co., 133 Cal. 285, 65 Pac. Rep. 578; Davis v. MacDonougli, 109 Cal. 547, 550, 42 Pac. Rep. 450. *' San Francisco Pav. Co. v. Fairfield, 134 Cal. 222, 224, 66 Pac. Rep. 255; Morris v. Wilson, 97 Cal. 644, 646, 32 Pac. Rep. 801; Corbett v. Chambers, 109 Cal. 178, 180, 41 Pac. Rep. 873; Keener v. Eagle Lake L. & I. Co., 110 Cal. 627, 631, 43 Pac. Rep. 14 (under Stats. 1891, p. 195 — on property of corporations); Kuschel v. Hunter (Cal., Sept. 14, 189^), 50 Pac. Rep. 397. See "Construction of Statute," §§24-27, post. Alaska. Russell v. Hayner. 130 Fed. Rep. 90. Colorado. Greeley S. L. & P. R. Co. v. Harris, 12 Colo. 226, 20 Pac. Rep. 764; Michael v. Reeves, 14 Colo. App. 460, 60 Pac. Rep. 577. rtah. Eccles L. Co. v. Martin (Utah), 87 Pac. Rep. 713. ^^ San Francisco Pav. Co. v. Fairfield, 134 Cal. 222, 224, 66 Pac. Rep. 255. See "Claim of Lien," § 362, post. " Provident Mut. B. & L. Assoc, v. Shaffer, 2 Cal. App. 216, 83 Pac. Rep. 274; Hughes Bros. v. Hoover, 3 Cal. App. 145, 84 Pac. Rep. 681, 683. See •' Claim," § 362, post. Colorado. Sprague Inv. Co. v. Mouat L. & I. Co., 14 Colo. App. 107, 60 Pac. Rep. 179, 182. Hawaii. Lucas v. Redward, 9 Hawn. 23, 25. Montana. See McGlauflin v. Wormser, 28 Mont. 177, 72 Pac. Rep. 428. Oregon. But, under the law relating to the liens on railroads (Laws 1889, p. 75), the lien is created by serving' the notice pre- scribed by the statute: Coleman v. Oregonian R. Co., 25 Oreg. 286, 35 Pac. Rep. 656. Utah. Elwell V. Morrow, 28 Utah 278, 78 Pac. Rep. 605. •■« Corbett v. Chambers, 109 Cal. 178, 180, 41 Pac. Rep. 873. " Kerr's Cyc. Code Civ. Proe., § 1197, and note; Brock v. Bruce, 6 Cal. 279, 280; McNeil v. Borland, 23 Cal. 144, 149; Hunt v. Darling, 26 R. I. 480, 3 Am. & Eng. Ann. Cas. 1098, 59 Atl. Rep. 398. See authorities collected in note 3 Am. & Eng. Ann. Cas. 1100. See also "Obligation of Owner," §§523 et seq., post; and "Cumula- tive Remedies," §§ 638 et seq., post. Debt und lien separated. It was held in McNeil v. Borland. 23 Cal. 144, 149, under the act of 1861 giving liens to mechanics and others, Mech. Liens — 2 § 21 MECHANICS' LIEXS. 18 incident to the debt or claim/"'" follows it, and may be enforced in the same action ; ^^ and no lieu can exist without an indebtedness due to the claimant from some person. ^- § 21. Mechanic's lien and mortgage compared. It has been said that a mechanic's lien is in the nature of a mort- gage and is a charge upon the land ; ^^ but a mechanic's lien does not closely resemble, in these respects, a mortgage, as that the debt and the lien were expressly separated, owing to the peculiar character of the procedure provided by the act, which was not an " action," but a " special case," in substantial identity with proceedings in Insolvency, so far as the presentation of claims is concerned. 5» Ritter V. Stevenson, 7 Cal. 388, 389; Duncan v. Hawn, 104 Cal. 10, 12, 37 Pac. Rep. 626. See Kerr's Cyc. Civ. Code, § 2909, and note. Montana. Missoula M. Co. v. O'Donnell, 24 Mont. 65, 60 Pac. Rep. 594, 991. Nevada. Hampton v. Truckee C. Co., 19 Fed. Rep. 1, 4 (1875). Utah. Morrison v. Willard, 17 Utah 306, 53 Pac. Rep. 832. 70 Am. St. Rep. 784. ^1 Brock V. Bruce, 5 Cal. 279, 280; McNeil v. Borland, 23 Cal. 144, 149. See " Cumulative Remedies," §§ 638 et seq., post. Colorado. Bradbury v. Butler, 1 Colo. App. 430, 29 Pac. Rep. 463. Nevada. See Skyrme v. Occidental M. & M. Co., 8 Nev. 219, 231. Utalu See Morrison v. Willard, 17 Utah 306, 53 Pac. Rep. 832, 70 Am. St. Rep. 784. 52 See Shuffleton v. Hill, 62 Cal. 483, 484, 6 West Coast Rep. 436; Davies-Henderson L. Co. v. Gottschalk, 81 Cal. 641, 647, 22 Pac. Rep. 860. Hawaii. But see Hackfeld v. Hilo R. Co., 14 Hawn. 448, 451. Montana. Missoula M. Co. v. O'Donnell, 24 Mont. 65, 60 Pac. Rep. 594, 991; Wagner v. St. Peter's Hospital, 32 Mont. 206, 79 Pac. Rep. 1054, 1055, 1056. Washington. See Peterson v. Dillon, 27 Wash. 78, 67 Pac. Rep. 397. Intention to enforce a lien need not be present at the time of fur- nishing the materials: Knudson- Jacob Co. v. Brandt (Wash.), 87 Pac. Rep. 43. '^ Ritter v. Stevenson, 7 Cal. 388, 389; Brock v. Bruce, 5 Cal. 279, 280; Curnow v. Happy Valley etc. Co., 68 Cal. 262, 264, 9 Pac. Rep. 149. See Duncan v. Hawn, 104 Cal. 10, 15, 37 Pac." Rep. 626; McNeil v. Borland, 23 Cal. 144, 149. The cases of Ritter v. Stevenson and Dun- can V. Hawn, supra, had reference more particularly to its assign- ment and the statute of frauds, rather than to its definition or char- acteristic features. Colorado. It is "equitable in purpose": Cannon v. W^illiams, 14 Colo. 21, 23 Pac. Rep. 456; Bradbury v. Butler, 1 Colo. App. 430, 29 Pac. Rep. 463. Montana. Possession not necessary: Mochon v. Sullivan. 1 Mont. 472. Nevada. Rosina v. Trowbridge, 20 Nev. 105, 112, 17 Pac. Rep. 751. See Skyrme v. Occidental M. & M. Co., 8 Nev. 231. 10 SCOPE AND CONSTRUCTION OF THE LAW. § 22 defined by the Civil Code,^^ except, perhaps, in the ease of an original contractor, whose contract, with the implied consent of the owner, has attached to it, as security, the lien which the statute affords; and even if the owner were to give a laborer or material-man a mortgage upon his prop- erty to secure him for labor done or materials furnished for such propertj^, it could not be considered a mechanic's lien within the meaning of the Code of Civil Procedure ; "^ nor would an agreement by the owner of a building to pay a present, existing indebtedness be a sufficient basis upon which to charge a mechanic's lien upon a building; nor would the assumption of a debt, nor an agreement to pay a debt, by an owner, in any case, carry or create a right to a mechanic's lien proprio vigore.^*^ § 22. Nature of action to foreclose lien. The action to foreclose the lien is of an equitable nature,^' and is also in the nature of a proceeding in rem.^^ The proceeding to reach funds in the hands of the owner, under the provisions of the code,^'' is also of an equitable nature."" IVew Mexico. See Genest v. Las Vegas Masonic B. Assoc, 11 N. M. 251, 67 Pac. Rep. 743. Utah. See bait Lake Litho. Co. v. Ibex M. & S. Co., 15 Utah 445, 49 Pac. Rep. 832. 5^ Kerr's Cyc. Civ. Code, § 2920. ^= Kerr's Cyc. Code Civ. Proc, pt. iii, tit. iv, oil. ii, SS 1183-1203a. Colorado. See Johnston v. Bennett, 6 Colo. App. 362, 40 Pac. Rep. 847. Montana. See Bonner v. Minnier, 13 Mont. 269, 34 Pac. Rep. 30, 40 Am. St. Rep. 441 (dissenting opinion). ■'« Gibson v. Wheeler, 110 Cal. 243, 245, 42 Pac. Rep. 810. Ala.>4liin{;«oii. Young V. Borzone, 26 Wash. 4, 66 Pac. Rep. 421 (lien for street-improvements, under 2 Ballinger's Ann. Codes and Stats., § 5902). 3" Santa Cruz R. P. Co. v. Lyons, 117 Cal. 212, 48 Pac. Rep. 1097, 59 Am. St. Rep. 174, 133 Cal. 114, 116, 65 Pac. Rep. 329. § 35 mechanics' liens. 40 and an attempt to authorize the creation of such a lien thereon, by virtue of a contract with a merely reputed owner to make an improvement on the street adjacent thereto, or to affect the interest of the real owner therein, is unconstitutional.^'* The principle of estoppel, equitable or statutory, as by failure to post notice of non-responsibility, when required so to do by the statute, or by holding out the reputed owner as the real owner, may, however, be invoked to prevent the real owner from questioning the acts of the reputed owner." § 35. " Impairing obligation of contracts." The legisla- tures of the states may pass laws which go to the remedy on past as well as on future contracts, provided they do not impair their obligation, as prohibited by the constitu- tion of the United States ; *^ but alteration, by law, of a remedy to such an extent as to affect materially a right vested under a prior contract is unconstitutional. Thus where an indebtedness existed at the time of filing the llntler act of 1868 (Stats. 1868, p. 589, § 4, similar to § 1192, Kerr's Cyo. Code Civ. Proc.), It was held that the legislature has the consti- tutional power to enact a law to bind the interest of the owner of the land upon which a building or improvement is erected, if, upon obtaining such knowledge, he does not give the notice of non-liability prescribed by the statute: Fuquay v. Stickney, 41 Cal. 583, 587 (in this case the owner made the contract, and, of course, had knowl- edge); Hicks V. Murray, 43 Cal. 515, 517, 521. See also Donohoe v. Trinity Consol. G. & S. Min. Co., 113 Cal. 119, 123, 45 Pac. Rep. 259; Jurgenson v. Diller, 114 Cal. 491, 492, 46 Pac. Rep. 610, 55 Am. St. Rep. 83; Lowe v. Woods, 100 Cal. 409, 412. Compare: Church v. Garrison, 75 Cal. 199, 16 Pac. Rep. 885, and Lambert v. Davis, 116 Cal. 292, 48 Pac. Rep. 123 (under the threshing- machine act (Stats. 1885, p. 109), and also Taylor v. Hill, 115 Cal. 143, 44 Pac. Rep. 336, 46 Id. 922, in reference to §§ 1206 and 1207. Kerr's Cyc, Code Civ. Proc; and compare §§ 1206 and 1207, Id., as to "reputed owner." Oregon. See Title G. & T. Co. v. Wrenn, 35 Oreg. 62, 56 Pac. Rep. 271, 76 Am. St. Rep. 454. ^ Santa Cruz R. P. Co. v. Lyons, 117 Cal. 212, 213, 48 Pac. Rep. 1097, 59 Am. St. Rep. 174 (§ 1191. Kerr's Cyc. Code Civ. Proc, held unconstitutional, so far as authorizing a merely reputed owner to create liens upon the land for street-improvements). Idaho. And so a person unlawfully in possession cannot deprive the owner of his property: Idaho Gold M. Co. v. Winchell, 6 Idaho 729, 59 Pac. Rep. 533, 96 Am. St. Rep. 290. *" See notes to §§ 28 et seq., ante. *^ Art. i, § 10, Hennins's General Laws, .p. xx. 41 CONSTITUTIONAL ASPECTS — LAW APPLICABLE. § 36 claim, it was held that, where no lien was provided for work upon a canal under the statute of 1850, the legislature could pass an act providing for such lien after the contract was entered into. The court say : " It is difficult to per- ceive how an act which gives an additional remedy to the holder of a contract can be said to impair its obligation." *- And where the materials are furnished before an amend- ment of the law shortening the time within which a claim must be filed, there is no impairment of the obligation of the contract, provided an adequate and valuable remedy be left ; such a law is not retroactive*^ § 36. Retrospective laws. The subject of retrospective laws is closely akin to that of the impairment of the obli- gation of contracts, already considered.^* The California cases cannot be said to be clear on this subject. In a recent case, however, in which the question involved was an amend- ment to the law affecting one of the elements creating the f *'■' Gordon v. South Fork C. Co., 1 McAl. 513, 10 Fed. Gas., p. 817, appealed to supreme court and affirmed on this point, but reversed as to extent of lien: South Fork C. Go. v. Gordon, 73 U. S. (6 Wall ) 561, 18 L. ed. 894. Colorado. See Woodbury v. Grimes, 1 Colo. 100, in which it was held that the repeal of an act allowing a lien was not unconstitu- tional (1864). But see Spangler v. Green, 21 Colo. 505, 42 Pac. Rep. 674, 52 Am. St. Rep. 259, in which it was held that when the rights of parties to a building contract accrued under an agreement made before the passage of amendments, whereby their contract rights were materially impaired, the law in force at the time the rights accrued, and not the amendments, must govern; Small v. Folev 8 Colo. App. 435, 449, 47 Pac. Rep. 64; Orman v. Crystal R. R. Co., 5 Colo. App. 493, 39 Pac. Rep. 434 (time within which suit must be brought may be changed). See Chicago L. Co. v. Dillon, 13 Colo. App. 196, 56 Pac. Rep. 989, 990. Nevada. See Capron v. Strout, 11 Nev. 304; Skyrme v. Occidental M. & M. Co., 8 Nev. 219; Hunter v. Savage Consol. M. Co., 4 Nev, 647; Sabin v. Connor, 21 Fed. Cas., p. 124. ^Vasllington. See Hopkins v. Jamieson-Dixon M. Co., 11 Wash. 308. 39 Pac. Rep. 815. " Kerckhoff-Cuzner M. & L. Co. v. Olmstead, 85 Cal. 80, 84. 24 Pac. Rep. 648. See Shuffleton v. Hill. 62 Cal. 483, 6 West Coast Rep. 436 (lien on logs; syllabus misleading). Oregon, See W^illamette P'alls T. & M. Co. v. Riley, 1 Greg. 183. As to retroaetlve la^ts, see § 36, post. " § 35, ante. See, generally, notes 6 Am. Dec, 730; 10 Am. Dec. 131; 10 L. R. A. 407; 12 L. R. A. 50. § 36 mechanics' liens. 42 inchoate right to tlie lien, it was held that the rights of claimants are governed by the law in force at the time the work was done and claim of lien filed. ■*'^ Where a contract was made and materials were furnished while a certain lien law was in force, but the notice of lien was not filed in the recorder's office until after a subsequent lien law went into effect, the court held that the lien was not lost, but that it must be enforced in accordance with the provisions of the later act. In the second act there was a saving clause: "Nothing contained in this act shall be deemed to apply to or affect any lien heretofore acquired." **' Until the claim was filed there was simply a right to a lien, and the lien had not yet been " acquired " (although this point was not specifically noticed in the case referred to) ; yet the court held *'^ that " after the new stat- ute went into eft'ect, all subsequent acts and proceedings « Higgins V. Carlotta G. M. Co., 148 Cal. 700, 703, 84 Pac. Rep. 758, 113 Am. St. Rep. 344. E^xtension of the statutory agency by the amending act was the question involved in above case. As to the same point, see Jones v. Kruse, 138 Cal. 613, 614, 616, 72 Pac. Rep. 146. Colorado. In order to determine whether or not a claimant is entitled to a lien, we must go back to the statute in force at the time the contract ■was entered into, and where such contract does not relate to the persons who may assert liens, or to the property against which they may be enforced under the law in force at the time of the execution of the contract, a subsequent amendment allow- ing a lien for work performed under a similar contract does not give a lien for labor done under such contract, as it is to be governed by the law in force at the time of its execution: Griffin v. Seymour, 15 Colo. App. 487, 63 Pac. Rep. 809 (continuous contract of monthly employment). « Act of April 26, 1862, § 24; Stats. 1864, p. 390. " McCrea v. Craig, 23 Cal. 522, 525, where it was said that " the lien virtually commences when the labor or materials are begun to be furnished, . . . and the lien is deemed to have accrued at the time of the commencement of the work or the beginning of furnishing the materials." See Ellison v. Jackson W. Co., 12 Cal. 542, 554. See " Priorities," §§ 486 et seq., post. Colorado. Same principle as to statement under acts of 1883 and 1889: Sayre-Newton L. Co. v. Union Bank, 6 Colo. App. 541, 550, 41 Pac. Rep. 844. Where a ilotible liability would be imposed upon the owner, see Mouat L. Co. V. Gilpin, 4 Colo. App. 534, 536, 36 Pac. Rep. 892 (1889). The act of 1864 was repealed by the act of 1867, and all existing liens were lost, unless within the clause of the latter act saving pending proceedings: Woodbury v. Grimes, 1 Colo. 100. 43 CONSTITUTIONAL ASPECTS — LAW APPLICABLE. § 36 relating to the lien or its enforcement were governed by, and must have been in accordance with, its provisions." Act of 1868 was repealed by the act of 1872, and liens under the former fell: Purmort v. Tucker L. Co., 2 Colo. 470. Uniler saving clause of act of 1893, where a right to a lien existed before the statute went into effect, it was not affected: Bitter v. Mouat L. & I. Co., 10 Colo. App. 307, 51 Pac. Rep. 519; Small v. Foley, 8 Colo. App. 435, 47 Pac. Rep. 64 (statement). Contra: Where the right had not accrued: Bitter v. Mouat L. & I. Co., supra; Orman v. Crystal R. R. Co., 5 Colo. App. 493, 39 Pac. Rep. 434; Chicago L. Co. v. Dillon, 13 Colo. App. 196, 56 Pac. Rep. 989 (1893, 3 Mills's Ann. Stats., 1st ed., § 2867). See Sprague Invest. Co. v. Mouat K & I. Co., 14 Colo. App. 107, 60 Pac. Rep. 179 (1889 and 1893). As to ri^fht to lien, nature of improvement, and use of materials, see Michael v. Reeves, 14 Colo. App. 460, 6.0 Pac. Rep. 577. One doing worlt as a subcontractor on a structure under a contract executed before the mechanic's-lien law of 1899 went into effect, should have perfected his lien under the law of 1893: Tabor Pierce L. Co. V. International T. Co., 19 Colo. App. 108, 75 Pac. Rep. 150; and see Spangler v. Green, 21 Colo. 505, 42 Pac. Rep. 674, 52 Am. St. Rep. 259. IJen on mines. Working by lessees. Where the law (Laws 1893, p. 321), after allowing a lien to all persons performing labor or fur- nishing materials in the working of a mine, provided that the statute should not be applicable to the owners of any mine " when the same shall be worked by lessee or lessees," the amendment of April 13, 1895, materially modifying that proviso, must be held to apply only to leases made after that date, since otherwise the retroactive operation would be contrary to the express inhibition of § 11, art. ii, of the constitution of Colorado: United M. Co. v. Hatcher, 79 Fed. Rep. 517, 25 C. C. A. 46, 49 U. S. App. 139. Oregon. Where the contractor entered into a contract while the act of 1851 was in force, and continued to work until after the act of 1854 was passed repealing the former without any saving clause, the latter act was regarded as a continuation of the former; the labor in question was regarded as an entirety, and the rights of the contractor determined in accordance with the law in force at the time the con- tract was made, but such rights were to be established and enforced by the law existing at the time of bringing the suit: Willamette Falls T. & M. Co. V. Riley, 1 Oreg. 183. Wliere the uiechanic's-Iien statute of 1874 was repealed by anotlier statute, which gave a similar lien, but provided that nothing contained therein should affect any lien theretofore acquired, and that the same should be enforced under the repealing act of 1885, and the labor and material were furnished while the act of 1874 was in force and at the time of the repeal and thereafter, and the persons furnishing the same would have had such lien, limited by the original contract price, or any instalment thereof to become due thereon according to the con- tract, by giving notices in writing to the employer of the nature and extent of their claims against the contractor, and such repeal and enactment of the new statute occurred before a deferred payment became due, although no notice had been given, the lien provided in the repealing act might, under its provisions, attach for the benefit of such claimants, limited by such instalment. Since the later act did not require a written notice, the lien would attach without it: Ainslie V. Kohn, 16 Oreg. 363, 19 Pac. Rep. 97. § 36 mechanics' liens. 44 And the same rule was applied with reference to the time of filing the claim of lien.** But Avhere a lien had been Xevada. A substantial re-enactment of prior laws, somewhat modi- fled, repealing the same in direct terms, tlie intention to preserve rights acquired under the old law^s and to consolidate and extend them being clear, will be considered as a continuance of such laws. The statute in existence at the time of the performance of the labor, giving a right to a lien for the same, and a right to an action to enforce it, is part of the contract, and the repeal of the statute does not affect the right to the lien or the action to enforce it: Sabin v. Connor, 21 Fed. Gas., p. 124. Utah. Similar principle to "Willamette Falls T. & M. Co. v. Riley, 1 Oreg. 183, in Garland v. Bear L. & R. W. W. Irrigation Co., 9 Utah 350, 34 Pac. Rep. 368, it being held, however, that the lien came into existence w^hen the material was furnished (acts of 1888 and 1890) ; afiirme133 of Pierce's Code, a person is entitled to a lien, though a stockholder and officer of a corporation: Cors v. Ballard I. W., 41 Wash. 390, 83 Pac. Rep. 900 (general laborer's lien on property of corporation). Corporation is a "person" entitled, under the above statute: See note 7 Am. & Eng. Ann. Cas. 430. Same. Foreign corporation entitled to a lien, same as a domestic corporation: See Wetzel & T. R. Co. v. Tennis Bros. Co., 145 Fed. Rep. 458, 7 Am. & Eng. Ann. Cas. 426. See also authorities collected in note 7 Am. & Eng. Ann. Cas. 430. Municipal corporation not cHtitled, unless specially authorized by statute: Seo note 7 Am. & Eng. Ann. Cas. 430. 45 mechanics' liens. 54 CHAPTER IV. OEIGINAL CONTRACTOES. § 45. Definition of " original contractor." § 46. Same. One test. Intermediate liens. § 47. Same. Four essential factors. § 48. Same. Two or more original contractors. § 49. First test. Privity. § 50. Same. Holder of legal title. § 51. Same. Tenant. § 52. Same. Void contract. § 53. Same. Implied original contract. § 54. Second test. Intermediate lien-holders. § 55. Same. Agency. § 56. Same. Direct contract with owner. § 57. Same. Material-man. ^ § 58. Third test. Personal liability. § 59. Fourth test. Labor contract. § 60. Distinction between " original contractor " and " material-man." § 61. General rights of original contractors. As against person who " caused " the improvement to be made. § 62. Same. As against other persons in privity with him. § 63. Same. As against other persons. § 64. General obligations of original contractors. To person causing improvement to be made. § 65. Same. To other persons. § 45. Definition of " original contractor." The California statute providing for and regulating mechanics' liens uses the expressions " contractor " ^ and " original contractor " ^ interchangeably as synonymous. These terms assume, in this statute, a highly technical meaning. Their definitions are not free from difficulties. The decisions of the courts do not attempt to define the term " original- contractor." > Kerr's Cyc. Code Civ. Proc, §§ 1183, 1184, 1193, 1201, and notes. Oklalioinn. See Ryndak v. SeaweH, 13 Okl. 737, 76 Pac. Rep. 170. » Kerr's Cyc. Code Civ. Proe., §§ 1187, 1194, and notes. • Colorado. " Principal contractor." Idaho. As to one contracting directly with owner, an original con- tractor, see dissenting opinion Pacific States S. L. & B. Co. v. Dubois, 11 Idaho 319, 83 Pac. Rep. 513, 518. 55 ORIGINAL CONTRACTORS. § 46 The courts confine themselves to pointing out the conse- quences which flow from the status of an original contractor, rather than to laying down rules by which it may be deter- mined whether a person is such a contractor; rather to declaring who is not an original contractor, than to defining who is such a contractor. § 46. Same. One test. Intermediate liens. One test laid down by the supreme court of California is : " If there could be intermediate lien-holders for work done or materials furnished," then the person contracting with the owner is an original contractor.^ This seems to mean that if the person who enters into a contract with the owner can, by his contracts with others, create such a relation between himself and them that they, by virtue of the statute, may have a lien upon the property for which they have furnished materials, or upon which they have performed labor, then such person is an " original contractor " ; but the com- petency to create " intermediate " liens is rather a result that follows from the status of " original contractor," and, at most, is only one of the essential characteristics of an " origi- nal contractor," * because a subcontractor may create " inter- mediate " liens, as will be more fully discussed hereafter.^ Material-men. It is thought, in view of the constitutional provision, that a material-man who is obligated by his con- tract to do certain work on the premises in placing the materials in situ may enable his laborers to impose liens upon the property for the work of actually affixing the materials to the realty. In the case of Roebling's Sons Co. v. Humboldt Electric Light and Power Company,*^ among others, the persons who furnished an electric " plant " and • Sparks v. Butte County G. M. Co., 55 Cal. 389, follo^vecl in La Grill V. Mallard. 90 Cal. 373, 376, 27 Pac. Rep. 294; Hinckley v. Field's B. &, C. Co., 91 Cal. 136, 140, 27 Pac. Rep. 594; Sparks v. Butte County G. M. Co., 55 Cal. 3S9, 392; Pacific Mut. L. Ins. Co. v. Fisher, 106 Cal. 224. 233, 39 Pac. Rep. 758. * As to oriKiual contract, non-statutory, see ch. xiv, post. Same, stiitiitory, see chs. xv et seq., post. ' §§ 66 et .seq., post. •112 Cal. 288, 44 Pac. Rep. S68. See §§ 66 et seq., post. §§47,48 mechanics' liens. 56 prepared the foundation for the same were held to be material-men, and not original contractors, and persons fur- nishing them with materials were held not entitled to a lien against the property. Laborers placing in situ. Yet, under these circumstances, it will, in all probability, not be held that the laborers doing the actual work of preparing the foundation or installing the " plant " would not be entitled to liens upon the prop- erty for the value of their services; although it was held that the persons furnishing the materials to such material- men were not entitled to a lien on the property for the value thereof. To hold otherwise as to such laborers would be practically to obliterate the constitutional provision and a portion of section eleven hundred and eighty-three of the Code of Civil Procedure, to the effect that the wages of laborers actually engaged in the construction of an improve- ment upon real property shall be secured by a lien thereon. § 47. Same. Four essential factors. The following is submitted as tending, in a measure, to clear up this difficult subject. Under the California statute there are four essen- tial factors necessary to establish the status of an " original contractor": 1. The person must be in privity with the owner, or person who " caused the improvement " to be made, by direct contract with him, or through his common- law agent ; " 2. He must be competent to create " inter- mediate " liens ; 3. Such liens must be dependent upon, or be capable of being marshaled under, some indebtedness for which he is personally liable to some person or persons; and 4. The contract must be substantially one for labor. These characteristics will be considered hereafter in detail.^ § 48. Same. Two or more original contractors. The chapter in the California code relating to mechanics' liens ' And not by a merely statutory agent, under § 1183, Kerr'» Cyc. Code Civ. Proo., providing that a subcontractor, etc., in 'charge of the construction, etc., shall be held to be the " agent " of the owner for the purposes of the chapter. See •' Agency," §§ 572 et seq., post. • §§ 49 et seq., post. 57 ORIGINAL CONTRACTORS. §§ 49. 50 does not contemplate that there shall be no " original con- tractor," except for the entire work of constructing a build- ing. For the purpose of constructing a building, the owner may enter into different original contracts for the different classes of work involved therein. If he should enter into a contract with one person for the construction of a building in all its parts, except the painting, and should afterwards enter into a contract with another person to do the painting of the building, each of these individuals would be an " original contractor," within the meaning of the statute, and it would be immaterial whether the contract with the latter for the painting was entered into prior to or subsequently to the completion of the work of erecting the building.® § 49. First test. Privity.^" Generally speaking, in order to confer upon laborers, material-men, and the other per- sons named in the statute, a right to a lien under an original contract, it must have all the elements essential to a valid contract at the common law. Privity is one of the essential elements to a valid contract, or to rights thereunder. If there is no privity between the contractor and the owner, or person who " caused " the improvement, it seems clear that such contractor is not an " original contractor." ^^ It is evident that the " owner " cannot contract with himself and thereby make himself an " original contractor " ; and it follows from this that the " owner," or the one holding the legal title to the real property, cannot be an " original contractor," even though he may agree with the equitable owner to erect a building upon the premises for the latter. § 50, Same. Holder of legal title. A person holding the legal title to land, who enters into a contract Avith a » Pacific Mut. L. Ins. Co. v. Fisher, 106 Cal. 224, 232, 39 Pac. Rep. 758. See La GriH v. MaUard, 90 Cal. 373, 375, 27 Pac. Rep. 294; Bianchi v. Hughes, 124 Cal. 24, 56 Pac. Rep. 610. 611. See § 16, ante. Oregon. See Beach v. Stamper, 44 Greg. 4, 74 Pac. Rep. 208, 102 Am. St. Rop. 597. >" Utah. See Rev. Stats., § 1383. " See Macomber v. Bigelow, 123 Cal. 532, 56 Pac. Rep. 449. §§ 51, 52 MECHA^acs' lienh 58 corporation to construct a factory thereon, for a considera- tion fixed upon, and agrees to convey the building after its completion, together with the land upon which it stands, to the company, is not an " original contractor," within the meaning of the mechanic's-lien law,^- but is the owner of the building.^^ § 51. Same. Tenant. "Where a tenant, with the consent of his landlord, makes a contract with a third person, whereby the latter is to raise a house upon the land, the tenant is not an " original contractor," within the meaning of the statute, but is the person who " caused " the building to be raised, and the third person is the " original con- tractor," or person who, in the sense of the statute, " con- tracted " to raise it.^* § 52. Same. Void contract. And again, wJiere the " original contract '" is void for want of record,^^ although the statute provides that under such circumstances the labor done and materials furnished shall be deemed to have been done and furnished at the personal instance of the owner, the subcontractor, who, of course, is not in actual privity with the owner, does not thereby become the " origi- nal contractor," ^^ although such subcontractor is competent " Kerr's Cyc. Coile Civ. Proo., § 1183. " Hinckley v. Field's B. & C. Co., 91 Cal. 136, 139, 27 Pac. Rep. 594. Colorado. See Bitter v. Mouat T^. & I. Co., 10 Colo. App. 307, 314 (1883), 51 Pac. Rep. 510. Idaho. See dissenting opinion, Ailshie, J., Pacific States S. L. & B. Co. V. Dubois, 11 Idaho 319, 83 Pac. Rep. 513, 518. " Johnson v. Dewey, 36 Cal. 623, 624 (1862). Arizona. See Walter C. Hadley Co. v. Cummings, 7 Ariz. 258, 64 Pac. Rep. 443. Montana. Block v. Murray, 12 Mont. 545, 31 Pac. Rep. 550 (contract of purchase requiring work on mine to be done). " See "Original Contract," §§286 et sen., post. '" Coss V. MacDonougli, 111 Cal. 662, 667, 44 Pac. Rep. 325: Davis v. MacDonough, 109 Cal. 547, 549, 42 Pac. Rep. 450. But see Kellogg v. Howes. 81 Cal. 170, 180, 22 Pac. Rep. 509 (see 11 Pac. Coast L. J. 589. 6 L. R. A. 588), where it was somewhat carelessly .stated that the claimants under a void contract became, for the purpose of their liens, "original contractors"; but by this the court evidently intended it to be understood that they wgre to be deemed to have contracted directly with the owner. 59 ORIGINAL CONTRACTORS. §§ 53-55 to create " intermediate " lien-holders ; for where the " origi- nal contract " is void, the " original contractor " ceases to be such, within the meaning of the statute,^' at least for certain purposes. § 53. Same. Implied original contract. This original con- tract may be either express or implied. Although there may be no statutory " original contract," with its peculiar inci- dents, there may still be an " original contractor " ; e. g., the original contractor may enter into an implied contract with the owner, as where he undertakes to paint a building, or decorate rooms therein, furnishing the labor and material therefor, and no express agreement is made as to his com- pensation for such labor and materials.^^ § 54. Second test. Intermediate lien-holders. The " origi- nal contractor " must be competent to create " intermedi- ate " liens. Although a person may be in privity with the owner, yet he may not be competent to create " intermedi- ate " liens. Thus a mere laborer who gives his personal ser- vices on the property, at the request of the owner, imder contract with him, and who is not in charge thereof, and who is without authority of the owner to incur indebtedness on his behalf, is not an " original contractor." ^^ § 55. Same. Agency. The original contractor, ordinarily, is at arm's-length from the owner, but sometimes a so-called contractor enters into a contract to erect a structure upon a tract of land for a percentage of the cost of construction, " Pierce v. Birkholm, 115 Cal. 657, 662, 47 Pac. Rep. 681: Davis v. MacDonough, 109 Cal. 547, 549, 42 Pac. Rep. 450. " See La Grill v. Mallard, 90 Cal. 373. 375, 27 Pac. Rep. 294; Bennett V. Davis, 113 Cal. 337, 340, 54 Am. St. Rep. 354, 45 Pac. Rep. 684. See, as bearing somewhat on this point, Baird v. Peall, 92 Cal. 235, 237, 28 Pac. Rep. 285; Pacific Mut. L. Ins. Co. v. Fisher, 106 Cal. 224, 233, 39 Pac. Rep. 758. See §§194, 202, 211, 214, 259 et seq., post. '••• See Davis v. MacDonough, 109 Cal. 547, 549, 42 Pac. Rep. 450; Sparks v. Butte County G. M. Co., 55 Cal. 389, 392. See also Weithoff V. Murray, 76 Cal. 508, 510, 18 Pac. Rep. 435. See §§ 104 et seq., post. See "Laborer," §S 109 et seq., post. Material-man is not an "original ooutraetor ": See §46, ante. §§ 56-58 mechanics' liens. 60 rendering himself, in effect, the common-law agent of the owner, instead of the statutory agent. In such event, chiim- ants dealing with him cannot be said to have " intermediate liens," but must be held to have contracted directly with the owner. -° This subject will be further considered under the head of " Agency." " § 56. Same. Direct contract with owner. A person who contracts directly with the owner may not be competent to create such " intermediate " liens, although he may be per- sonally indebted to others in the performance of his contract. Thus a mere material-man cannot create such liens in behalf of persons engaged in the mere preparation of the materials which he furnishes.-^ or in behalf of persons from whom he obtained them ; and such persons have no lien upon the property.^^ § 57. Same. Material-man. A mere material-man is not an " original contractor." not only for the reasons set forth in the sections immediately preceding, namely, on account of his inability to create intermediate lien-holders, but also particularly because his contract is not a contract for labor, under the test hereafter to be more fully discussed in this chapter.^* It is sometimes difficult to determine whether a person is an " original contractor " or a " material-man." ^^ § 58. Third test. Personal liability. The " intermedi- ate " liens must be dependent upon, or be capable of being =■» Oregon. See Cline v. SheU, 43 Oreg. 372, 73 Pac. Rep. 12. " See "Agency," §§ 572 et seq., post. '■" See "Definition," §4.5, ante. Tlie text refers to labor other than that of placing the material in situ. -* Sparks v. Butte County G. M. Co., 55 Cal. 389, 391;- Wilson v. Hind, 113 Cal. 357, 45 Pac. Rep. 695. See "Material-men," §§ 77, SI et seq., post. " Schwartz v. Knight, 74 Cal. 432, 433, 16 Pac. Rep. 235; California P. W. V. Blue Tent Const. H. G. M., 22 Pac. Rep. 391. See §§ 59 et seq., post. Idaho. The owner's material-man was held to be an original con- tractor for the purpose of filing claim of lien: Colorado I. W. v. Riekenberg, 4 Idaho 262, 38 Pac. Rep. 651. I'tah. But see Rev. Stats., § 1383. ^ See "Material-men," §§77, 81, post. 61 originaij contractors. § 59 marshaled under, some indebtedness for which the " original contractor " is personally liable to some person or persons. A person may be "competent " to create such " intermediate liens," and be in direct privity with the owner, but if he is not personally liable for the indebtedness, he still may not be an " original contractor." Thus the architect of the work upon the premises might be competent to create liens thereon and be in direct contractual relations with the owner, but, acting as the mere agent of the owner, he would not be per- sonally liable for the materials furnished or labor performed ; and it seems clear that a mere architect is not an original contractor.-® A builder, or foreman in charge of the construction, like- wise, might be hired by the owner by the day for that purpose, and be competent to create liens upon the premises by hiring men and purchasing materials as the agent of the owner, and thereby not be personally responsible for the same, and thus not be an original contractor.^^ § 59. Fourth test. Labor contract.-^ The contract must be essentially one for " construction, alteration, or repair," or for work or labor, with or without materials, and not "for materials." Stated in this form, the principle seems plain; but it is often difficult to determine when a contract is for construction or materials, depending upon the peculiar facts of each case. This subject is more fully discussed under the head, " Distinction. Material-man. Original Con- tractor, and Subcontractor." 29 »• See Kerr's Cyc. Code Civ. Proc, §1183. See §§46, 54, ante. AVasliinston. See CadweU v. Brackett, 2 Wash. 321, 26 Pac. Rep. 219. ■■" In Davies-IIenderson L,. Co. v. Gottsclialk, 81 Cal, 641, 647. 22 Pac. Rep. 860, it was contended that there must be a personal liability on the part of some one to support a lien. The court said: "This may be so, though we do not so hold." There was, however, a personal lia- bility in that case. ■■« Oreson. See Tatum v. Cherry, 12 Oreg. 135, 6 Pac. Rep. 715 (1874). Di.s«bed in First Nat. Bank v. Perris Irr. Dist., 107 Cal. 55, 66, 40 Pac. Rep. 45; Jones v. Kruse, 138 Cal. 613, 618, 72 Pac. Rep. 146 (cost of cartage part of cost of material). See McClain v. Hutton, 131 Cal. 132, 137, 61 Pac. Rep. 273, 63 Id. 182, 622 (allowing lien when hauling done under employment by owner's agent); and French v. Powell, 135 Cal. 636, 644, 68 Pac. Rep. 92 (suit on statutory bond, wages of blacksmith allowed; not authority for blacksmith filing mechanic's lien on property). Compare: Adams v. Burbank, 103 Cal. 646, 37 Pac. Rep. 640 (dis- allowing claim of lien for hauling brick); Wilson v. Nugent, 125 Cal. 280, 57 Pac. Rep. 1008 (person hauling slate for roof on engagement of contractor not entitled to mechanic's lien). Blacksmith sharpening tools used in a mine allowed mechanic's lien for value of his services, on ground that the tools are a part of the mine: Malone v. Big Flat G. M. Co., 76 Cal. 578, 585, 18 Pac. Rep. 772. Boardint^-house keeper not entitled to mechanic's lien for price of board furnished men working on job: Perrault v. Shaw, 69 N. H. 180, 181, 38 Atl. Rep. 724, 76 Am. St. Rep. 161. See United States v. Kemp- land, 99 Fed. Rep. 405. Book-keeper on mine not entitled to mechanic's lien for value of his services: Rara Avis G. & S. M. Co. v. Boucher, 9 Colo. 385, 388, 12 Pac. Rep. 433. See Kerr's Cyo. Code Civ. Proe.. § 1183, note pars. 148, 149. Cook for men employed in construction of reservoir, not entitled to mechanic's lien for his services: McCormick v. Los Angeles City W. Co.. 40 Cal. 185. Cook in mine not entitled to mechanic's lien: See Kerr's Cyc. Code Civ. I'roc., §1183, note pars. 148, 149. Watchman in mine not entitled to mechanic's lien for his services: See Kerr's Cyc. Code Civ. Proc, § 1183, note pars. 148, 149. Distinguishing the case of Adams v. Burbank, 103 Cal. 646, 651, 37 Pac. Rep. 640, :is being the claim of lien of a material-man's laborer, w^ho in no event has a lien. Freight charges and cartage. The rule in the text was likewise applied to freight and cartage: See Harmon v. San Francisco & S. R. R. Co., 86 Cal. 617, 618, 25 Pac. Rep. 124. Montana. See Eccleston v. Hetting, 17 Mont. 88, 42 Pac. Rep. 105. «=' See § 60, ante. §§ 92, 93 mechanics' liens. 92 Building as material. The materials may be in a more or less crude state ; but, on the other hand, under certain cir- cumstances, even a comjjleted building may be considered to be " materials furnished." Thus where the defendant em- ployed the plaintiff to erect certain improvements upon a lot owned by the former, and, as part thereof, plaintiff was to place on the lot a small frame house, which he had previously constructed, and make certain additions thereto, and for the house plaintiff was to receive a certain sum, with all of which plaintiff' complied, it was held that although the mechanic's-lien law probably did not confer a lien for the price of a building already constructed and then sold to be put upon a lot, yet, where such building was to become part of a larger structure, under the agreement, and it was so used, it may be regarded as material furnished for that purpose.*^ § 92. Same. Nature of the work on the property for which the materials are furnished. Since the material must be actually used in the repair or improvement,** it is obvious that work or labor in which the material may be used must be performed. Under section eleven hundred and eighty- three.*^ material-men have a lien only for material furnished and used " in the construction, alteration, addition to, or repair, either in whole or in part, of any building, wharf, bridge, ditch, flume, aqueduct, well, tunnel, fence, machin- ery, railroad, wagon-road, or other structure." The words, " construction, alteration, addition to, or repair," are given different meanings in the decisions, as will be fully developed in the following sections. § 93. Same. Alteration, construction, addition to, repair. In filing a claim of lien, one must consider whether the " Selden v. Meeks, 17 Gal. 128, 132, decided under the act of April 19, 1856 (Stats. 1856, p. 203, §1), providing that "artisans, builders, mechanics, lumber merchants, and all other persons performing labor or furnishing materials for the construction or repairing of any building, wharf, or other superstructure shall have a lien," etc. Alaska. Compare: Chambers v. Harnum^ 1 Alaska 468. " See § 82, ante. " Kerr's Cyc. Code Civ. Proc, § 1183. 93 MATERIAL-MEN. § 94 contract is for the con.strnction of a buildinj^, or for the alteration, addition to. or repair of a building already con- structed, and the statement made to conform to the facts in the particular case. If claim is made for one class of work, and the contract or the proof shows another class of work, the variance is fatal to the lien, under the decisions.**^ Laborer. Material-man. A distinction is drawn between laborers and material-men in this connection. While a laborer performing labor upon any of the objects enumerated above may have a lien on the propei'ty, a material-man seems to be restricted, under the provision of this section, to the " construction, alteration, addition to, or repair " thereof.*^ If the work does not fall Avithin the definition of " con- struction, alteration, addition to, or repair '' of the objects mentioned, it is not within the purvicAV of this clause of the section of the California code, so far as the lien of a material- man is concerned.*^ § 94. Same. Extent of alteration or repair. The " altera- tion " of a building need not necessarily be as to its frame- work, or a change in its form or structure. If the alteration is such as to adapt it to other than its original uses, it is sufficient. Thus where machinery was furnished to be used, and was used, as a part of a building, to convert it « Eaton V. Malatesta, 92 Cal. 75, 76, 28 Pac. Rep. 54; Wagner v. Hansen, 103 Cal. 104, 107, 37 Pac. Rep. 195; Fernandez v. Burleson, 110 Cal. 164, 167, 42 Pac. Rep. 566, 52 Am. St. Rep. 77 (description must be sufficient"); Santa Monica L. & M. Co. v Hege, 119 Cal. 376. 380, 381, 51 Pac. Rep. 555 (variance between' pleading and proof; incorrect statement as to price). See McGinty v. Morgan. 122 Cal. 103. 105, 54 Pac. Rep. 392; Wilson v. Nugent, 125 Cal. 280, 283, 57 Pac. Rep. 1008; Morrison v. Willard, 17 Utah 306, 309, 311, 53 Pac. Rep. 832, 70 Am. St. Rep. 786, 7S7. But see Ward v. Crane, 118 Cal. 676, 677, 50 Pac. Rep. 839 (when contract was to demolish old and erect new building, some materials from old going into new building, claim for new building held sufficient). See " Labor for Which a Lien is Given," §§130 et seq., post; and "Object of Labor," §§166 ot seq., post. " Palmer v. Lavigne, 104 Cal. 30, 32, 37 Pac. Rep. 775 (a lien for labor). See Williams v. Santa Clara M. Assoc, 66 Cal. 193, 197, 5 Pac. Rep. 85, 4 West Coast Rep. 616. See "Nature of Labor," §S 130 et seq., post. ** But, as shown below, the practical application of this distinction Is very much limited by the fact that if the material is affi.xed it la sufficient for the lien. §§ 95, 96 mechanics' liens. 94 into a sugar-refinery, a lien was given, on the theory that the work was " construction " or " repair " of the building.*" § 95. Same. Fixtures. li the material becomes part of the building or affixed to it, it is a sufficient use of the material to enable the material-man to have a lien, under the statute. ^° Thus placing a pump in the basement of a water-works, which is planted in the ground, and connected with pipes so as to admit the steam and water,^^ falls Avithin the principle just enunciated. § 96. Same. In mining claims and mines. The work of " drifting in a tunnel " on a mine is not such " construction, alteration, addition to, or repair of any building or improve- ment, or in a mining claim," within the meaning of section eleven hundred and eighty-three of the Code of Civil Pro- cedure.^^ Without doing violence to the received meaning of language, a " mine," or pit sunk within a mining claim, may be called a structure. Strictly speaking, a " mining claim " cannot be constructed, altered, or repaired." 49 Donahue v. Cromartie, 21 Cal. 80, 86 (act of April 19, 1856, § 1, under which this case was decided, gave material-man a lien for materials furnished " for the construction or repairing of any building, wharf, or other superstructure"). See Goss v. Helbing, 77 Cal. 190, 191, 19 Pac. Rep. 277 (pump for water-works comes within mechanic's- lien law when). 5» Donahue v. Cromartie, 21 Cal. 80, 86; Goss v. Helbing, 77 Cal. 190, 191, 19 Pac. Rep. 277. Colorado. A furnace must be so affixed to a building as to become a fixture and part of the realty, and thus lose its character as personal property, to form the basis of a'lien: Michael v. Reeves, 14 Colo. App. 460, 60 Pac. Rep. 577 (under 3 Mills's Ann. Stats., 1st ed., § 2867). Montana. A cover for a stovepipe-flue, opening into a chimney from the interior of a building, and removable when such flue was to be used, is not a fixture, and does not enter into the construction of a building, and will not support a lien therefor: Missoula Mercantile Co. V. O'Donnell, 24 Mont. 65, 60 Pac. Rep. 594, 991. ' " Goss V. Helbing, 77 Cal. 190, 191, 19 Pac. Rep. 277. =2 Jurgensen v. Diller, 114 Cal. 491, 493, 46 Pac. Rep. 610, 55 Am. St. Rep. 83. ra Helm V. Chapman, 66 Cal. 291, 293, 5 Pac. Rep. 352, 5 West Coast Rep. 127; Williams v. Santa Clara M. Assoc, 66 Cal. 193, 197, 5 Pac. Rep. 85, 4 West Coast Rep. 616; W'illiams v. Mountaineer G. M. Co., 102 Cal. 134, 141, 34 Pac. Rep. 702, 36 Id. 388 (before amendment Of 1903). Labor and material in mine. Whether a lien is given for materials furnished for work of any kind in a mining claim, will be discussed hereafter: See §99, post. 95 MATERIAL-MEN, §§ 97-99 § 97. Same. Street-work, grading, etc. It seems ques- tionable whether a lien is given to a mere material-man under section eleven hundred and ninety-one of the Code of Civil Procedure, providing for grading, street-work, etc., in incorporated cities.^* as the statute provides that the person performing the designated work " has a lien upon said lot for the work done and materials furnished." The use of the word " and " indicates that the labor and ma- terials are in the conjunctive. § 98. Same. Nature of property for which material must be furnished.^^ Generally. The general character of the property upon which a lien for materials is given, as dis- tinguished from the nature of the work on it, upon which a lien must be based under section eleven hundred and eighty- three,^^ seems to be generally the same as that for which a laborer's lien is given. § 99. Same. Mines and mining claims. But there are several exceptions, apparently, which will be noted at this place. Section eleven hundred and eighty-three of the Code of Civil Procedure, as amended in 1903, does not seem to " As to the constitutionality of tliis section, see § 34, ante. This section of the code seems to require that the person furnishing the materials must also perform work, in order to obtain a lien; and probably such work does not fall within the provisions of the general section (Kerr's Cye. Co«le Civ. Proc, § 11S3) giving a lien to material- men; for the work enumerated in § 1191, Kerr's Cyc. Code Civ. Proc, does not seem to be work done in the " construction, alteration, addi- tion to, or repair " of the objects mentioned in § 1183, Kerr's Cyc. Coile Civ. Proc, unless, perhPvps, " sidewalks, areas, vaults, cellars, rooms under a sidewalk, or improvements in connection therewith " may be considered as coming within the expression " other structure," as used in § 1183, Kerr's Cyc. Code Civ. Proc. The expression in § 1191, " any person who . . . otherwise improves the same," has reference to the work, and not to the character of the property, and whether the expression of the same section, " make any improvement in con- nection therewith," refers to the work or to the character of the property does not seem to have been specially dwelt upon by the court, although the tendency appears to be to refer it to the former, rather than to the latter. See Warren v. Hopkins, 110 Cal. 506, 42 Pac. Rep. 986; Davis v. MacDonough, 109 Cal. 547, 550, 42 Pac. Rep. 450. See "Nature of Property"; and see particularly work under §1191, Kerr's Cyc Code Civ. Proc, and §§ 139, 156 et seq., post. " See § 87, ante. ^ Kerr's Cyc Code Civ. Proc, § 1183. § 100 mechanics' liens. 96 give a lien for materials furnished by a mere material-man for a mining claim, or in or upon real property worked as a mine, in the following clause, except by implication : " Any person who performs labor in any mining claim or claims, or in or upon any real property worked as a mine, either in the development thereof or in working thereon by the sub- tractive process, has a lien upon the same, and the works owned and used by the owners for reducing the ores from such mining claim or claims, or real property so worked as a mine, for the work or labor done or materials furnished by each respectively." § 100. Same. Lien allowed. The court has, however, construed this section as giving a lien to a material-man for materials furnished for such " mining claim " under a pre- ceding general clause, on the theory that a " mining claim " is a " structure," and therefore falls within the category of " other structures " upon which a lien for material is given, when furnished for the " construction, alteration, addition to, or repair " thereof.^" " Silvester v. Coe Quartz M. Co., 80 Cal. 510, 512, 22 Pac. Rep. 217. This case rested upon Helm v. Chapman, 66 Cal. 291. 5 Pac. Rep. 352, which construed § 1183, Kerr's Cyc. Code Civ. Proe., as it stood before 1885, giving a lien for materials upon " any mining claim ... or other structure." The case last cited was to foreclose a laborer's lien, and decided simply that a " mine " or pit sunk within a mining claim might be called a " structure," and had particular reference to § 1185, Kerr's Cyc. Code Civ. Proc, providing for the extent of the lien on the land upon which any " building, improvement, or struc- ture " was constructed. See California Powder Works v. Blue Tent Consol. H. G. M. (Cal.), 22 Pac. Rep. 391; Hamilton v. Delhi M. Co., 118 Cal. 148, 153, 50 Pac. Rep. 378; Williams v. Mountaineer M. Co., 102 Cal. 134, 140, 34 Pac. Rep. 702, 36 Id. 388. § 1183, Kerr's Cyo. Code Civ. Proc., up to the time of its amendment in 1885. so far as this question is concerned, read: "Mechanics, material-men, artisans, architects, and laborers of every class performing labor upon or furnishing materials to be used in the construction, alteration, or repair of any mining claim, building, wharf, bridge, ditch, flume, aqueduct, tunnel, fence, machinery, railroad, wagon-road, or other structure, shall have a lien," etc., and it was under this provision that the leading case of Williams v. Santa Clara M. Assoc, 66 Cal. 193, 197, 5 Pac. Rep. 85, 4 West Coast Rep. 616, was decided. The subsequent cases followed this case, apparently without observirtg the change in the statute, and although by the amendment of 1885 the words '• min- ing claim " were stricken out from the properties enumerated in the first clause, and a separate clause providing for mining claims was inserted, as shown above, thus making a special mining-claim clause, 97 MATERIAL-MEN. § 101 § 101. General rights of material-men. The rights of material-men have their roots in the constitution of Califor- nia, and they have a constitutional mandatory lien.^^ Their general rights and remedies are in many respects similar to those of subcontractors.^® The general rules as to privity of contract apply. Thus the original contractor is not liable to the subcontractor's substantiaHy the same as it stood in 1874 and before it was modified in 1880. However, in Williams v. Mountaineer M. Co., 102 Cal. 134, 139, 34 Pac. Rep. 702, 36 Id. 388, this change was noticed, and the court said: "The use of the phrase 'other structure,' in the above extract, shows that the word ' structure ' comprehends all the prop- erties specifically enumerated, and is broad enough to include any similar thing constructed, should the enumeration prove incomplete. Following this with the language, 'and any person who,' it would seem to show that a mining claim was not included in the structures upon which liens were allowed, . . . and the proceeding provided for." See Parke and Lacy Co. v. Inter Nos O. & D. Co., 147 Cal. 490, 82 Pac. Rep. 51 (materials furnished for a well, under first clause of § 1183, Kerr's Cyo. Code Civ, Proc.). See also "Nature of Labor," §§130 et seq., post; and "Character of Property," §§ 166 et seq., post. Utah. Mill, manufactory, hoisting-works: Rev. Stats., § 1397. Wyoming. Materials for mining claim: Rev. Stats. 1899, §2869. »" Cal. Const. 1879, art. xx, § 15, Henning's General Laws, p. civ. Maferial-mnn's right to lien upon the property for which he has furnished the material is of constitutional creation, and is based upon the theory that he has an equitable right to payment for it from the owner of the building into which it has gone: Hampton v. Christen- sen, 148 Cal. 737. 84 Pac. Rep. 200; Humboldt Mill Co. v. Crisp, 146 Cal. 686, 81 Pac. Rep. 31, 106 Am. St. Rep. 75, 2 Am. & Eng. Ann.'cas. 811; Los Angeles Pressed Brick Co. v. Los Angeles P. B. & D. Co. (Cal. App., .Ian. 23, 1908), 94 Pac. Rep. 775. Furnishing material for use in building is basis for Hen under Statute: Los Angeles Pressed Brick Co. v. Los Angeles P. B. & D. Co., supra. ^^ See §§71-76, ante; "Notice to Ownor"; "Impairment of Liens"; "Alteration of Contract"; "Waiver"; "Time of Filing Claim." Per.sonal Motion against purchaser of material: See Davies-Hender- son L. Co. V. Gottschalk, 81 Cal. 641, 647, 22 Pac. Rep. 860 (against contractor). See "Cumulative Remedies," §§638 et seq., post; also "Bond," §§281 et seq., post; "Sureties," §§605 et seq., post; "Answer," §§ 738 et seq., post; " Estoppel by Knowledge of Void Contract," §§ 319 et seq., post'. Enforeement of lien independently of contraot: See Kerr'.s Cye. Code Civ. Proc. §5 11 S3. 1184, 1202, and notes; "Void Contract," §§319 et seq., post; "Conspiracy," §314, post; "Payments," §§ 2G0 et seq., post. As to abandonment by original contractor, see Kerr's Cye. Code Civ. Proe., §§ 1183, 1184, and notes; § 358, post; " Obligations of Owner " § 127, post. As to privity of eontract between contractor's material-man and owner, see Simpson v. Gamache, 134 Cal. 216, 218, 66 Pac. Rep. 222. Mech. Liens — 7 §§ 102 mechanics' ijens.- 98 material-men, in the absence of privity."'' The material-man must perform his contract, under the ireneral principles of law, unless prevented by the purchaser."^ The OAvner. who is also a member of a firm of material-men. furnishing materials for the building, seems also to have some of the rights of a material-man, as such.''- ]\Iaterial-men have a right of action upon the bond given b.y a contractor, when materials or " supplies " have been furnished and used for work on public buildings, excavating, or other mechanical work, under the act of March 27, 1897."^ Material-men under a contractor, iu all cases, have priority as to their liens over subcontractors under the same con- tractor;®* but, as heretofore shown, they stand in the same rank with the other constitutional mandatory liens."^ When materials are furnished for use in a building or im- provement, and have not actually been used, they are sub- ject to execution, attachment, or other legal process, at the instance of the material-man, only to enforce the debt for the purchase-money.^® § 102. General obligations of material-men. Generally speaking, the duties which material-men owe to the o\ATier or purchaser are the measure of their rights. Thus the duties to give notice to intercept payments, or to file a claim of lien, or to carry out their contracts, and the like, are all necessary, in order to secure and preserve the material-man's rights as against the owner, and it is therefore not necessary to repeat here what was said elsewhere.®'^ •" Kruse V. Wilson, 3 Cal. App. 91, 84 Pac. Rep. 442. " See San Pedro L. Co. v. West (Cal. App.), 86 Pac. Rep. 99,3. «= See Dunlop v. Kennedy (Cal., Aug. 31, 1893), 34 Pac. Rep. 92. "•■'• Cal. Stats. 1897, p. 201. Henning'.s General Laws, p. 1104. See " Rights of Subcontractors," §§ 70-75, ante. Hatvaii. A material-man of a subcontractor has a lien, although he has no contract with the owner, and may rely both on the lien and on the personal liability of the subcontractor: Hackfeld v. Hilo R. Co., 14 Hawn. 448, 452. 0* Kerr's Cyo. Code Civ. Proe.. § 1194, and note. See " Priorities," §§ 486 et seq., post. » See § 37, ante. •■•« Kerr's Cyo. Corte Civ. Proe., gS 690. 1196, and notes. See "Cumulative Remedies," §§638 et seq., post; "Provisional Remrdies." §§fi-l5 et seq., post. " See § S2, ante. 99 MATERIAL- MEN. § 103 § 103. Same. Knowledge of terms of original contract. Fraud. The contractor's material-man is not required to concern himself with the question as to whether or not material ordered by the contractor measures up to the requirements of the original contract. His contractual re- lations are solely with the contractor dealing with him. and he simply furnishes material as directed by the part}^ with whom he contracts. He is under no legal obligation to the owner to see to it that the contractor complies Avith his contract, and, so far as his right to a lien is concerned, is warranted in assuming that the contractor is fulfilling his contract with the owner. This is true, notwithstanding he may know that material ordered may not be in all respects as provided by the original contract on file. That contract is subject to change and modification in such matters by the parties thereto — the OAvner and original contractor — without notice to other parties; and such material-man has a right to assume that no fraud is being perpetrated by the contractor upon the owner in the use of the materials ordered ; and in the absence of fraud or conspiracy, the material-man's lien is not affected bv such knowledge. ^^ ^ Howe V. Schmidt (Cal. Sup., June 22, 1907), 90 Pac. Rep. 1056. See § 85, ante. j§ 104, 105 mechanics' liens. 100 CHAPTER VII. PEESONS PEEFORMINO LABOR. § 104. Scope of chapter. § 105. Statutory provision. § 106. Constitutiomil provision. § 107. Laborer distinguished from contractor, subcontractor, and ma- terial-man. § 108. Laborer does not create intermediate lien-holders. § 109. Personal services. § 110. Definitions. Various kinds of laborers. § 111. Nature of labor for which lien is given. § 112. General rights of laborers. Similar to those of material-men. § 113. Same. Priorities. § 114. Same. Material-man's laborers. § 115. Same. Death of employer. § 116. Same. Public work. § 117. General obligations of laborers. § 118. Same. Death of employer. § 104. Scope of chapter. The general classification of persons performing labor, without reference to the particular character of the work, and the general rights and obliga- tions,^ will be briefly considered in this chapter, leaving the development thereof to subsequent portions of the work. § 105. Statutory provision. Section eleven hundred and eighty-three of the Code of Civil Procedure enumerates: " Mechanics, . . . artisans, architects, machinists, builders, miners, and all persons and laborers of every class perform- ing labor upon or furnishing materials to be used in the construction, alteration, addition to, or repair, either in whole or in part," of the objects set forth in the section, " shall have a lien upon the property upon which they have bestowed labor or furnished materials, for the value of such labor done and materials furnished; . . . and any person ' >Vn!4liiiigton. See, generaUy, Vincent v. Snoqualmie M. Co., 7 Wash. 566, 35 Pac. Rep. 396. 101 PERSONS PERFORMING LABOR. §§ lOG-108 who performs labor in any mining claim or claims, or in or upon any real property worked as a mine, either in the development thereof or in working thereon by the subtrac- tive process, has a lien upon the same . . for the work or labor done or materials furnished by each respectively." ^ § 106. Constitutional provision. Of the persons enumer- ated in section eleven hundred and eighty-three of the Code of Civil Procedure, " mechanics, artisans, and laborers of every class " are specifically mentioned in the constitution.^ Before the adoption of the constitution of 1879, section eleven hundred and eighty-three enumerated only one gen- eral class, namely, " every person performing labor upon " the properties therein mentioned.* § 107. Laborer distinguished from contractor, subcon- tractor, and material-man. The persons enumerated in sec- tion eleven hundred and eighty-three are clearly distinguish- able from the classes heretofore treated; namely, original contractors, subcontractors, and material-men. Thus the owner's laborer, or a person directly employed by the owner to do personal, manual labor upon a building, is not an original contractor.^ § 108. Laborer does not create intermediate lien-holders. When a person, who would be classified as a " laborer," * Kerr's Cyc. Code Civ. Proc, § 1183. » Cal. Const. 1879. art. xx, § 15, Hennins'.s General I.a^vs, p. civ. See " Classification," §§ 42-44, ante, and also §§ 28, 37, ante. * In the discussion of this subject, the laborer, mechanic, etc., employed by the owner to give his personal services will be desig- nated as the "owner's laborer," "owner's mechanic," etc.; those of the original contractor, as the "original contractor's laborer," etc.: of the subcontractor, as the "subcontractor's laborer," etc.; of the material- man, as the "material-man's laborer," etc. "Person perforniiiiK' labor" is a generic expression, more exten- sive in meaning than ' laborer," but in the following discussion the word "laborer" will generally be used, as more convenient, for that phrase. = See Sparks v. Butte County G. M. Co., 55 Cal. 389, 392 (dictum). See "Original Contractor," §§45-65, ante. In IVIaloue v. Big Flat Gravel MiniuK Co., 76 Cal. 578, 585, 18 Pac. Rep. 772, the original contractor's laborers are rather loosely termed *' subcontractors." i^^ 109, 110 mechanics' liens. 102 enters into a contract whereby he may create intermediate lien-holders bj' contracts with others, to whom he is liable, he ceases to be a " laborer," and falls into one of the other classes.* § 109, Personal services. The contracts of " laborers " seem to be to labor personally, and not to furnish labor; to work, and not for work to be done.^ § 110. Definitions, Various kinds of laborers. Many of the terms mentioned above are more or less synonymous, although clear distinctions can be draAvn between some of them; the degree of skill, the character of the work, and the relation to the actual, ultimate work, being the principles of differentiation. Various definitions will be found in the note.^ • See " Original Contractor," §§ 45-65; " Subcontractor," §§ 66, 76, ante. ' See Malone v. Big Flat G. M. Co., 76 Cal. 578, 585, 18 Pac. Rep. 772. Utah, But see Rev. Stats., § 1383. " Architects will be fully treated in chapter viii, post. See Libbey V. Tidden, 192 Mass. 175, 7 Am. & Eng. Ann. Cas. 617. See also authori- ties 2 Am. & Eng. Ann. Cas. 714; 7 Am. & Eng. Ann. Cas. 617. Builder. "One who or that which builds; especially, one who fol- lows the occupation of building or who controls and directs the actual work of building": Standard Dictionary. "1. One who builds; one whose occupation is to build, as a carpenter, a shipwright, or a mason. ' In the practice of civil architecture the builder comes between the architect who designs the work and the artisan who executes it'": Webster. " One who builds, or whose occupation is that of building; specifically, one who controls or directs the work of construction in any capacity": Century Dictionary. Artisan. " One trained to manual dexterity in some mechanic art or trade; a handicraftsman; a mechanic": Webster. "One who prac- tises an industrial art; a trained workman; superior mechanic; dis- tinguished from ' artist." . . . The man who constructs anything by mere routine and rule is a mechanic. The man whose work involves thought, skill, and constructive power is an artificer. The hod-carrier is a laborer; the bricklayer is a mechanic; the master mason is an artificer. Those who operate machinery nearly self-acting are oper- atives": Standard Dictionary. Mechanic, " One who works with machines or instruments; a workman or laborer, other than agricultural; an artisan; an artificer; more specifically, one who practises any mechanic art. one skilled or employed in shaping and uniting materials, as wood,_ metal, etc., into any kind of structure, machine, or other object, requiring the use of tools, or instruments"; Webster. "One skilled in the mechanic arts or exercising a mechanical employment; one who has the art of using tools in shaping wood, metal, etc.; a handicraftsman; an artisan": Standard Dictionary. "A maker of machines or machinery; hence, any 103 PERSONS PERFORMING LABOR. § 111 § 111. Nature of labor for which lien is given. Although a person may clearly fall within the general definition of skilled worker with tools; one who has learned a trade, a workman whose occupation consists in the systematic manipulation and con- structive shaping or application of materials; an artificer, artisan, or craftsman": Century Dictionary. Arizona. Rev. Stats., § 2258. In Selden v. Meeks, 17 Cal. 128, 132, the "contractor" is called a " mechanic." Machini.st. "A constructor of machines and engines; one versed in the principles of machines": Webster. "1. One who makes or repairs macliines. or is versed in their design or construction, or in the use of metal-working tools. 2. (Rare.) One who tends a machine": Stan- dard Dictionary. " 1. A constructor of machines and engines, or one versed in the principles of machines; in a general sense, one who invents or constructs mechanical devices of any kind": Century Dictionary. .^liner. "One who mines; a digger for metals and other minerals": Webster. " 1. One who mines, in any sense; especially, one whose occujjation it is to excavate ore, coal, etc., in a mine": Standard Dic- tionary. "1. One who mines; a person engaged in digging for metals or minerals, or in forming a military or other mine": Century Dictionary. See "Nature of Labor in a Mining Claim," §§ 132, 149 et seq., post. Colorado. The laborer's knowledge of mining does not seem to affect his lien: Ontario-Colorado G. M. Co. v. Mackenzie, 19 Colo. App. lifi.S, 7 4 Pac. Rep. 791. Laborer. "One who labors in a toilsome occupation; a man who docs work that requires little skill, as distinguished from an artisan; sometimes also called laboring man": Webster. "One who performs physical or manual labor; especially, one who for hire performs any physical labor requiring little skill or training, other than regu'ar domestic service; one who gains a living by manual toil. In lien laws, ' laborer ' does not include contractors, civil engineers, or the like, nor hotel cooks": Standard Dictionary. "1. One who labors or works with body or mind, or both; specifically, one who is engaged in some toilsome physical occupation; in a more restricted sense, one who performs work which requires little skill or special training, us distinguished from a skilled workman; in the narrowest sense, such an unskilled workman engaged in labor other than that of a domestic servant, particularly in husbandry": Century Dictionary. \'ew Mexico. Definition of "laborer": Boj'le v. Mountain Key Min. Co., 9 N. M. 237, 50 Pac. Rep. 347. Per.sons performing' labor in a mining olalin, etc. These expressions are probably intended to include persons whose calling is not that of a laborer, or who do not gain their livelihood by labor, but who may nevertheless perform some labor upon a building, etc., or in a mining claim, etc. "Laborers." See note 58 Am. St. Rep. 303. " l^aliorer," " worlvnian." or "servant," who is, within the meaning of the statute relating to mechanics' liens: See notes 32 Am. Rep. 264; 18 L. R. A. 305. lOng'ineer.s are not specifically mentioned in the California statutes, and. if entitled to a lien, must come within the purview of the other persons mentioned, for instance, " laborers," or " persons performing labor." §§112 mechanics' liens. 104 any of the classes named in this chapter, still no lien may be given, under the constitution or the statute. The labor must be " in or upon " the objects enumerated in the statute. The nature of the labor and its relation to the object of the labor are important considerations in determining whether a lien has been granted by the law. Furthermore, even though the labor be of the proper nature and bear a sufficient relation to the object, it must appear that the object itself is of the nature provided. These matters will be considered in detail later." § 112. General rights of laborers. Similar to those of material-men. The rights of laborers are in many respects similar to those of material-men, likewise provided for in the constitution. The rules applying to and governing them are, however, in some particulars, different. Unlike the material-man, the laborer need not have been originally hired to do the particular work for which the lien is claimed. Of course, the laborer must do the work, for which he claims a lien, on the property sought to be charged therewith, and when he does this, the nature and object of the labor being within the statute, he has complied with the law — he has " performed labor " upon the particular premises.^" Laborer's lien on money attached: See Rauer v. Silva, 128 Cal. 42, 60 Pac. Rep. 525, and Kerr's Cyc. Code Civ. Proe.. § 1206, and note. Action for services during construction of building; breach; rea- sonable value: See Davidson v. Laughlin, 13S Cal. 320, 71 Pac. Rep. 345. » See " Nature of Labor," ch. ix, post; " Object of Labor," oh. x, post. See, generally, as to rights of employees, Kerr'.s Cyc. Civ. Code. §§ 1965-2079, and notes. "> Ah Louis V. Harwood, 140 Cal. 500, 504, 74 Pac. Rep. 41. The method by which the laborer's compensation is fixed is immaterial, whether by the day, week, or month; it could not continue longer than the work on the building or structure continued, and it should be treated like any other lien for labor or materials: Id. Employment as carpenter, at a fixed rate per day, for the erection or alteration of a building, entitles the person thus employed to a lien for his wages, even though the amount exceeds, in the aggregate, one thousand dollars; and his claim to a lien is not rendered void by reason of the fact that the employment was not under a contract in writing, duly executed and filed, for the reason that such employment was neither for a definite time, nor for a definite amount of work: Farnham v. California Safe D. & T. Co. (Cal. App., May 18, 1908), 6 Cal. App. Dec. 721, 96 Pac. Rep. 788. 105 PERSONS PERFORMING LABOR. §§ 113-118 § 113. Same. Priorities. Laborers stand upon the same footing as other constitutional mandatory lienors with regard to the priority of their liens, as heretofore shown. ^* § 114. Same. Material-man's laborers. A mere material- man's laborers, however, generally have no lien,^- and notice from such persons to the owner to stop payment to the material-man is of no avail.^' § 115. Same. Death of employer. When an employer dies, and it is necessary for the employee to continue his services to protect the employer's successor from loss, the latter must compensate the emploj^ee for such services, according to the terms of the contract.^* § 116. Same. Public v^ork. A person who performs labor for any contractor to whom is awarded a contract for the execution or performance of any building, excavating, or other mechanical work for the state, or for any county, city and county, city, town, or district, has also a remedy against the sureties on the bond specified in section one of the act of March 27, 1897.^^ § 117. General oblijations of laborers. The duties of contractors' and subcontractors' laborers, like those of their material-men, are, in general, the measure of their rights.^® § 118. Same. Death of employer. Notice of the death of the employer, as a general rule, puts an end to an em- WasIiinRton. Lien need not be referred to in the agreement, umJer 2 Ballinger's Ann. Codes and Stats., §5902 (clearing land): Stringham V. Davis. 23 Wash. 568. 63 Pac. Rep. 230. " See " Constitutional Aspects," § 37, ante. '^ Adams V. Burbank, 103 Cal. 646, 451, 37 Pac. Rep. 640. See " Definition of Material-man," § 78. ante. >» See Hinckley v. Field's B. & C. Co., 91 Cal. 136. 140, 27 Pac. Rep. 594. See " Definition of Material-man," § 78, ante. See §§ 69, 79 et seq., ante. » Kerr's Cy<'. Civ. Code, § 1998, and note. See § 118, post. •* Stats, and Amdts. 1897, p. 201, Henniimr'N GenornI I.n^vM. p. 1104. ""■ See §§ 102, 103. ante. See, generally, Kerr's Cjo. Civ. Code. §§ 1965- 2003, and notes. ^118 mechanics' liens. 106 ployment from month to month, but an employee, iinlef5s the term of his service has expired, or unless he has a right to discontinue at any time without notice, must continue his service after notice of the death or incapacity of his em- ployer, so far as is necessarj^ to protect from serious injury the, interests of the employer's successor in interest, until a reasonable time after such notice of the facts has been com- municaited to such successor; ^^ and, in the absence of special circumstances, the period from January 15th to June 30th is not a reasonable time.^^ " Kerr's Cyc. Civ. Code, §1998, and note; Weithoff v. Murray, 76 Cal. 508. See § 115. ante. 18 Weithoff V. Murray, 76 Cal. 508, 510. 107 ARCHITECTS. § 119 . CHAPTER VIII. ARCHITECTS. § 119. Architects. Their regulation. § 120. Statutory provisions. § 121. Definition of " architect." § 122. Contract of unlicensed architect. § 123. Rights of architects. § 124. Right to lien. § 125. Powers of architect. § 126. Relation between owner and architect. § 127. Same. Agent of owner. § 128. Architect as subcontractor. § 129. Obligations of architects. § 119. Architects. Their regulation. The profession of architecture has grown to be of such great public impor- tance, that its legislative control is sufficiently justified. ]\Iodern methods of construction, and considerations of public health and safety, have been the means of causing the enact- ment of laws requiring applicants for certificates to practise architecture to be examined and licensed by a state board of architecture,^ and this legislation has been held to be consti- tutional.- Municipal ordinances and building rules and regulations constitute a body of law, which, analogous to " medical juris- prudence," might properly be designated " architectural " or " structural " jurisprudence, with which architects and engineers are required by professional necessities to familiar- ize themselves. ' stats. 1901, ch. ccxii, p. 641, as amended by Stats. 1903, p. 522, Hi'nning's Geiierul Laivs, p. 51. - Kx parte McManus. 1 f, 1 Cal. 331, 33S, 90 Pac. Rep. 702. Adoption of iinrosiNoniible rules by the board of iirchiteoture does not affect t!ie validity of the act, but would merely constitute a viola- tion of its provisions: Ex parte McManus, supra. The matter is ruled by tlie principle applicable to the admission of attorneys at law to practice: Kx parte McManus, supra. See Ex parte Gerino, 143 Cal. 412, 417, 77 Pac. Hep. 166, 66 L. R. A. 249; Kx parte Whitley, 144 Cal. 167, 179. 77 Pac. Rep. 879, 1 Am. & Eng. Ann. Cas. 13; Kettles v. People, 221 111. 221, 77 N. E. Rep. 472; State v. §§120-122 mechanics' LiExs. ]08 § 120. Statutory provisions. Section eleven hundred and eighty-three of the Code of Civil Procedure provides: " Architects, . . . performing labor upon or furnishing ma- terial to be used in the construction, g,lteration, addition to, or repair " of any of the structures mentioned therein have a lien upon the property upon which they have bestowed labor or for Mdiich they have furnished material, for the value of. the same; and "every . . . architect, . . . or other person having charge of any mining, or of the construction, alteration, addition to, or repair ... of any building or other improvement, as aforesaid, , . . shall be held to be the agent of the owner for the purposes of this chapter." ^ § 121. Definition of " architect." An architect is a person skilled in the drafting of plans and specifications for the erection of buildings and other edifices, and in the execu- tion and superintendence thereof. Various other definitions of architect are given in the note.* Some of his functions are now prescribed by statute. § 122. Contract of unlicensed architect. It has been held that the contract of employment of an architect is not ren- dered illegal or void because made in advance of the issu- ance of the certificate or license to the architect, under the act to regulate the practice of architecture, approved March Knowles, 90 Md. 646, 45 Am. Rep. 877, 49 L. R. A. 695; In re Thompson, 36 Wash. 377, 78 Pac. Rep. 899, 2 Am. & Eng. Ann. Cas. 149. 3 Kerr's Cyc. Code Civ. Proc., § 1183. Washiugrton. Compare: CadweU v. Brackett, l Wash. 321, 26 P^c. Rep. 219. < Arohiteot. "1. One skilled in practical architecture; one whose profession it is to devise the plans and ornamentation of buildings or other structures and to direct their construction. 2. One who con- trives, plans, makes, or builds up something; as, the architect of one's own fortune. Once the architect and the builder were one. Now the architect may do no more than simply furnish the designs to the builder": Standard Dictionary. "A person skilled in the art of building; one who understands architecture, or makes it his occupa- tion to form plans and designs of buildings and superintends the artificers employed": Webster. "A person skilled in the art of building; one who understands architecture and wliose profession it is to form plans and designs of buildings and superintend the exe- cution of them": Century Dictionary. 109 ARCHITECTS. § 123 23, 1901, though, in order to carry out the contract, it would be necessary for the architect to obtain his certificate.^ § 123. Rights of architects. The architect has the ordi- nary remedies under his contract with the owner for breach thereof.^ Where an owner, under an entire contract, employs an architect to oversee the construction of a building, repudiates the contract in part and orders such part of the w^ork not to be done, the architect can either treat the repudiation of a part as a breach of the entire con- tract, and discontinue all work, or he can waive the breach as to all other parts of the work not included in the part repudiated, by continuing the work. By such repudiation of part, however, the architect may consider the entire con- tract broken, and he will be discharged from the perform- ance of further conditions on his part." Where there is an implied agreement to pay the architect the regular fees, there being no evidence of a custom of the profession as to the time of payment, the employer is liable only upon com- pleting the work, and in the absence of an agreement to the 5 Fitzhugh V. Ma.son, 2 Cal. App. 220, 223, 83 Pac. Rep. 282. But see San Francisco v. Buckman, 111 Cal. 25, 29, 43 Pac. Rep. 396; Flinn V. Mowry, 131 Cal. 481, 488, 63 Pac. Rep. 724; Berka v. Woodward, 125 Cal. 119, 126, 57 Pac. Rep. 777, 73 Am. St. Rep. 31, 45 L. R. A. 420; Kutchin v. Bngelbret, 129 Cal. 635, 639, 62 Pac. Rep. 214; Gardner v. Tatum, 81 Cal. 370, 22 Pac. Rep. 880; Lada v. Hawley, 57 Cal. 51; Swanger v. Mayberry, 59 Cal. 91. « Contract for drawing plans and speciftcations for public-school house: See Brown v. Board of Education, 103 Cal. 531, 535, 37 Pac. Rep. 503. Arizona. Where the architect agrees to perform services In drafting of plans and specifications and superintending the construc- tion of a building for an agreed compensation, the breach of tlie contract on the part of the owner is non-payment of such com- pensation, and not the mere refusal of the owner to permit the arclii- tect to perform the agreed services: McPherson v. Hattich (Ariz., March 30, 1906), 85 Pac. Rep. 731. ' De Prosse v. Royal Eagle Dist. Co., 135 Cal. 408, 411, 67 Pac. Rep. 502. Repudiation of part lireacli of entire contraot; option of plaintiiT to consider breach of covenant repudiates breacli of entire contract: De Prosse v. Royal Eagle Dist. Co., supra. See Haskell v. McHenry, 4 Cal. 411; Cockley v. Brucker, 54 Ohio St. 214. As to breach of contract, see Kerr's Cyc. Civ, Code, S 3294, note pars. 11, 12. See " Performance of Contract, Generally," §§ 334 et seq., post. §§ 124, 125 mechanics' liens. 110 contrary, the employer may discontinue the employment, at his option, paying the architect for services rendered and expenses incurred.^ § 124. Right to lien.'' An architect, under the statute, occupies a somewhat anomalous position. The preparation of plans and specifications and the superintendence of the construction would seem to make the architect, in a certain sense, a laborer "in" or "upon" the property; but such lien has been allowed under the express provision of the statute. ^° § 125. Powers of architect. Architects, and also engi- neers, are often made arbiters as to the quality and quantity of the Avork, under the original contract, and, although the statutory- or common-laAV agent of the owner, must act with fairness to all parties interested. They should not withhold stipulated certificates due the contractor, arbitrarily or 8 Fitzhugh V. Mason, 2 Cal. App. 220, 224, 83 Pac. Rep. 282 (evidence, damage, finding). » Ri^ht of architect to a lien: See notes 7 Ana. & Eng. Ann. Cas. 6, 17: 16 L. R. A. 600. Action by architect, form : See 6 Cyc. 46. Parties : See 6 Cyc. 46. Conditions precedent: Kerr's Cyc. Civ. Code, § 1349, note pars. 1-14; 6 Cyc. 4 7. Idaho. See Lockhart v. Rollins. 2 Idaho 540. 21 Pac. Rep. 413, 415. " In Ehlers v. Wannack, 118 Cal. 310, 50 Pac. Rep. 433, a Hen was allowed for the reasonable value of services rendered as an architect in drawing and preparing plans and specifications, but no reference was made to the labor of supervision; and in Pacific Mut. L. Ins. Co. v. Fisher, 109 Cal. 566, 42 Pac. Rep. 154, there was a claim for services of an architect in the preparation of plans and specifications and as superintendent during the progress of construction, but no question as to the architect's rights was discussed. Colorado. See " Labor for Which a Lien is Given," §§ 130 et seq., post. Xew Mexico. An architect who prepares plans and specifications for a building and superintends the construction thereof, explaining the plans to the mechanics, personally inspecting the material and work, is entitled to a lien : Johnson v. McClure, 10 N. M. 506, 62 Pac. Rep. 983, distinguishing Boyle v. Mountain Key Min. Co., 9 N. M. 237. 50 Pac. Rep. 347. Oregon. See Leick v. Beers, 28 Oreg. 483, 43 Pac. Rep. 658; Wil- lamette Falls T. & M. Co. V. Remick. 1 Oreg. 169. I'tah. § 1372, Rev. Stats., provides specially for the drawing of plans, etc. W'ashington. See Nason v. Northwestern M. & P. Co., 17 Wash. 142, 49 Pac. Rep. 235; Spalding v. Burke, 33 Wash. 679, 74 Pac. Rep. 829. HI AKCHITECTS. §^ 126-128 upon caprice/^ nor upon objections based upon their own mistakes in formulating the plans and specifications; ^- and, of course, such withholding should not be tainted with fraud. § 126. Relation between owner and architect. It has been held that the relation between the owner and his archi- tect is in no sense confidential, within the meaning of the provision of the Code of Civil Procedure. ^^ § 127. Same. Agent of owner. Under the California statute, the architect is made the agent of the owner for the purposes of the provisions relating to mechanics' liens,^* and may bind the owner by notice of the claims of the con- tractor's subclaimants, to intercept payments to such con- tractor.^^ The powers of architects and engineers as agents of the owner, and the effect of their certificates, will be more fully considered hereafter.^^ § 128. Architect as subcontractor. Where the architect is a subcontractor in the first degree, his contract with the " Wyman v. Hooker, 2 Cal. App. 36, 40, 83 Pac. Rep. 79 (hearing in supreme court denied). See AntoneHe v. Kennedy-Shaw L. Co., 140 Cal. 309. 315, 73 Pac. Rep. 966. AVaMhington. See Windham v. Independent Tel. Co., 35 Wash. 166, 76 Pac. Rep. 936. " Wyman v. Hooker, 2 Cal. App. 36, 39, 83 Pac. Rep. 79. Cunditious precedent of tlii.ii kind are to be .ttriotly coustrned against the party seeking to avail himself of them : Antonelle v. Ken- nedy-Shaw L. Co., supra. See Front Street M. & O. R. Co. v. Butler, .'lU Cal. 574, 577; Deacon v. Blodget, 111 Cal. 416, 418, 44 Pac. Rep. 159; Southern Pac. R. Co. v. Allen, 112 Cal. 455, 461, 44 Pac. Rep. 796; Weinreich v. Weinreich, 18 Mo. App. 370; Stilwell v. Railroad Co., 39 Mo. App. 226. As to conditions precedent, see Kerr's Cyc. Civ. Code, § 1439, note pars. 1-45. " See Kerr's Cye. Code Civ. Proe., S 1881, and note. " Kerr's Cyc. Code Civ. i'roc, § 11 S3. Wa.sliin^ton. The mere fact that a person is employed as an ar<-liitect does not constitute such person the general agent of his employer, his powers as agent being limited by the contract entered into between them: Sweeney v. yEtna Indemnity Co., 34 Wash. 126, 74 Pac. Rep. 1057. Ah to powers of arcliitect. see De Mattos v. Jordan, 15 Wash. 378, 385, 46 Pac. Rep. 402. '■'' Kerr's Cyo. Code Civ. l»roe., § 1184. "■ See §§ 238 et seq., §§ 579 et seq., post. § 129 mechanics' liens. 112 original contractor is not void when the owner is fully con- versant with the fact, and his mere dual position as subcon- tractor and architect does not render the contract voidj in the absence of fraud or deception.^' § 129. Obligations of architects. Where there is no agreement to the contrary, the architect is under no legal duty to keep secret the fact of a proposed improvement, or the plans thereof, and he is not liable to the owner for damages by reason of the removal of tenants from the premises upon learning of such intended changes, through the publication thereof by the architect ; nor is he liable for mistakes in the construction, arising through the fault of the owner.^^ " Orlandi v. Gray, 125 Cal. 372. 374, 58 Pac. Rep. 15. See WiUamette S. M. & M. Co. V. Los Ang-eles C. Co., 94 Cal. 229, 239, 29 Pac. Rep. 629. 1" Havens v. Donahue, 111 Cal. 297, 43 Pac. Rep. 962. AV'asliingtoii. Action for architect's services; damages: See Spalding v. Burke, 33 Wash. 679, 74 Pac. Rep. 829. 113 LABOR FOR WHICH A LIEN IS GIVEN. § 130 CHAPTER IX. LABOR FOR WHICH A LIEN IS GIVEN. § 130. Scope of chapter. § 131. Statutory provisions, generally. Structures. First clause. § 132. Same. Mines. Second clause. § 133. Same. Grading, etc. § 134. Same. Tliree grand divisions. Generally. § 135. Structures and mines. In general. § 136. Importance of fixing clause under which case falls. § 137. Same. Classes not mutually exclusive. § 138. Definition of labor " bestowed." § 139. Grading and other work under section eleven hundred and ninety-one. Generally. § 140. Classes. How discussed at this time. § 141. " Improvement," defined. Refers to object. § 142. Structures, and grading and other work, under section eleven hundred and ninety-one. § 143. Structures. Liens allowed. § 144. " Construction, alteration, addition to, or repair." § 145. Same. Importance of determination. § 146. Character of alteration. § 147. Distinction between alteration and repair. § 148. Same. Alteration. Erection. § 149. Work in mines and mining claims. Second clause. § 150. Same. Liens allowed. § 151. Same. Notice of non-responsibility. Tunnel. § 152. Same. Drifting. § 153. Same. Running tunnel. § 154. Same. Shaft. Mining instrumentalities. § 155. Same. Watchman of idle mine. § 156. Grading, etc., under section eleven hundred and ninety- one. § 157. Same. Work not enforceable under this section. § 158. Same. Meaning of " improves," " improvement." § 159. Same. Relation to work on structures. § 160. Same. Liens allowed. § 161. Labor for which lien is not given in any event. § 162. Same. Preliminary work. § 163. Same. Teaming for material-man. § 164. Same. Material-man's laborer. § 165. Same. Test, legitimate connection with work of mine. Mech. Liens — 8 §§ 130, 131 mechanics' liens. 114 § 130. Scope of chapter.^ This chapter relates particu- larly to the nature of the labor, and not to the place Avhere or object upon which it is performed. Such object may fall within the purview of the statute, and yet no lien may be given thereby, owing to the inherent nature of the work, and vice versa: IMoreover, labor of a certain nature may form the basis of a lien on one class of objects, but may not necessarily do so as to another class, which may be within the terms of the statute. Again, the same labor done for one person with reference to the same object may entitle one to a lien, but may be otherwise if done for another person. The relation between the work for which a lien is claimed and the work under the original contract is also an important consideration. A careful examination of the statute in force is required to determine not only the force .of precedents, but also to ascertain whether a lien has been conferred under the particular circumstances of the case, so far as this matter is concerned. The subject is closely inter- woven with that of the following chapter, relating to the object upon which the labor must be performed to entitle a person to a lien.^ § 131. Statutory provisions, generally. Structures. First clause. Section eleven hundred and eighty-three of the Cali- fornia Code of Civil Procedure ^ provides : " Mechanics . . . performing labor upon or furnishing materials to be used in the construction, alteration, addition to, or repair, either in whole or in part, of any building ... or other structure, shall have a lien," etc. This will be designated as the " first clause," or " structure clause." 1 As to irrigation district, see Stone v. Harris, 146 Cal. 555, 80 Pac. Rep. 711. Idaho. Nature of work : See, generally, dissenting opinion of Ailshie, .T., in Pacific States Sav., L. & B. Co. v. Dubois, 11 Idaho 319, 83 Pac. Rep. 513, 518. Oregon. Where tlie statute gives a lien for specified classes of work, all other classes are impliedly excluded : Williams v. Toledo C. Co., 25 Oreg. 426, 36 Pac. Rep. 159, 42 Am. St. Rep. 799. \Vasl»ington. For clearing land (2 Ballinger's Ann. Codes and Stats.. §5902): Stringham v. Davis, 23 Wash. 568, '63 Pac. Rep. 230. ' " Object on WMiich Labor must be Performed," §§ 166 et seq.. post. Montana: See Davis v. Alvord, 94 U. S. 545, 547, bk. 24 L. ed. 283. » Kerr's Cjc. Code Civ. Proc., § 1184. 115 LABOR FOR WHICH A LIEN IS GIVEN. §§ 132-135 § 132. Same. Mines. Second clause. Section eleven hundred and eighty-three of the California Code of Civil Procedure further provides: "And any person who per- forms labor in any mining claim or claims, or in or upon any real property worked as a mine, either in the develop- ment thereof or in working thereon by the subtractive pro- cess, has a lien upon the same," etc. This will be desig- nated as the " second clause," or " mining clause." § 133. SaiKe. Grading, etc. Section eleven hundred and ninety-one of the California Code of Civil Procedure pro- vides: "Any person who, at the request of the reputed owner of any lot in any incorporated city or town, grades, fills in, or otherwise improves the same, or the street or side- walk in front of or adjoining the same, or constructs any areas, or vaults, or cellars, or rooms, under said sidewalks,^ or makes any improvements in connection therewith, has a lien upon said lot for his work done and materials furnished." § 134. Same. Three grand divisions. Generally. Thus there appears to be three grand divisions of objects upon which the labor must be performed, under the California Code of Civil Procedure, namely: 1. Upon structures, under the first clause of section eleven hundred and eighty-three ; 2. In mining claims, or real property worked as a mine, under the second clause of section eleven hundred and eighty-three; and 3. Grading, etc., upon lots, streets, side- walks, etc., under section eleven hundred and ninety-one. § 135. Structures and mines. In general. Section eleven hundred and eighty-three of the California Code of Civil Procedure contains two distinct and separate provisions allowing distinct classes of liens. One provision, set forth in the first clause, allows a lien for work done or materials supplied in the construction of buildings or excavations on land, which are made in the nature of an improvement, to enhance its value, or to make it more useful, or vfiluable for a new use. The other provision is in the second clause, and §§ 136-138 mechanics' liens. 116 relates to and governs the lien for work done in or upon mines, which may result either in the construction of an improvement thereon, or in the partial or total destruction thereof, by the extraction of the ore which gives it value.* § 136. Importance of fixing clause under which case falls. It is important to determine under which clause of section eleven hundred and eighty-three a case falls, in order to ascertain whether a lien has been conferred, and to ascertain the owner's obligations, and whether the lien extends to the whole property, or so much thereof as is necessary for the convenient use and occupation thereof. § 137. Same. Classes not mutually exclusive. The two classes of objects, and work done thereon, contained in sec- tion eleven hundred and eighty-three, are not mutually exclusive. Any building or other structure, at least for some purposes, is transferred from the first clause to the second whenever it is an adjunct or appurtenance to a mining claim ; and if, for instance, a tract of land upon which a well is being drilled for the purpose of extracting mineral oil is a mining claim, the well, notwithstanding the inclusion of wells in the enumeration of structures upon which separate liens are allowed, is an essential part of the mining claim, and for that reason the lien of those who have made it extends to the whole claim, and would be lost if less was described in the lienor's claim of lien.^ § 138. Definition of labor " bestowed." By the use of the word " bestowed," in section eleven hundred and eighty- * Hig-g-ins V. Carlotta G. M. Co., 148 Cal. 700, 702, 84 Pac. Rep. 758, 113 Am. St. Rep. 344. Idaho. See Thompson v. Wise Boy M. & M. Co., 9 Idaho 363, 14 Pac. Rep. 958. = Berentz v. Belmont Oil M. Co., 148 Cal. 577, 581, 84 Pac. Rep. 47, 113 Am. St. Rep. 308, reversing s. c. (Cal. App.) 84 Pac. Rep. 45, and expIaiuiiiK Williams v. Moimtaineer G. M. Co., 102 Cal. 134, 34 Pac. Rep. 702, 36 Id. 388. As to an oil-well being- a mine, see Martin's mining Law, §§ 70. 176, 435. Colorado. As to the act of 1893, p. 315, § 1 (3 Mills's Ann. Stats., §2867) and §8. See. Lindemann v. Belden Consol. M. & M. Co., 16 Colo. App. 342, 65 Pac. Rep. 403. 117 LABOR FOR WHICH A LIEN IS GIVEN. §§ 139-141 three,' instead of " performed," the legislature intended that the labor of subcontractors need not be personal, and the expression " bestowed " means " used " or " placed." ^ § 139. Grading and other work under § 1191. Generally. Notwithstanding the decision of the supreme court ^ hold- ing that section eleven hundred and ninety-one of the Code of Civil Procedure ® is unconstitutional in so far as it attempts to impose a lien upon the lot for street-work at the instance of one who is merely reputed to be the owner, it has been held that the legislature intended to retain the lien, where the real owner himself makes the contract.^" § 140. Classes, how discussed at this time. For the pur- pose of discussion at this time, as a matter of convenience we may consider these various classes under two heads, namely : 1. Work under section eleven hundred and eighty- three ; and 2. Work under section eleven hundred and ninety-one. The question under which of these sections the work falls is of great importance as to the formalities of the contract and the necessity of giving notice of non-responsi- bility by the owner, and as to tlie rights and duties of the respective parties, and other particulars.^^ § 141. " Improvement," defined. Refers to object. The word " improvement," used in the expression " building or other improvement," in the first clause of section eleven hundred and eighty-three of the Code of Civil Procedure, quoted in the last preceding section, and the word " improve- • Kerr's Cyc. Code Civ. Proc, § 1183. ' Macomber v. Big-elow, 126 Cal. 9, 14, 58 Pac. Rep. 312. Washington. In Hopkins v. Jamieson-Dixon M. Co., 11 Wash. 308, 89 Pac. Rep. 815, a lien was sustained that was partly for labor fur- nished, as distinguished from labor performed : Blumauer v. Clock, 24 Wash. 596, 64 Pac. Rep. 844, 846, 85 Am. St. Rep. 966. s Santa Cruz R. P. Co. v. Lyons, 117 Cal. 212, 48 Pac. Rep. 1097, 59 Am. St. Rep. 174. See § 34, ante. » Kerr's Cyc. Code Civ. Proc, S 1191. ^0 Santa Cruz R. P. Co. v. Lyons, 133 Cal. 114, 116, 65 Pac. Rep. 329. WashinRton. Such lien given under direct contract with owner: Young V. Borzone, 26 Wash. 4, 66 Pac. Rep. 135, 138, 421. " See S§ 61 et seq., §§ 66, 77, 104, ante, and §§ 259 et seq., §§ 269 et seq., §§ 286 et sey., §§ 315 et seq., post. §§ 1-12, 1-13 mechanics' liexs. 118 ments," in section eleven hundred and eightj'-eight of the same code, referring to claims upon two or more " buildings, mining claims, or other improvements," do not mean the labor itself, or that particular class of labor for which the claimant was employed, but the objects enumerated upon which the labor has been performed/- and will be discussed hereafter/^ § 142. Structures, and grading and other work, under § 1191. Section eleven hundred and eighty-three of the Code of Civil Procedure does not, bj^ its terms, expressly relate to contracts for building sidewalks in cities, provided for by section eleven hundred and ninety-one, and the court was unwilling to construe section eleven hundred and eighty- three as applying to any contract not clearly within its letter as well as within its reason.^* And the same reasoning would seem to be equally applicable to all other work mentioned in section eleven hundred and ninety-one, except, perhaps, the " improving " of the lot, which will be discussed hereafter.^® § 143. Structures. Liens allowed. Under the first clause of section eleven hundred and eighty-three of the Code of Civil Procedure, and statutes having a similar clause, besides the common lien for construction, liens have been allowed for painting,^^ papering,^" plumbing,^^ and for moving building " Davis V. MacDonoug-h, 109 Cal. 547, 551, 42 Pac. Rep. 450. " See " Object on Which Labor must be Performed," §§ 166 et seq., post. " Kreuzberger v. Wingfield, 96 Cal. :;51, 257, 31 Pac. Rep. 109. ^ See " Object on Which Labor must be Performed," §§ 166 et seq., post. 18 To contractors: Sidlinger v. Kerkow, 82 Cal. 42, 45, 22 Pac. Rep. 932; Harlan v. Stufflebeem, 87 Cal. 508, 510. 25 Pac. Rep. 686; Baird v. Peall, 92 Cal. 235, 237, 28 Pac. Rep. 285 (for materials fur nished also); Marble L. Co. v. Lordsburg- Hotel Co., 96 Cal. 332, 338, 31 Pac. Rep. 164 (materials furnished). To subcontractors: Hagman v. 'Williams, 88 Cal. 146, 147, 25 Pac. Rep. 1111 (materials furnished); Slight v. Patton, 96 Cal. 384, 385, 31 Pac. Rep. 248 (materials furnished). See Downing v. Graves, 55 Cal. 544, 545. Oreia^on. Justice v. Elu-ert. 28 Oreg. 460, 43 Pac. Rep. 649. 1' To contractors: Sidlinger v. Kerkow, 82 Cal. 42, 45, 22 Pac. Ilep. 932 (materials furnished); La Grill v. Mallard, 90 Cal. 373, 376, 27 Pac. Rep. 294 (and for materials furnished). Montana. Marsh v. Morgan. 18 Mont. 19, 44 Pac. Rep. 85. " Mclntyre v. Trautner, 63 Cal. 429. • 119 LABOR FOR WHICH A LIEN IS GIVEN, § 143 from one place to aiiother.^" It also appears to tiavebeen assumed that a lien might be allowed for the labor_£|j:-Sixil engineer.-^ The contractor's teamster, under a void contract, Relation between gras-fitting- and plumbing: See Newell v. Brill, 2 Cal. Aijp. 61, 62, 83 Pac. Rep. 76. Montana. Gould v. Barnard, 14 Mont. 335, 36 Pac. Rep. 317. Orof^on. But connecting bar with water-pipes and sewer (the work being on mere trade-fixtures), at the instance of tenant, does not give lien upon the property: Patterson v. Gallagher, 25 Oreg. 227, 35 Pac. Rep. 454, 42 Am. St. Rep. 794. '» To contractors: Palmer v. Lavigne, 104 Cal. 30, 37 Pac. Rep. 775. See Selden v. Meeks, 17 Cal. 128, 132. Oregon. On the same lot (also raising the building), it being in furtherance of a general plan for the alteration and repair of tho building: Allen v. Elwert, 29 Oreg. 428, 44 Pac. Rep. 823, 48 Pac. Rep. 54 (under Hill's Code, §3669). Foreman of laborer.s moving house not allowed a lien: Allen v. Elwert. 29 Oreg. 428. 44 Pac. Rep. 823, 48 Pac. Rep. 54. Overseer who performed manual labor allowed a lien: Willamette Falls Co. V. Remick, 1 Oreg. 169 (1851); and it was intimated tliat sucli lien would be allowed, even if no such labor had been performed: Allen V. Elwert, supra. ="> Green v. Jackson W. Co., 10 Cal. 374. The lien was not granted in this case, however, because suit was not begun in time, under act of 1855, § 1, which differed from the present statute, among other things, in that the labor was required to be performed "for" the con- struction or repairing ot any building, etc.; whereas, at present, the labor must be "upon" the building: See Palmer v. Lavigne, 104 Cal. 30, 37 Pac. Rep. 775. Colorado. A superintendent of construction employed by a con- tractor is entitled to a lien, under Mills's Ann. Stats., Rev. Sup., p. 769, for superintending the work of construction, with power to direct the work, but is not entitled to a lien for " going to different places, and running around, punching up people who had contracted to fur- nish material," as it was not superintending the work of construc- tion, or otherwise within the classes of services enumerated in the statute : Pitschke v. Pope, 20 Colo. App. 328, 78 Pac. Rep. 1077. Montana. Managing agent of a railroad company, who had variou.' posiLions or duties in carrying on and conducting the business, includ- ing those of managing, conducting, and operating a railroad, in doing which the person ran as conductor, worked on the railroad track, helped around the round-house, and was a " general utility man," was held entitled to a lien for liis services: Gilchrist v. Helena H. S. & S. R. Co., 58 Fed. Rep. 708, 716, following Flagstaff S. M. Co. V. Cullins. 104 U. S. 176, bk. 26 L. ed. 704. General agent, manager, and superintendent of a corporation at fixed monthly salary, in the erection of buildings and working a mine, but who performs no manual labor upon the buildings or in the mines, is not entitled to a mechanic's lien for the value of his ser- vices: Smallhouse v. Kentucky & M. G. & S. M. Co., 2 Mont. Ter. 443, distinguished in Flagstaff S. M. Co. v. Cullins, 104 U. S. 176, bk. 26 L. ed. 704. General manager of trains in the running, who at times acted as conductor of the cars, fired the engines and run them, helped to clean the engines and to repair the track, in short, took a hand in any capacity in wliicli his services migiit be needed, was held entitled to a lien for his services: Gilchrist v. Helena H. S. & S. R. Co., supra. § 144 mechanics' liens. 120 was allowed a lien for hauling material to be used in the con- struction of a building.^^ § 144. " Construction, alteration, addition to, or repair." ^^ It seems that the labor, as distinguished from the material furnished, need not be for the "construction, alteration, addi- tion to, or repair " of the building or " structures " enumer- ated in the first clause of section eleven hundred and eighty- three of the Code of Civil Procedure. It is sufficient if the labor be done upon any of these objects, or in a mining claim or claims, or in or upon any real property worked as a mine, whether technically coming within the definition of " construction, alteration, addition to, or repair," or not. Manifestly, the preposition " upon," in the first clause of section eleven hundred and eighty-three, refers to and has for its object the noun " building." ^^ New Mexico. " Bodily toil in the form of manual labor upon the thing being constructed is not in all cases necessary to entitle one to a lien " : Johnson v. McClure, 10 N. M. 506, 62 Pac. Rep. 983. Dra^ving plans and specifications by architect, and superintending construction: See "Architects," §§119-129, ante; also 7 Am. & Eng. Ann. Cas. 617. A general manager of a mining company, who attended to all its business of every kind, including mines, mill, boarding-house, ore- hauling, etc., and had nothing to do with the actual mining in the mine, except in the most general and indirect manner, having fore- men under his direction, wlio superintended the men doing the actual mining, is not entitled to a lien, under a statute giving a lien to one "who performs labor in any mining claim" : Boyle v. Mountain Key M. Co., 9 N. M. 237, 50 Pac. Rep. 347; Johnson v. McClure, 10 N. M. 506, 62 Pac. Rep. 983. Utali. Overseer and foreman of a gang of men working on a mine, who also performs manual labor on the mine, is entitled to a lien for his services, under the Utah statute: Flagstaff S. M. Co. v. Cullins, 104 U. S. 176, bk. 26 L. ed. 704. 25 McClain v. Hutton, 131 Cal. 132, 138, 63 Pac. Rep. 182, 623, 61 Id. 273. See also § 46, ante. - Kerr's Cyc. Code Civ, Proc, § 1183. =» Palmer v. Lavigne, 104 Cal. 30, 31, 37 Pac. Rep. 775. See Williams V. Santa Clara M. Assoc, 66 Cal. 193, 197, 5 Pac. Rep. 85, 4 West Coast Rep. 616. In Palmer v. LaTlgne, supra, it was said, in arguendo, that the " labor for which the lien is given must be performed in the ' con- struction, alteration, addition to, or repair ' of these objects, or one of them." The question was not involved, however, and the Williams case was not noticed. But see Davis v. MacDonougli, 109 Cal. 547, 551, 42 Pac. Rep. 450. \Vhere a contractor performed labor upon a house, by moving it from one place to another, it was held that he was entitled to a lien therefor: Palmer v. Lavigne, 104 Cal. 30; 32, 37 Pac. Rep. 775. This 121 LABOR FOR WHICH A LIEN IS GIVEN. §§ 145-147 Counters and partitions added to a building as fixtures may amount to a " repair " thereof, and support a lien.-* § 145. Same. Importance of determination. The deter- mination of the question whether the work is the " construc- tion, alteration, addition to, or repair " of a structure, under section eleven hundred and eighty-three of the Code of Civil Procedure, has particular reference to the lien for materials. § 146. Character of alteration. The " alteration " of a building may not necessarily be as to its framework, or a change in its form or structure. If the " alteration " is such as to adapt it to other than its original uses, it is sufficient to entitle to a lien. Thus where machinery was furnished to be used, and was used, as a part of a building, to convert it into a sugar-refinery, a lien was given, on the theory that the work done had been the " construction or repairing " of the building.^^ § 147. Distinction between " alteration " and " repair." There is a distinction between the " alteration " and " repair "" of an old building and the " erection " of a new one. The distinction would seem to depend upon the facts of the par- ticular case and the degree of change in the old structure. Thus, raising up, moving back, and repairing two houses, and furnishing materials therefor, do not constitute the " erection " of a building.^® case, however, does not decide that such "moving" comes within the definition of "construction, aUeration, addition to, or repair"; but that it is the performance of labor upon a building: See Selden v. Meelts, 17 Cal. 128, 132. Colorado. The nature of the labor must fall within the purview of the act (construction, extension, enlargement, alteration, or repair of a canal) : Arkansas River L. R. & C. Co. v. Nelson, 4 Colo. App. 438, 36 Pac. Rep. 307 (1883). ^ Madary v. Smartt, 1 Cal. App. 498. 500, 82 Pac. Rep. 561. « Donahue v. Cromartie, 21 Cal. 80, 86. See " Contract for Sale, or for Labor," § 83, ante. Act of April 19, 1S5«, § 1, under which this case was decided, gave material-men a lien for materials furnished " for the construction or repairing of any building, wharf, or other superstructure": See Goss V. Helbing, 77 Cal. 190, 191. =» Eaton V. Malatesta, 92 Cal. 75, 28 Pac. Rep. 54. See Ward v. Crane, 118 Cal. 676, 678, 50 Pac. Rep. 839. See also § 93. ante. Oreson. See Allen v. Elwert, 29 Oreg. 428, 442. §§ 148, 149 mechanics' liens. 122 § 148. Same. Alteration. Erection. Ou the other hand, where the southeast and west sides of an old house are torn away and an addition ten feet wide put up on the south side, and the roof of the old part was removed and a new one added over the old part, and the addition and all the parti- tions were new, although the flooring was not taken up, and the building was enlarged and raised up by putting in under- pinning, it being an old building remodeled, it was held that the work was for the " erection " of the building.-' § 149. Work in mines and mining claims.-^ Second clause. There seems to be fewer limitations upon the char- acter of the work done under the second clause of section eleven hundred and eighty-three of the Code of Civil Proce- dure, than under the first clause, so long as it is labor per- formed " in" a mining claim,^^ or " in or upon " any real " Ward V. Crane, 118 Cal. 676, 677, 50 Pac. Rep. 839. =« Idaho. Labor done " in or upon " a mining claim : See Lock- hart V. Rollins, 2 Idaho 540, 21 Pac. Rep. 413, 415. 29 See notes to §§ 144 et seq., ante, and §§ 161 et seq., post, and " Ob- ject on W' hlch Labor must be Performed," §§ 166 et seq., post. How far labor may be performed "in" a mining: claim, for which in no event a lien is given, within the principle of McCormlck v. Los Angeles City W. Co., 40 Cal. 185, 187, decided under a statute of dif- ferent phraseology, has not been determined in California. Cooking in a mining claim, as to lien for, see § 162, post. Arizona. Definitions of " roasting," " melting," and " smelting " of ores : See United States v. United Verde C. Co. (Ariz.), 71 Pac. Rep. 954. Colorado. But see Brainard v. McKenzie, 4 Colo. 251 (1872), where no lien was allowed for hauling ores from the mine to the mill, as it was not labor "in or upon" the mine. Xevada. But a lien was allowed for such hauling as is men- tioned in the Colorado note, supra: In re Hope Mining Co., 1 Sawy. 710, 12 Fed. Cas., p. 487. See Gould v. Wise. 18 Nev. 253, 3 Pac. Rep. 30. Hio lien wa-s allowed laborers on mines prior to the act of 1867: Hunter v. Savage Consol. S. M. Co., 4 Nev. 153. Oregon. See act to secure liens for laborers in minmg claims, approved February 20, 1891 (2 HiU's Ann. Laws, p. 1906). The term "any such mine," in the third clause of §1 of this act, refers to the mines mentioned in the sections preceding. "That is: 1 To a mine that is being operated for the purpose of obtaining metals or minerals, — or mining proper; 2. To labor or materials furnished in searching for metals or minerals in any designated tract that is supposed to contain them,— or prospecting. Mining and prospecting are generic terms, which include the whole mode of obtaining metals and minerals, and the lien is given to every person who shall do work or furnish materials, either in mining or pros- lTectin%." etc.: Williams v. Toledo C. Co.. 25 Oreg. 426, 36 Pac. Rep. 159, 42 Am. St. Rep. 799. 123 LABOR FOR WHICH A LIEN IS GIVES!. § 150 property worked as a mine,^° in the course of the actual work of mining or development in the mine."^ § 150. Same. Liens allowed. Liens have been allowed for repairing machinery and tools on a mine ; ^- for breaking down and tearing away from the face of the drifts in a mine the quartz and substance of the mine ; ^^ for work of super- intending a mine when accompanied by manual labor ; ^* for Lien for constructing wagon-road. No lien is provided under this act for constructing- a wag-on-road, which is not "an incline or exca- vation": Williams v. Toledo C. Co., supra. ™ This clause was added by the amendment of 1903, which evi- dently carries out but imperfectly the intention of the framers, and rather adds confusion to what already was uncertain. 31 Williams v. Hawley, 144 Cal. 97. 103, 77 Pac. Rep. 762. "^ To laborer: Malone v. Big Flat G. M. Co., 76 Cal. 578, 580, 18 Pac. Rep. 772. Itlalio. An amalg-amator, who keeps the machinery in running- order, looks after the concentrates, cleans amalgam, and generally looks after the machinery, has been held entitled to a lien: Thompson V. Wise Boy M. & M. Co., 9 Idaho 363, 74 Pac. Rep. 958 (a well- consiuered opinion, reviewing authorities from other states). And see Salt Lake H. Co. v. Chainman M. & E. Co., 137 Fed. Rep. 632. New Mexico. "Repair" of machinery: See Ripley v. Cochiti G. M. Co. (N. M.), 76 Pac. Rep. 285. 3» Chappius V. Blankman, 128 Cal. 362, 365, 60 Pac. Rep. 925. See Castagnetto v. Coppertown M. & S. Co., 146 Cal. 329, 333, SO Pac. Rep. 74. -^ Palmer v. Uncas M. Co., 70 Cal. 614, 616, 11 Pac. Rep. 666. Although the claimant was called a " superintendent," the service for which his claim of lien was filed was manual labor done by him in and upon the property. Whether a mining superintenaent who does no manual labor is, under the statute, entitled to a lien was not decided. ('ol:>railo. Rara Avis G. oi S. Co. v. Bouscher, 9 Colo. 385, 12 Pac. Rep. 433 (but not for labor as disbursing agent and accountant). Superintending construction, lien allowed for: Fischer v. Hanna, 8 Colo. App. 471, 47 I'ac. Rep. 303. Profei^sional services on a mine were required to be done for the working, preservation, or development of the property, under act of 1893, p. 315 (3 Mills's Ann. Stats., §§2867 et seq.): Lindemann v. Belden Consol. M. & M. Co., 16 Colo. App. 342, 65 Pac. Rep. 403. («ei>loKist and mining expert, who contracted to explore and exam- ine certain mines and surrounding country with reference to their mineral and geological character, to enable the owner to sell the property, was held not entitled to a lien, under lien law of 1893, § 1, p. 315 (3 Mills's Ann. Stats., § 2867), allowing a lien to engineers who have rendered proiessional services, § 8 allowing such lien to all persons who did work for the working of development of any min- ing claim, or for such services in searching for metals or minerals, there being nothing upon the record nor upon the ground to indicate the work for which such latent lien might be claimed. A contrary ruling would be destructive of the business of selling mines: Lindemann v. Belden Consol. M. & M. Co., 16 Colo. App. 34::, 65 Pac. Rep. 403. § 150 mechanics' liens. 124 grading a flume-bed, surface-ditches, and tunnel-approaches, and timbering and lining the same with masonry.^'^ Liens are alloAved to laborers in extracting ores from mines,^" as well as for work done for development to discover new or better ore, or to facilitate the extraction of ore, discovered or undiscovered, or for work which served to accomplish all these purposes.^^ Custodian to see that mining property is not destroyed is prob- ably not " work," within the lien statute, even under the amend- ment of 1889, as mining property is not preserved by being watched, and the mere custodian of machinery on a mine might possibly have a lien on the macliinery, but probably not on the realty (dictum): Griffin v. Seymour, 15 Colo. App. 487, 63 Pac. Rep. 809. As to custodian of mine not being entitled to mechanic's lien for services, see Kerr's Cye. Code Civ. Proe., § 143, note pars. 148, 149. See also note 44, this chapter. Idalio. Professional or supervisory employment on mine: See Lockhart v. Rollins, 2 Idaho 540, 21 Pac. Rep. 413, 415. Montana. Superintendent of mining corporation not allowed a lien: Smallhouse v. Kentucky etc. Co., 2 Mont. 443. Nevada. Foreman who keeps time and gives orders for pay of men is entitled to a lien, as such work has a direct tendency to develop the property: Capron v. Strout, 11 Nev. 304. New Mexico. General manager, superintendent, and mining engi- neer, who also received and sliipped the bullion and concentrates, kept books, assisted in cleaning up, and retorted the gold, etc., did not "perform labor" in the mine, entitling him to a lien, his salary of three thousand dollars per annum being considered excessive for merely overseeing a few men in a small mine: Boyle v. Mountain Key M. Co., 9 N. M. 237, 50 Pac. Rep. 347. " Mining superintendent," tlie superintendent of a mining com- pany, distinguished from tlie "superintendent of a mine" only: Boyle v. Mountain Key M. Co., 9 N. M. 237, 50 Pac. Rep. 347, 349, 351. Utah. Superintendent of labor in a mine was allowed a lien: Cullins V. Flagstaff S. M. Co., 2 Utah 219, following Nevada case, supra, and distinguishing Montana case, supra, as relating to tlie claim of " a general manager of a corporation in all its business." This case was affirmed in Flagstaff S. M. Co. v. Cullins, 104 U. S. 176, bk. 26 Li. ed. 704, and the other cases here cited were reviewed, tlie court alluding to the presence of bodily toil, and saying, "It is somewhat difficult to draw the line between the kind of work and labor which is entitled to a lien, and that wliich is merely pro- fessional or supervisory employment not fairly to be included in these terms." Washington. See Cadwell v. Brackett, 2 Wash. 321, 26 Pac. Rep. 219. ^■' Giant P. Co. v. San Diego F. Co., 88 Cal. 20, 22, 25 Pac. Rep. 976. 36 Higgins V. Carlotta G. M. Co., 148 Cal. 700, 702, 84 Pac. Rep. 758, 113 Am. St. Rep. 344. " Higgins V. Carlotta G. M. Co., 148 Cal. 700,- 702, 84 Pac. Rep. 758, 113 Am. St. Rep. 344. Lien allowed for sharpening picks, etc., and upon fixtures in mine: Malnne v. Big Flat G. M- Co., 76 Cal. 578, 583. 18 Pac. Rep. 772. See ■■ Fixtures," ^ 95, ante, and sS 185 et seq., post. 125 LABOR FOR WHICH A LIEN IS GIVEN. § 151 Construction, alteration, or repair of mine. Strictly speaking, a " mining claim " cannot be " constructed, altered, or repaired," ^* although it has been more recently held that breaking down and tearing away from the face of the drifts in a mine the quartz and substance of the mine is work per- formed in the " construction, alteration, and repair " of the mine.^** § 151. Same. Notice of non-responsibility. Tunnel. Be- fore the amendment of March 18, 1907, section eleven Work as a miner in the development, improvement, protection, and preservation of a mine: See Reese v. Bald Mt. Consol. G. M. Co., 133 Cal. 285, 289, 65 Pac. Rep. 578. Idubu. Lien allowed for milling ore in mill on mine: Thompson V. Wise Boy M. & M. Co., 9 Idaho 363, 74 Pac. Rep. 958. 3* Helm V. Chapman, 66 Cal. 291, 292, 5 Pac. Rep. 352; Williams v. Santa Clara M. Assoc, 66 Cal. 193, 197; Williams v. Mountaineer G. M. Co., 102 Cal. 134, 141, 34 Pac. Rep. 702, 36 Id. 388. See "Nature of Property for Which Material must be Furnished," { 98, ante. M'hen the cases of Helm v. Chapman and Williams v. Santa Clara M. Assoc, supra, were decided, § 1183 of the Code of Civil Procedure provided, " Mechanics . . . performing labor upon or furnishing material to be used in the construction, alteration, or repair of any mining claim, building, wharf, . . . shall have a lien upon the prop- erty upon which they have bestowed labor," etc. In the former case it was said: "The intention of the law-makers seems to have been to give a lien upon the whole claim for labor performed on, and for materials furnished for and used in, any structure, or on or in the alteration or repair of any structure, or on or in a mining claim." Shortly after this decision, this section was amended by striking out from the list of " structures," in the first clause, the words " mining claim," and a separate clause, herein generally designated as "the second clause of §1183," was inserted, providing that "any person who performs labor in any mining claim or claims " has a lien upon the same, and the works owned and used by the owners for reducing the ores from such mining claim or claims," etc. The words quoted were in the section before 1880, and were stricken out at tliat time, labor upon any mining claim being also provided for in the first clause. In Ayers v. Green Gold Mining Co., 116 Cal. 333, 48 Pac. Rep. 221, an attempt was made to foreclose a lien for the work of cleaning out a tunnel, but none of the questions discussed above were noticed. Under the first clause of the statute, a miner is given a lien upon property for work on " structiires." Tlie extent of this property is nun-e particularly defined in § 1185 of the Code of Civil Procedure. Under the second clause, "any person who performs labor in any mining claim or claims, or in or upon real property worked as a mine," whether technically a " miner " or not, " has a lien upon the same, ana the works owned and used by the owners for reducing the ores from such mining claim or claims, or real property so worked as a mine." •» Chappius V. Blankman, 128 Cal. 362, 365. 60 Pac. Rep. 925. § 152 mechanics' liens. 126 hundred and ninety-two of the Code of Civil Procedure provided for notice of non-responsibility by the owner " within three days after he shall have obtained knowl- edge of the construction, alteration, or repair " of " every building or other improvement mentioned in section eleven hundred and eighty-three," " or the intended con- struction, alteration, or repair." Under this section, as it then stood, drifting in a tunnel was not the " construc- tion, alteration, or repair " of any such " building or other improvement," and such work differs from running a tunnel, the court saying, " It is equitable to require the owner, who sees going forward an unauthorized building or other beneficial improvement upon his property, to give notice that he will not be responsible therefor ; but this con- sideration fails when the work consists in a subtractive pro- cess — the removal of the very corpus of the property." *'^ In view of the amendment to the section, the decision loses force. § 152. Same. Drifting. But, while, under the peculiar language of section eleven hundred and ninety-two of the Code of Civil Procedure, as it stood before the amendment of 1907, " drifting in a tunnel " might not have been the " construction, alteration, or repair of a building or otlier improvement " for the purpose of requiring notice of non- responsibility from the owner to prevent his liability from attaching for the work when ordered by a person not duly authorized, yet a lien was given " in a mining claim, or in or upon any real property worked as a mine," under the express amendment of section eleven hundred and eighty- three in 1903, whether the work be in the development thereof or in working thereon by subtractive process; and it had been previously held that for work performed in *" Jurgensen v. DiUer, 114 Cal. 491. 493, 46 Pac. Rep. 610, 55 Am. St. Rep. 83. See '• Estoppel," S 469, post. But see " Notice of Non-responsibility," §§ 473 et seq., post. ' In Williams v. Mountaineer G. M. Co., 102 Cal. 134, 139, 34 Pac. Rep. 702, 36 Id. 388, it was said: "The labor cannot generally be said to have contributed to the creation of the property, or added to its value: on tlie contrary, it may diminish its value — perhaps render it valueless." *! 127 LABOR FOR WHICH A LIEN IS GIVEN. §§ 153-155 quarrying and extracting quartz and ores in stopes and levels, for the purpose of taking out rock to be crushed, or in any pit, shaft, or gallery of a mine, one is entitled to a lien." § 153. Same. Running tunnel. The work of construct- ing or running a tunnel in a mine is work done upon the mining claim in the development thereof, within the mechanic's-lien law. Hence where a mining company con- tracted for the running or construction of a tunnel in their mining claim for a stipulated sum, and the contractor failed to pay the laborers employed in running or constructing such tunnel, they were held to be entitled to a mechanic's lien on the property for the amount due them as wages for the work.*^ § 154. Same. Shaft. Mining instrumentalities. The true signification of such expressions as " shafts," " tunnels," " levels," " chutes," " stopes," " uprises," " crosscuts," " in- clines," etc., when applied to mines, is instrumentalities whereby and through which such mines are opened, de- veloped, prospected, improved, and worked. He who engages in the construction of those prime requisites upon or in a mine is engaged in mining, equally with one who extracts gravel or ore therefrom, and is entitled to a lien therefor." § 155. Same. Watchman of idle mine. A lien was refused to a watchman of a mine while the mine was lying idle.'** *' Helm V. Chapman, 66 Cal. 291, 292, 5 Pac. Rep. 352, 5 West Coa.st Rep. 127. " Parker v. Savage Placer M. Co., 61 Cal. 348. At the time of this decision. § 1183 of the Code of Civil Procedure provided that " mechanics . . . performing labor upon or furnishing' material to be used in the construction, alteration, or repair of anj' mining claim, building, . . . tunnel, ... or other structure shall have a lien upon the property," etc. It is also to be noticed that " tunnels " were specifically enumerated in the section; and whether the lien was allowed as work on a " tunnel " or in a " mining claim " does not Clearly appear in the decision. .See § 179, post.' *' Hines v. Miller, 122 Cal. 517, 55 Pac. Rep. 401. ee Martin's Miuiu^ Iia»v, passim. Williams v. Hawley. 144 Cal. 97, 103, 77 Pac. Rep. 762. See also note 34, ante, this chapter. §§ 156-158 mechanics' liens. 128 § 156. Grading, etc., under § 1191.^ ' Section eleven hun- dred and ninety-one of the Code of Civil Procedure applies to grading and other improvements of a lot, done inde- pendently of and not as a necessary part of the construction of a building,*® in an incorporated city or town,*' and not outside of it.** § 157. Same. Work not enforceable under this section. The lien of excavators who perform labor and furnish mate- rials for the proper grading of a lot preparatory and neces- sary to the construction of a building, under a void original contract, which included such preparatory- work, is enforce- able, under section eleven hundred and eighty-three, and not under section eleven hundred and ninety-one, of the Code of Civil Procedure. *° It is thus fairly deducible that where the w'ork would otherwise fall within section eleven hundred and ninety-one, if it is preparatory and necessary to any work falling within section eleven hundred and eighty-three, it becomes a part of the latter work, and is generally gov- erned by the same rules as such work. § 158. Same. Meaning of " improves," " improvement." The word " improves," as used in section eleven hundred and ninety-one, is different in meaning from that used in section Idaho. A watchman in charge of mining property, consisting of personal and real property, has a lien on the personal property while in possession thereof, for his services: Idaho Comstock M. & M. Co V. Lundstrum, 9 Idaho 257, 74 Pac. Rep. 975 (under Rev. Stats. 1887. S 3445). Foreman and -natcUnian of a mine held entitled to a lien, under Laws 1893, p. 49, § 1: Idaho M. & M. Co. v. Davis, 123 Fed. Rep. 396, 59 C. C. A. 200. *^ Section 9 of the act of 1868 (Stats. 1867-68, -p. 589) gave a lien similar to that provided for in § 1191 of the Code of Civil Procedure, and the section was carried into the Code of Civil Procedure upon its adoption in 1872, and became § 1184. It remained unchanged until 1885 (Stats. 1885, p. 143), when it became § 1191 of the Code of Civil Procedure, and was amended by adding the words " or sidewalk " after the word "street." By the act of 1887, four sections of the code, relating to mechanics' liens, including § 1191, were amended, leaving the other sections untouched: Santa Cruz R. P. Co. v. Lyons, 133 Cal. 114, 117, 65 Pac. Rep. 329. <« Macomber v. Bigelow, 126 Cal. 9, 13, 58 Pac. Rep. 312. " See "Object on Which Labor must be Performed," §§ 166 et seq., post. ^» Durrell v. Dooner," 119 Cal. 411, 51 Pac. Rep. 628. *» Macomber v. Bigelow, 126 Cal. 9, 13, 58 Pac. Rep. 312. 129 LABOR FOR WHICH A LIEN IS GIVEX. § 159 eleven hundred and eighty-three, discussed above.^° It refers to some " imi^rovement of " the lot upon which the lien is given, rather than to the " improvements upon " the lot, referred to in section eleven hundred and eighty-eight, relating to a lien upon two or more buildings; or in other words, it refers to the work, rather than to the object upon M'hich the work is done. Section eleven hundred and ninety- one governs the construction of sidewalks.^^ § 159. Same. Relation to work on structures. Under the decision last cited, it seems that section eleven hundred and eighty-three has no application generally to the work spe- cially mentioned in section eleven hundred and ninety-one, which gives a lien to a person who " grades ... or other- wise improves any lot in any incorporated city," etc. A person who erects a " structure " on a lot in an incorpo- rated city may have a lien which would fall within the first clause of section eleven hundred and eighty-three, and he would, unquestionably, in the usual acceptation of the term, improve the lot, and make improvements in connection therewith.^^ «» See § 141, ante, and § 171, post. " Kreuzberger v. W^ingfield, 96 Cal. 251, 257, 31 Pac. Rep. 109. Washington. The grading of a street in front of property is an "improvement" of the property: Young v. Borzone, 26 Wash. 4, 66 Pac. Rep. 135, 138, 421. •■■2 Warren v. Hopkins, 110 Cal. 506, 42 Pac. Rep. 986. "Therewith." It is uncertain whether the word " therewitli," as used in tliis connection, alludes to the lot, sidewalk, rooms under a sidewalk, street, areas, vaults, or cellars, or all of these objects. It is possible that §1191 alludes to some kind of "improving" of a lot, in incorporated cities, of a character not referred to in § 1183. The "improvements," under the first clause of §1183, are classified as " structures." The nature of the work enumerated in § 1191 is of a different general character from that mentioned in § 1183, and the expression, "makes any improvement in connection therewith," would probably be construed as the doing of any work of the same general character as that specifically enumerated in § 1191 (under the principle de sociis), and not provided for in § 1183. But see SS 156, 157, ante, and McClain v. Hutton, 131 Cal. 132, 136, 63 Pac. Rep. 1S2, 61 Id. 273, and see " Object on Which Labor must be Performed," §§ 166 et seq., post. Wa.*)hingtuu. The lien for grading the street in front of a lot is given, and attaches in the same manner and to the same extent as where the improvement is placed directly on the lot, instead of appurtenant to it: Young v. Borzone, 26 Wash. 4, 66 Pac. Rep. 135, 138, 421. Mech. Liens — 9 §§ 160-162 mechanics' liens. 130 § 160. Same. Liens allowed. Under section eleven hun- dred and ninety-one of the Code of Civil Procedure, liens have been allowed for street improvements in front of the property,^^ for grading the lot/'^ and for constructing bulk- heads,^° sidewalks,"" curbing, and cement steps on the side- walk leading up to the pathways."'' § 161. Labor for which lien is not given in any event. The work must not be too remote from the ultimate result contemplated,"'^^ even though without such work the ultimate result could not be accomplished. § 162. Same. Preliminary work. Thus no lien was allowed for " preliminary work," consisting of the building of sawmills, railroads, and roads, including a plant, timber- ^= Beatty v. Mills, 113 Cal. 312, 45 Pac. Rep. 468. See Santa Cruz R. P. Co. V. Lyons, 117 Cal. 212, 48 Pac. Rep. 1097, 59 Am. St. Rep. 174, and Santa Barbara v. Huse, 51 Cal. 217 (improvements under a city ordinance). See also De Haven v. McAuley, 138 Cal. 573. 576, 72 Pac. Rep. 152. The permission of the superintendent of streets, under an ordi- nance of the city and county of San Francisco, was sufflcient to justify digging up and disturbing the street for the purpose of paving: Flinn v. Mowry, 131 Cal. 481, 488, 63 Pac. Rep. 724, 1006; but not grading the same: Flinn v. Movrry, supra; San Francisco v. Buckman. Ill Cal. 25. 43 Pac. Rep. 396. In the case of gradinK under private contract, under subdivision 10 of § 7 of the Street Improvement Act (Stats. 1885. p. 147. as amended Stats. 1891, p. 201, Henning'.s General Laws, p. 1318). permission of the city council to do the work must be first obtained: Flinn v. Mowry, supra; Durrell v. Dooner, 119 Cal. 411, 51 Pac. Rep. 628. See Flinn v. Mowry, 131 Cal. 481, 487, 63 Pac. Rep. 724, 1006 (also paving). " Warren v. Hopkins, 110 Cal. 506, 42 Pac. Rep. 986. See Giant P. Co. V. San Diego F. Co., 88 Cal. 20, 22, 25 Pac. Rep. 976. Oregon. L'nder § 3676, Hill's Code: See Pilz v. Killingsworth, 20 Oreg. 432, 26 Pac. Rep. 305. « Kreuzberger v. W^ingfield, 96 Cal. 251, 253, 31 Pac. Rep. 109. See "Grading and Street-work," § 184, post. 56 Kreuzberger v. WMngfield, 96 Cal. 251, 253, 31 Pac. Rep. 109; Bryan v. Abbott, 131 Cal. 222, 63 Pac. Rep. 363 (cement sidewalk; for materials also). ■" Bryan v. Abbott, 131 Cal. 222, 63 Pac. Rep. 363. See also Flinn V. Mowry, 131 Cal. 481, 487, 63 Pac. Rep. 724, 1006. Colorado. A lien on lots for constructing a sidewalk, not on the land, but in the street in front thereof, is not authorized by 2 Mills'3 Ann. Stats., | 2867, and said section is not modified by § 2871, Id.: Fleming v. Prudential Ins. Co., 19 Colo. App. 126, 73 Pac. Rep. 752. ^* Colorado. Lindemann v. Belden Consol. M. & M. Co., 16 Colo. App. 342, 65 Pac. Rep. 403: Rara Avis G. & S. M. Co. v. Bouscher, 9 Colo. 385, 12 Pac. Rep". 433. 131 LABOR FOR WHICH A LIEN IS GIVEN. § i (32 slides, and other apparatus; and in the construction of a ditch.=" Nor for cooking on the ground, as the work progressed, in the construction of a reservoir on a mine, the court saying, " If any lien exists, it arises, not from the place where the cooking was done, but from the nature of the services, and its relation to the work which was being constructed. If the plaintiff can assert a lien on the facts proved, he could as well have done so if the cooking had been performed at any other place ; and if the mere fact that a person is em- ployed to cook for the laborers engaged in erecting a build- ing entitled him to a lien, the same result would follow if he had furnished the provisions also. On the same theory, a blacksmith who shod the horses, or a grain dealer who fur- nished them forage whilst employed on the work, or a wagon-maker who repaired the carts of the contractor, would be entitled to a lien on the building. And if every one who contributed indirectly and remotely to the work is entitled to a lien, no reason is perceived why a surgeon called to set a broken limb of one of the laborers, whereby he will be enabled at an early day to resume work on the building, might not assert a lien; but services of this char- acter, not performed on the building, are not within the province of the statute." *'° '^ South Fork C. Co. v. Gordon, 73 U. S. (6 Wall.) 561, bk. 18 L. ed. 894. •"' Mccormick v. Los Angeles W. Co., 40 Cal. 185, 187. This case was decided under the act of March 30, 1868 (Stats. 1867-68, pp. 589, 590), §1, providing that "every mechanic, artisan, machinist, builder, contractor, lumber merchant, miner, laborer, and other person per- forming labor upon or furtiishing materials of any kind to be used in tlie con.struction, alteration, or repair, either in whole or in part, of any mining claim, building, . . . shall have a lien upon the same for the work or labor done or materials furnished." It will be noticed that the statute upon which this decision is based is not as broad as the second clause of i 1183, " in a mining claim." As to lien of cook on mine for amount of wages, see Kerr'.s Cjc. Corte Civ. Proo., § 1183, note pars. 148, 149. Colorado. Nor for services rendered in traveling about and urging the contractor's material-men to hasten delivery of materials, under Mills's Ann. Stats., Rev. Sup., p. 769: Pitschke v. Pope, 20 Colo. App. 328. See also Brainard v. McKenzie, 4 Colo. 251. While liens are allowed for many kinds of labor that the author- ities term " incidental," such incidental labor must be directly done for and connected with, or actually incorporated into, the building: Rara Avis G. & S. M. Co. v. Bouscher, 9 Colo. 385, 12 Pac. Rep. 433 (no lien allowed for disbursing agent and accountant). Oregou. See Willamette Falls T. & M. Co. v. Remick, 1 Oreg. 169. §§ 163-165 mechanics' liens. 132 § 163. Same. Teaming for material-man. Upon the prin- ciples set forth in the last section, no lien is given to material- men's laborers. Thus no lien is given to a teamster who hauls bricks '^^ or slate ^^ for a material-man. § 164. Same. Material-man's laborer. On the same prin- ciples as to remoteness from the ultimate object of the work and the nature of the labor for which a lien is given, hereto- fore discussed, no lien is allowed to the one making the material, e. g., bricks, for the material-man."^ § 165. Same. Test, legitimate connection with work of mine. On the other hand, it was said that " the character of the work should not be scrutinized too strictly. If the labor had a legitimate connection with the working of the mine, it is sufficient, within the meaning of the lien law." °* " Adams V. Burbank, 103 Cal. 646, 651, 37 Pac. Rep. 640; Harmon V. San Francisco & S. R. R. Co., 86 Cal. 617, 618, 25 Pac. Rep. 124. But otherwise if the hauling was done for the orig-inal contractor, under a void statutory original contract: McClain v. Hutton, 131 Cal. 132, 138, 63 Pac. Rep. 182, 622, 61 Id. 273. See §§ 91, 162, ante. Oregon. By 2 Hill's Ann. Laws, § 3669, a lien is given for " trans- porting or hauling material ... to be used in the construction," etc., of the objects mentioned in tiie section. But no lien was allowed thereunder for hauling or transporting tools and appliances for rais- ing a house: Allen v. Elwert, 29 Oreg. 428, 44 Pac. Rep. 823, 48 Pac. Rep. 54. «= Wilson V. Nugent, 125 Cal. 280, 284, 57 Pac. Rep. 1008 (it did not appear that the cost of cartage was included in the contract price). <=3 Adams V. Burbank, 103 Cal. 646, 651, 37 Pac. Rep. 640 (dictum). See ante, § 46. ^ Malone v. Big Flat G. M. Co., 76 Cal. 578, 586, 18 Pac. Rep. 772 (decided under "the law as it stood in 1880." Note, however, that S 1183 was amended in 1880). 133 ON WHAT LABOR MUST BE DONE. § 166 CHAPTER X. OBJECT ON WHICH LABOR MUST BE PERFORMED. § 166. Distinction between " object " and " property." ? 167. Constitutional provision. § 168. Division of the statute. § 169. Statutory provisions. § 170. Definition of terms used herein. § 171. Same. " Improvement.*' " Structure." § 172. Structure on a mine. Oil-well. §173. "Structures," in general. First clause of statute. § 174. Structures not enumerated in statute. § 175. Structures enumerated in statute. Buildings. § 176. Same. Bridges. § 177. Same. Aqueduct, ditch, and flume. § 178. Same. Well. § 179. Same. Tunnel. § 180. Same. Machinery. § 181. Same. Railroad. § 182. Mining claims, and real property worked as a mine. Sec- ond clause of statute. § 183. Definition of " mine." § 184. Grading and street-work under code provision. § 185. Fixtures. In general. § 186. Same. Question of fact. Building. § 187. Same. Principles of determination. § 188. Lien primarily on structure. § 189. Work upon fixtures, how deemed. § 190. The severance of buildings from the freehold. § 191. Work on fixtures in mine. § 192. Public property. § 166. Distinction between " object " and " property." A distinction must be drawn between the " object " upon Avhich the work must be done in order to gain a lien, and the " property " to which the lien extends, which may be either rights or olijects. The "property" may be: 1. Physically, considerably greater in extent than the object ; but, on the other hand, it may not include the object; or 2. It may be the fee-simple, §§ 167-169 MECHAXICS' LIENS. 134 or an estate or interest less than the fee-simple. The latter matters will be considered hereafter.^ Some confusion has arisen by reason of the failure to observe these distinc- tions. This subject is also closely related to the nature of the labor for which a lien is given, which has already been considered.- § 167. Constitutional provision. The constitution of California ' provides that lien-holders " shall have a lien upon the ' property ' upon which they have bestowed labor or furnished material." * § 168. Division of the statute. It has already- been shown, in a general way. that there are three great divis- ions of the California statute, two of these divisions being contained in section eleven hundred and eighty-three of the Code of Civil Procedure, relating to " structures " and " mines," and one of them in section eleven hundred and ninety-one of the same code, relating to grading, etc., work on lots.^ § 169. Statutory provisions. In obedience to the above- mentioned provision of the California constitution, the code provisions on mechanics' liens ** relating to real property have assumed the present form. Section eleven hundred and eighty-three of the Code of Civil Procedure enumerates two sets of objects upon which the labor must be performed: 1. Under the first clause, upon any " building, wharf, bridge, ditch, flume, aqueduct, well, tunnel, fence, ma- chinery, railroad, wagon-road, or other structure," although the lien is given upon the " property " upon which they have bestowed labor or furnished the material ; and 2. Under the second clause, " in any mining claim or claims, or in or upon 1 See " Property Extent of Lien," |S 438 et seq., post. » See §§ 130-165, ante. ' Cal. Const. 1879, art. xx, § 15, Henning's General I>,aws, p. civ. ♦ Berentz v. Belmont O. Co., 148 Cal. 577. 583. 84 Pac. Rep. 47. 113 Am. St. Rep. 308. rever.siu« s. c. (Cal. App. ) 84 Pac. Rep. 45. '• See §§ 130-134. ante. • Kerr's Cjc. Code Civ. Proc, §§ 1183-1203a. 135 ON WHAT LABOR MUST BE DONE. § 170 any real property worked as a mine." ' Section eleven hun- dred and ninety-one of the Code of Civil Procedure enumer- ates as the objects upon which the labor must be performed, " any lot in any incorporated citA', or the street or sidewalk in front of or adjoining the same, or any areas, or vaults, or cellars, or rooms under the sidewalks," * and the lien is given upon the lot. § 170. Definition of terms used herein. In the discussion of this subject, the thing upon which the labor must be per- formed in order to gain a lien will be designated as the object of the labor, and the thing over which the lien extends Avill be designated as the property subject to the lien. The objects of the labor are given various generic designations in different sections of the code, the same being marked by uncertainty and indecision in their use.'' ' Under the act o£ April 19, 1856, giving a lien, in the first section, for the work and labor, or materials furnished, for the construction or repairing of any building, wharf, or other superstructure, and in the tenth section for the making, altering, or repairing of personal property, and under the fourth section giving a lien upon the land, if at tlie time the land belonged to the person who caused the super- structure to be erected, the court said: "Putting these different pro- visions together, the evident intention of the act was to give me- chanics and artisans a lien for all work done by them upon any description of property": McCreary v. Osborne, 9 Gal. 119, 123. * See §§ 133, 134, 139, 156-160, ante. " §1183 of the Code of Civil Procedure provides: "Mechanics . . . shall have a lien upon the property upon which they have bestowed labor or furnished materials, for the value of such labor done and materials furnished, [1] whether at the instance of the owner, or of any other person acting by his authority or under liens, as contractor [1] or otherwise; and any person who performs labor in any mining claim or claims, or in or upon any real property worke(" as a mine, . . . has a lien upon the same . . . for the work or labor done or materials furnished by each respectively, [2] whether done or furnished at the instance of the owner of such mining claim or claims or real property worked as a mine or of the building, or othei improvement, or liis agent [2]." If the expression ** buildiui;', or other iniproveiueut," in the clause set off and marked by the [2] in the above quotation, relates to " mining claim," among other objects, such " mining claim " would seem to be within the classification of "buildings" or "improve- ments"; if, on the other hand, it relates to "structures" only, under the clause set off and marked by the [1], it seems to be an unneces- sary repetition of the first of the passages above set off as indi- cated. If the expression " building, or other improvement," in the second clause, is construed as relating to " mining claim," and af indicating the labor performed, which results in the " building or improvement," the second of the claims set off may be given some significance. § 171 mechanics' liens. 136 § 171. Same. " Improvement." " Structure." The expres- sions " improvement " and " structure," as used in different sections of the statute, having meanings greater or less in It is to be noted, In this connection, that the object may come into existence as an "improvement" or "building" by the exercise of labor upon the property; for instance, a structure erected upon a bare lot comes into existence as an object by the application of labor, and the " improvement " then exists. The performance of the work and the coming into existence of the object may be synchronous events, and may go on pari passu : Curtis v. Sestanovich, 26 Oreg. 107, 115, 37 Pac. Rep. 67; Garland v. Bear Lake & R. W. & Irr. Co., 9 Utah 350, 34 Pac. Rep. 368. The object or " improvenient," in some instances, may be con- sidered the result of the labor, or the final cause thereof. The Cali- fornia supreme court has said (dictum): "In all these sections [Code Civ. Proc, §§ 1183, 1184, 1185, 11S7], — and others might be mentioned, — the term 'improvement' is evidently used as equivalent to the object upon which the labor has been performed, and it would be an unwarranted application of the term to construe it as equivalent to the labor itself, or to that particular class of labor for which the claimant was employed": Davis v. MacDonough, 109 Cal. 547, 551, 42 Pac. Rep. 450. The clause following the passage from § 1183, above quoted, is as follows: "And every contractor, ... or other person having charge of any mining, ... or the construction, alteration, addition to, or repair, ... of any building or other improvement, as aforesaid, . . . shall be held to be the agent of the owner for the purposes of this chapter." Here " mining " is set over against certain work and " any building or other improvement." The reference seems aimed rather at the work than at the object. " Mining," however, may be done either in a "mine" or in a "mining claim" ; but it has been seen that the former expression is brouder than the latter. \Vork in a mine, upon land held under an asrieultural patent, or in a Mexican or Spanish grant, it has been held, does not fall within the purview of the second clause of § 1183, as it stood before the amendment of 1903. Mining in a mining claim may therefore possibly be meant. And this may tend to show that a mining claim is not a "building or other improvement as aforesaid." within the meaning of the clause now discussed. In the case last cited, the court said: " In a subsequent portion of the same section [Code Civ. Proc, §1183], these enumerated objects ["structures." under the first clause] are grouped into ' building or other improvement.' " It is uncertain to which of the two clauses quoted in this note the lan- guage of the supreme court has reference; but, at any rate, it tends to show that a " mining claim " is an object different from a " build- ing or other improvement." In § 1184, in the clause relating to posting notices of the perform- ance of labor or the furnishing of materials, we find a requirement to post it " in a conspicuous place upon the mining claim or improve- ment"; again tending to show that a "mining claim" is not within the meaning of " improvement." In § 1185 we find the expression, " building, impi;ovement, well, or structure," used twice in reference to the "space" about the same "for the convenient use and occupation thereof"; which also seems, but not so clearly, to exclude " mining claims." In § 1186 we find tlie expression, " building, improvement, or structure," used twice in reierence to priority over other liens and •ij f 137 ON WHAT LABOR MUST BE DONE. § 171 scope, in accordance with the context in which they are found; each of the expressions, "structures" or "improve- ments," is sufficiently extensive in meaning to include all the encumbrances, but no reference made to mining claims. Qusere, Does the former expression include the latter? lu § 11.S7 the expression, " building-, improvement, or structure," is used nine times, once in contradistinction to " labor in a mining claim," in reference to notice of completion of the building, etc., and the filing of the claim of lien. In §1190 we find the expression, "building, mining claim, im- provement, or structure," in reference to the statutes of limitations; again showing that "mining claim" is not included in the other objects enumerated. In § 1193, however, we find the expression, " building or other im- provement mentioned in § 11S3 of this code," and the expression, "building or other improvement," relating to estoppel of the owner by failing to post notice of non-responsibility; and it has been assumed that this section has no application to mining claims. In §1188 we find the expression, "buildings, mining claims, or other improvements," m reference to the filing of a claim against two or more of such objects; and later in the same section the expression, "buildings or other improvements"; which would tend to show that the work done or accomplished in a mining claim is an " improvement." In § 1196 we find, in reference to the attachment or execution, etc., of materials furnished for use in the construction, alteration, or repair of "any building or other improvement," that they are exempt, so long as in good faith the same are about to be applied to the construction, alteration, or repair of such " building, mining claim, or other improvement"; again classing accomplished work on a mining claim with " other improvement." " Improvement." No " hard-and-fa-st " definition. It seems that no liard-and-fast definition can be given to the expression " improve- ment " to make it descriptive of the object of the labor, at least so far as a mining claim is concerned. It is evident that a " structure " may be erected in a mining claim, or in or upon real property worked as a mine; but in such case it seems the work is to be regarded as done under the second clause of § 1183, and not upon a "structure" under the first clause of that section: See §§ 130 et seq., ante. In reference to "structures" under the fir.>*t clau.se of §1183, the supreme court has said : " In a subsequent portion of the same section these enumerated objects are groupd into 'building or other improvement,' and in subsequent sections they are designated as ' building, improvement, or structures.' It is thus evident that the term 'improvement,' as used in §1187, is intended to embrace the several enumerated objects in the beginning [first clause] of § 1183, other than 'building' and 'structure'" : Davis v. MacDonough, 109 Cal. 547, 551, 42 Pac. Rep. 450. It is to be noted, however, that in § 1183, as shown above, the expression, "building or other improvement," seems to include all the "structures," at least other than "building," mentioned in the flrst clause of §1183, and hence Includes "structures"; so that, in this connection, in certain clauses it seems that " improvement " includes "structures" other than "building." Likewise in §§1188, 1192, and 1196 of Kerr's Cyc. Code Civ. Proc. §§ 172, 173 mechanics' liens. 138 objects enumerated in the first clause of section eleven hun- dred and eighty-thi ve ; ^" and in most instances they denote the accomplished work, that is, the object, and not the labor, but the result of the labor, whether under the first clause or under the second clause of section eleven hundred and eighty-three of the Code of Civil Procedure.^^ § 172. Structure on a mine. Oil-well. When any one of the " structures '" enumerated in section eleven hundred and eighty-three ^^ is an adjunct or appurtenance to a mining claim or mine, the effect is to transfer the object from the first to the second clause of the section.^^ The two clauses are not mutually exclusive. Hence a well drilled for the purpose of, extracting mineral oil, in a tract of land, creates a mining claim or mine, notwithstanding the inclusion of " wells " in the enumeration of structures in the first clause.'* § 173. " Structures," in general. First clause of statute. " The use of the phrase ' other structure,' " in the above- quoted extract (the first clause) of section eleven hundred and eighty-three, " shows that the word ' structure ' compre- hends all the properties specifically enumerated, and is broad " See § 141, ante. " Amendment of 1897 to § 1187. It is to be noted in this connec- tion that under the amendment of 1897 to § 1187, relating to notice of completion of building, we find the expression, " construction, . . . of any work mentioned in §1183 of this code." The word "work" apparently refers to the object or accomplished work enumerated in that section. Colorado. See Small v. Foley, 8 Colo. App. 435, 47 Pac. Rep. 64 (1889). 12 Kerr's Cyc. Code Civ. Proe., § 1183. 13 Berentz v. Belmont Oil Co., 148 Cal. 577, 581, 84 Pac. Rep. 47, 113 Am. St. Rep. 308, reversing s. c. (Cal. App.) 84 Pac. Rep. 45; Williams v. Mountaineer G. M. Co.. 102 Cal. 134, 34 Pac. Rep. 702, 36 Id. 388. See Parke & Lacy Co. v. Inter Nos O. & D. Co., 147 CaL 490, 492, 82 Pac. Rep. 51, and Jordan v. Myres, 126 Cal. 565, 567, 58 Pac. Rep. 1061. " Berentz v. Belmont Oil Co., 148 Cal. 577, 583, 84 Pac. Rep. 47, 113 Am. St. Rep. 308. See Martin's Mining La^v, passim. Oregon. Mill or tramway built and used in connection with a mine is a " structure," but a mine or mining' claifn is not a " struc- ture": Watson V. Noonday M. Co., 37 Oreg. 287, 60 Pac. Rep. 994, 996 (under Hill's Ann. Laws. §3669). Wasliingtitn. Lien on well, under § 1, p. 229, ch. cxvi. Laws 1905: Lee V. Kimball (Wash.), 88 Pac. Rep. 1121. l^li Ox\' WJIAT LABOR MUST BE DONE. § 174 enough to include any similar thing constructed, should the enumeration prove incomplete. Following this with the lan- guage ' and any person who,' it would seem to show that a. mining claim was not included in the structures upon which liens were allowed." ^° As shown above, the expression " structure," or " other structure," has been determined to have different significations, in accordance with the context. Thus : A " mine " or pit sunk within a mining claim is a " struc- ture," within the meaning of the statute providing for liens of mechanics and others upon real property.^" § 174. Structures not enumerated in statute. Whether structures not enumerated in the statute carry a right to a mechanic's lien depends upon the nature of the structure, the character of its connection to the realty or an improvement thereon, and the uses for which it is intended. A structure may be a part of a larger structure, and, in reference to it, constitute but a part of a structure. In such case it is well settled that the lien must cover the entire structure, and not the specific addition. ^'^ Thus where a — Boarding-house, and other improvements and structures, are put upon a mining claim, the material-man wull have a '■ Williams v. Mountaineer G. M. Co., 102 Cal. 134, 139, 34 Pac. Rep. 702, 36 Id. 388; Pacific Rolling M. Co. v. Bear Valley Irr. Co., 120 Cal. 94, 98, 52 Pac. Rep. 136, 65 Am. St. Rep. 158. Oregon. Compare: Giant Powder Co. v. Oregon Pac. R. Co., 42 Fed. Rep. 470, 8 L. R. A. 700. "= Helm V. Chapman, 66 Cal. 291, 5 Pac. Rep. 352, 5 W^est Coast Rep. 127, cited in Pennsylvania Steel Co. v. J. E. Potts S. & L. Co., 63 Fed. Rep. 11, 14, 11 C. C. A. 11, 22 U. S. App. 537; Silvester v. Coe Quartz M. Co., 80 Cal. 510, 512, 22 Pac. Rep. 217; Williams v. Mountaineer G. U. Co.. 102 Cal. 134, 142, 34 Pac. Rep. 702, 36 Id. 388. Uregron. See Watson v. Noonday M. Co., 37 Oreg. 287, 60 Pac Rep 994, 996. " Williams v. Mountaineer G. M. Co., 102 Cal. 134, 34 Pac. Rep. 702, 36 id. 388. See Cox v. Western Pac. R. Co., 44 Cal. 28; DicRenson v. Bolyer, 55 Cal. 285; Silvester v. Coe Quartz M. Co., 80 Cal. 510, 22 Pac. Kep. 217. t'olorndu. Structure: See Small v. Foley, 8 Colo. App. f35, 47 Puc. Rep. 64. Georgria. Farmers' L. & T. Co. v. Candler, 87 Ga. 241, 13 S. E Ren 660. Indiana. Midland R. Co. v. Wilcox, 122 Ind. 84, 23 N. E. Rep. 506. Ort'Kon seems to hold contrary to the general doctrine, and gives a lien on the specific structure in certain cases : See Watson v. Noon- day M. Co., 37 Oreg. 287, 60 Pac. Rep. 994. § 174 mechanics' liens. 140 right to a lien on the mining claim, not upon the boarding- house.^® Ice-room, built in and attached to the structure of a ware- house in such a manner that it cannot be removed without being torn to pieces, becomes a part of the warehouse, and a material-man is entitled to a lien upon the warehouse for the materials furnished for such ice-room.^^ Pipe line for an irrigation company assumed, but not decided, to be within provisions of mechanic's-lien law, and lien of material-man enforced. -° Poles set in ground, connected together by wire in the usual way for the transmission of electricity, for the pur- poses of light, heat, and power, are thought to constitute a " structure," within the provisions of the law providing a lien for mechanics, laborers, material-men, and others.-^ Reduction-works erected upon a mine gives the material- man a right to a lien upon the entire mining claim for the materials furnished therefor.-- Whether materials affixed to building or structure so as to become a part thereof, is a question of fact to be determined by the trial court from the evidence before it: See Bianclii v. Hughes, 124 Cal. 24, 28, 56 Pac. Rep. 610; Stevenson v. Woodward, 3 Cal. ^pp. 754, 86 Pac. Rep. 990. " Williams v. Mountaineer G. M. Co., 102 Cal. 134, 34 Pac. Rep. 702, 36 Id. 388. Oregon rule would g-ive lien upon separate structure erected: See Watson V. Noonday M. Co., 37 Oreg. 287, 60 Pac. Rep. 994. i» Stevenson v. Woodward, 3 Cal. App. 754, 86 Pac. Rep. 990. See § 189, post. =»> First Nat. Bank v. Perris Irr. Dist., 107 Cal. 55, 40 Pac. Rep. 45. See § 177, post. =' Forbes V. Willamette Falls Electric Co., 19 Oreg. 61, 23 Pac. Rep. 370 (Hill's Code, §3669), citing Helm v. Chapman, 66 Cal. 291, 5 Pac. Rep. 352, 5 West Coa.st Rep. 127. And see Giant Powder Co. v. Oregon Pac. R. Co., 42 Fed. Rep. 470, 473, 8 L. R. A. 700, and Pennsyl- vania Steel Co. V. J. E. Potts S. & L. Co., 63 Fed. Rep. 11, 11 C. C. A. 11, 22 U. S. App. 537, considering the foregoing cases. Teleplione line. Meelianic's lien on. In Roebling Sons Co. v. Bear Valley Irr. Co., 99 Cal. 488, 34 Pac. Rep. 80, an attempt was made to enforce a mechanic's lien upon a telephone line; but it seems that no question was raised as to whetlier or not the land was subject to the lien, the evidence not showing whether the materials were pur- chased for that particular line. 22 Williams v. Mountaineer G. M. Co., 102 Cal. 134, 34 l*ac. Rep. 702, 36 Id. 388. See further authorities in note 17, this chapter. Oregon rule gives lien on separate structure : See Watson v. Noonday M. Co., 37 Oreg. 287, 60 Pac. Rep. 994. 141 ON WHAT LABOR MUST BE DONE. §§ 175, 176 Stamp-mill erected upon a mining claim is governed by the same rules as a reduction-works erected thereon.-^ Swings, consisting of two upright posts in the ground and braced and connected at the top by cross-pieces with rings in them, and seats attached, are not " structures," within the meaning of the provision of the mechanic's-lien law.^* Tramway erected upon a mining claim, for use in con- nection with the work of operating the mine on said claim, is governed by the same rules as reduction-works and stamp- mills.-^ § 175. Structures enumerated in statute. Buildings being enumerated in the statute, other requisites necessary to en- title to a lien being present, the only question to be deter- mined is, whether the improvement is such a building or structure as comes within the purview of the statute giving the right to a lien.^*^ We have already referred to some buildings and structures not enumerated within the statute ; but there are others, as : Dance-hall, being a covered structure resting on sills, partly weather-boarded around the sides, without doors and windows, — quaere, whether a " building," within the mean- ing of the statute ; also, whether a " trade-fixture," under circumstances of the particular case.-^ Church is a " building," within the meaning of the me- chanic's-lien law, and is subject to the lien, not being exempt from execution. ^^ § 176. Same. Bridges are expressly provided for in sec- tion eleven hundred and ninety-three of the Code of Civil Procedure. Under the act of 1850, which gave a lien upon buildings and wharves, it was held that a bridge did not come Avithin the meaning of the statute.-® *^ See authorities in last note. " Lothian v. Wood, 55 Cal. 159, 163. ^ See authorities in note 22, this chapter, ao Kerr's Cyo. Code Civ. Proc, §§ 1183-1203a. =" Lothian v. Wood, 55 Cal. 159, 163. Colorutlo. Small V. Foley. 8 Colo. App. 435, 47 Pac. Rep. 64 (1589). '■"- Ucirrisburg- L. Co. v. Washburn, 29 Greg. 150, 160, 44 Pac. Rep. 390. ^ Burt V. Washington, 3 Cal. 246. §§ 177-179 MECHAXICS' LIENS. 142 § 177. Same. Aqueduct, ditch, and flume. A lien is now given, under the first clause of section eleven hundred and eighty-three of the Code of Civil Procedure, for work upon a flume, and it is within the meaning of the phrase, " building, improvement, or structure," as used in section eleven hundred and eighty-seven of the same code, relating to the evidence of the completion of the same.^° In an early case it was said : " The flumes constructed at different parts of the line cannot change the general character of the work as an excavation. These flumes were mere connecting links of the ditch, over ravines and gulches. As a ditch, then, the general work must be regarded, and, as such, the statute gives no lien upon it for labor bestowed, or materials furnished, in its con- struction. The language of the statute is, ' building, wharf, or other superstructure.' A ditch, of course, is not a build- ing, or a wharf, and in no sense can it be designated a super- structure." ^^ § 178. Same. Well. A lien is now given expressly on wells, in the first clause of section eleven hundred and eighty- three, relating to structures.^- Although it was intimated, as dictum, that this term was probably intended to include oil-wells,^^ yet a well is a structure or a part of a mining claim, depending upon the circumstances of the case.^'' § 179. Same. Tunnel. Tunnels are very often con- structed in mining claims, and in such cases it would seem that the principles applicable to mining claims would pre- 3" Giant Powder Co. v. San Diego F. Co., 88 Cal. 20, 22, 25 Pae. Kep. 976. Uitoli anil flume in mining claim: See Williams v. Mountaineer G. M. Co., 102 Cal. 134, 140, 34 Pac. Rep. 702, 36 Id. 388. Kew Mexico. See Ford v. Springer Land Assoc, 8 N. M. 37, 41 Pac. Rep. 541. " Ellison V. Jackson W. Co., 12 Cal. 542, 554 (1855); Horn v. Jones, 28 Cal. 195, 204. See Head v. Fordyce, 17 Cal. 149, 153 (1856). But see Reynolds v. Hosnier, 51 Cal. 205, 208. L'tali. Canal: Garland v. Irr. Co., 9 Utah 350, 34 Pac. Kep. 368. Wasliineton. Nelson v. Clerf, 4 Wash. 405, 30 Pac. Rep. 716. =- Kerr'js Cyc. Code Civ. Proc, S 1183, as amended in 1899. -3 Parke and Lacy Co. v. Inter Nos O. & D. Co., 1-47 Cal. 490, 493, 82 Pac. Rep. 51. '* See S 17 2. ante. \Vasbinf;tou. Lien allowed on a well; Lee v. Kimball (Wash.), 88 Pac. Rep. 1121. 143 ox WHAT LABOR MUST BE DONE. § 180 vail, to the same extent, at least, as in the case of wells and other structures enumerated in section eleven hundred and eighty-three."'' ;^ 180. Same. Machinery. The chapter ''■''' in which the provisions relating to mechanics' liens are found relates to liens upon real property, and it seems that under these sec- tions the work upon a machine must be upon it as a fixture to the realty.^" And where a machine does become a fixture, the work done or materials furnished for it may, under cer- tain circumstances, be regarded as done or furnished for the building or structure. ^^ •»■ See Williams v. Mountaineer G. M. Co., 102 Cal. 134, 140, 34 Pac. Rep. 702, 36 Id. 38S. As to «ork on a tunnel not in a mining claim, see Giant Powder Co. V. San Dieg-o F. Co., 88 Cal. 20, 22, 25 Pac. Rep. 976. See also All Louis V. Harwood, 140 Cal. 500, 74 Pac. Rep. 41 (tunnel to develop water impliedly held to fall within the tirst clause of § 1183 of Kerr's C'jc. Code Civ. Proc, on structures). See also § 153, ante. s*- Kerr's Cye. Code Civ. Proc, pt. ii, tit. iv, ch. ii, §§ 1183 et seq. ■" So intimated in March v. McCoy, 56 Cal. 85, 87 (1856). See, in this connection, Sidlinger v. Kerkow, 82 Cal. 42, 45, 22 Pac. Rep. 932. Liens upon niackines, which are personal property, are provided for under other laws: See Hendy v. Dinkerhoff, 57 Cal. 3, 40 Am. Rep. 107; such as the threshing-machine act, March 12, 1885 (Stats. 1885, p. 109), and the general common-law liens dependent upon pos- session, which have their enunciation in §§ 3049, 3051, and 3052, Kerr's Cye. Civ. Code, and notes. See also Jordan v. Myres, 126 Cal. 565, 566, 58 Pac. Rep. 1061. \Vashiu]u;ton. See Vendome T. B. Co. v. Schettler, 2 Wash. 457, 27 Pac. Rep. 76. ^* See Donahue v. Cromartie, 21 Cal. 80, and Hinckley v. Field's B. & C. Co., 91 Cal. 136, 27 Pac. Rep. 594. Macliinery furnished as a material-man: Roebling Sons Co. v. Humboldt E. L. & P. Co., 112 Cal. 288, 290, 44 Pac. Rep. 568. See Kennedy L. & O. Co. v. New Albany W. W., 62 Ind. 71. Pump for water-works: Goss v. Helbing, 77 Cal. 190, 191, 19 Pac. Rep. 277. See note 19 Am. St. Rep. 717. Things affixed to other works come within the rule : Donahue v. Cromartie, 21 Cal. 80. In MeGreary v. Osborne, 9 Cal. 119, under the act of 1856, which did not, in terms, give a lien upon a machine, an attempt was made to enforce a lien upon a machine affixed to the realty, and the court seems to hold that the machine came within the meaning of " super- structure " as used in the act. See §§ 166 et seq., ante. Well, machinery for: See Parke and Lacj' Co. v. Inter Nos O. & D. Co., 147 Cal. 490, 492, 82 Pac. Rep. 51. .Xrixona. A smelter is a "mill" or "manufactory," within the meaning of §2278, Rev. Stats.; McAllister v. Benson M. & S. Co., 2 Anz. 350, 16 Pac. Rep. 271. See also authorities in note 19, this note. §§ 381, 182 mechanics' liens. 144 § 181. Same. Railroad. A railroad is one of the struc- tures enumerated in section eleven hundred and eighty- three,^^ and much difficulty has been experienced in deter- mining the extent of liens on such structures; a matter which will be more fully developed at another place.*" § 182. Mining claims, and real property worked as a mine. Second clause of statute. The second clause of sec- tion eleven hundred and eighty-three is not restricted in its operation to mines of ore.*^ 3» Bringham v. Knox, 127 Cal. 40, 59 Pac. Rep. 198. See notes 7 Am. & Eng. Ann. Cas. 269-272, 8 L. R. A. 700. Hawaii. A portion of a railroad, and not the whole railroad, held to be a "structure": Hackfeld v. Hilo R. Co., 14 Hawn. 448, 455. Oregon. Lien on railroad, under Laws 18S9, p. 75: See Coleman V. Oregonian R. Co., 25 Oreg. 286, 35 Pac. Rep. 656. Under Laws 1885, p. 13, railroad was included under the term "other structures": Bau v. Columbia S. R. Co., 117 Fed Rep. 21, 30, 54 C. C. A. 407, reversing s. c. 109 Fed. Rep. 499. Act of 1S89. Considering the peculiar provisions of the act of 1889, the most obvious reason for its passage is that the legislature thereby intended to take the subject of claims against railway cor- porations for materials and labor furnished out of tlie operation of the general lien law of 1885, and put it under this special act, which does not require any notice of the claim to be filed with any clerk or other officer, and provides a special proceeding, in which all such claims must be enforced as in one suit. Railway is a structure: Giant Powder Co. v. Oregon Pac. R. Co., 42 Fed. Rep. 470, 472, 8 L. R. A. 700, di-stiuguislied in Pennsylvania S. Co. v. J. E. Potts S. & L. Co., 63 Fed. Rep. 11, 11 C. C. A. 11, 22 U. S. App. 537. AVashington. Under § 1^57, Code of 1881, which enumerated as objects " railroads " and " any other structure," it was held that there was no lien upon a street-railway, where the owner has no interest in the land over which it is laid, but a mere license, as the street-railway company owns the structure laid by it on the higliway and a iranchise to collect fares, but such license is not a distinct easement, and hence such railway is not a " structure," there being no lien upon a structure where there is none upon the land: Kellogg v. Littell & S. Mfg. Co., 1 Wash. 407, 25 Pac. Rep. 461; and a distinction was drawn between " street-railways " and " steam- railroads " in this respect: Front Street C. R. Co. v. Johnson, 2 Wash. 112. 25 Pac. Rep. 1084, 11 L. R. A. 693: Pacific R. M. Co. v. James Street Consol. Co., 68 Fed. Rep. 966, 16 C. C. A. 68, 29 U. S. App. 698. But see New England Engineerlates that the lien shall attach to the property of the owner, not to the property of some other person, and the intention of the parties, as heretofore stated, will, in general, be regarded, as far as the rights of claimants are concerned. ^^ In some of the jurisdictions herein considered, the improvement constructed is by the statute regarded as a severable fixture, at least for certain Rep. 380 (concurring opinion); Jordan v. Myres, 126 Cal. 565, 569, 58 Pac. Rep. 1061. luteutiou of parties determines : See Fratt v. Whittier, 58 Cal. 126, 41 Am. Rep. 251; Lavenson v. Standard S. Co., 80 Cal. 245, 22 Pac. Rep. 184. 13 Am. St. Rep. 147. See also notes 39 Am. St. Rep. 172, 3 L. R. A. 34. Idaho. Mill as fixture to mine: See Thompson v. Wise Boy M. & M. Co., 9 Idaho 363, 74 Pac. Rep. 958, 960. Utah. Sanford v. Kunkel, 85 Pac. Rep. 363, 1012 (building- as fix- ture). <>« Stevenson v. Woodward, 3 Cal. App. 754, 86 Pac. Rep. 990; Jordan V. Myres, 126 Cal. 565, 567, 58 Pac. Rep. 1061. " Stevenson v. Woodward, 3 Cal. App. 754, 86 Pac. Rep. 990. Between parties other than claimants: Colorado. Machinery placed by lessee on mine a trade-fixture, which is removable: Updegraff v. Lesem, 15 Colo. App. 297, 62 Pac! Rep. 342. And see Royce v. Latshaw, 15 Colo. 420, 62 Pac. Rep. 627; Ross V. Campbell, 9 Colo. App. 38, 47 Pac. Rep. 465. Idaho. Bing-ham County A. Assoc, v. Rogers, 7 Idaho 63, 59 Pac. Rep. 931 (relation of parties to be considered). Oregon. Alberson v. Elk Creek G. M. Co., 39 Oreg. 552, 65 Pac. Rep. 978 (personalty placed on mine). Olilahoina. Bridges v. Thomas, 8 Okl. 620, 58 Pac. Rep. 955 (the presumption being that a building is part of the land, and real property). WaMhingrton. Hall v. Law Guarantee & T. Soc, 22 Wash. 305, 60 Pac. Rep. 643 (between mortgager and mortgagee); Neufelder v.' Third Street & S. R., 23 Wash. 470, 63 Pac. Rep. 197, 83 Am. St. Rep. 831, 53 L. R. A. 600 (machinery in a planing-mill) ; Philadelphia M. & T. Co. V. Miller, 20 Wash. 607, 56 Pac. Rep. 382, 72 Am. St. Rep. 138, 44 L. R. A. 559 (water-heater, bath-tub, mantels). ^* Stevenson v. Woodward, 3 Cal. App. 754, 86 Pac. Rep. 990. " Jordan v. Myres, 126 Cal. 565, 567, 58 Pac. Rep. 1061. §187 IIECHANICS' LIENS. 150 purposes of the raechanic's-lien law. But in California the improvement is, in general, deemed a fixture to the land."" «» In West Coast L,. Co. v. Apfield, 86 Cal. 335, 338, 24 Pac. Rep. 993, it was said: "By its [the lease's] terms, he [the owner of the fee] has demised aU that there is of tlie ' real property,' with its appurtenances. That includes not only the land, but everything that is afflxed, incidental, or appurtenant to the land: Civ. Code, § 658. That which is afflxed includes that which is ' imbedded into it, as in the case of walls, or permanently resting upon it, as in the case of 'buildings': Civ. Code, §660. And that is deemed incidental or appurtenant to land which is by right used with the land for its benefit: Civ. Code, § 662. ... It was a large and substantial structure, not only apparently 'permanently resting upon' the lot, but the proof shows that it was resting upon mudsills ' imbedded in it,' and also that, when completed, it was ' used with the land.' To all appearance, the lot and building was a single entity of ' real property.' Again, as we have before said, tliere was neitlier a reservation of right nor a grant of right to remove any buildings; but, on the contrary, there was an express covenant to surrender, at the expiration of the term, ' in as good state and condition as reasonable use and wear thereof will permit, damage by the elements alone excepted.' This at least was an express provision negativing the right to remove. ' A tenant for years or at will has no other rights to the property than such as are given to him by the agree- ment or instrument by which his tenancy is acquired, or by the last section': Civ. Code, §820. The preceding section, being the one referred to as 'the last section,' gives him the right to 'occupy the buildings, take the annual products of the soil, work mines and quarries open at the commencement of his tenancy.' Nowhere does the code give the right to remove buildings, unless that right is ex- pressly granted or reserved in the instrument creating the tenancy, or the buildings are such, or so erected, as not to partake of the realty. ' When a person affixes his property to the land of another, without an agreement permitting him to renaove it, the thing affixed, except as provided in § 1019, belongs to the owner of the land, unless he chooses to require the former to remove it': Civ. Code, §1013. 'A tenant may remove from the demised premises, any time during the continuance of his term, anything affixed thereto for purposes of trade, manufacture, or domestic use, if the removal can be effected without injury to the premises, unless the thing has, by the manner in which it is affixed, become an integral part of the premises': Civ. Code, § 1019. This would hardly autliorize the removal of a four-story building erected to be used for stores and as a lodging and boarding house." See also Lavenson v. Standard Soap Co., 80 Cal. 245, 22 Pac. Rep. 184, 13 Am. St. Rep. 147. Montana. See Stenberg v. Liennemann, 20 Mont. 457, 52 Pac. Rep. 84, 63 Am. St. Rep. 636. Orevron. "The weight of modern authority, keeping in mind the exceptions as to constructive annexation admitted by all the authori- ties to exist, seems to establish the doctrine that the true criterion of an irremovable fixture consists in the united application of several tests: 1. Real or constructive annexation of the article in question to the realty. 2. Appropriation or adaptation to the use or purpose of that part of the realty with which it is connected. 3. The inten- tion of the party making the annexation to make the article a permanent accession to the freehold: this intention being infei-red from the nature of the article affixed, the relation and situation of 151 ox WHAT LABOR MUST BE DONE. §§ 188, 189 § 188. Lien primarily on structure. It has been seen, moreover, that the lien, under the California statute, is pri- marily upon the structure, and not upon the land, and that the court, under certain circumstances, when the land is not affected by the lien, may order the structure to be severed from the realty, and sold apart from the same ; the court say- ing, " When the building is destroyed by fire before comple- tion, there can be no lien aganist the land on which it stood." ^^ § 189. Work upon fixtures, how deemed. Work done upon fixtures is deemed to be done upon the real property to which the same are alfixed.^- An ice-box so constructed that it could not be removed from the building without tearing it to pieces, and built into the warehouse as a part thereof, and securely attached so the party making- the annexation, and the policy of the law in rela- tion thereto, the structure and mode of the annexation, and the pur- pose or use for whicli the annexation has been made": Helm v. Gilroy, 20 Oreg. 517, 26 Pac. Rep. 851. Under these principles it was held that, as between the claimant and the lessee, wainscoting- attached with screws to strips nailed to the wall of a room to be used as a saloon by a lessee, and oak veneering- nailed to the walls, etc., are not removable trade-fixtures, but form alterations of the building, and the lessee's interest therein was bound by a mechanic's lien for affixing the same: Matthiesen v. Arata, 32 Oreg. 342, 50 Pac. Rep. 1015, 67 Am. St. Rep. 535. See, as to rule, Helm v. Gilroy, 20 Oreg. 517, 26 Pac. Rep. 851; Honeyman v. Thomas, 25 Oreg. 539, 36 Pac. Rep. 636. " Humboldt L. M. Co. v. Crisp, 146 Cal. 686, 689, 2 Am. & Eng. Ann. Cas. 811, 81 Pac. Rep. 30, 106 Am. St. Rep. 75. See § 16, ante. Lien upon liiiilding distinct from land: See notes 2 Am. & Eng. Ann. Cas. 689-691, 62 L. R. A. 369, 383. A|i|>urtenanoeiii: Note 15 L. R. A. 653. New Mexico. See Armijo v. Mountain E. Co., 11 N. M. 235, 67 Pac. Rep. 726. I tail. See Sanford v. Kunkel, 85 Pac. Rep. 363, 1012. "' Mandary v. Smartt, 1 Cal. Ap"p. 498, 500, 82 Pac. Rep. 561. Am to counters, sideboards, siielving, ice-box, see Sidlinger V. Kerkow, 82 Cal. 42, 45, 22 l^ac. Rep. 932. See " Presumptions on Appeal," § 974, post, and Bianchi v. Hughes, 124 Cal. 24, 56 Pac. Rep. 610. See also "Extent of Lien," §§438 et seq. ; "Machinery," §445, post. Doubted whetiier a dance-hall, consisting of a covered structure resting on sills, partly weather-boarded, open sides, and without doors or windows, is a fixture, within the meaning of the mechanic's-lien law. so as to allow a lien for the work of construction thereof: Lotliian v. Wood, 55 Cal. 159, 163. See Evans v. Judson, 120 Cal. 282, 285, 52 Pac. Rep. 585. §§ 190, 191 mechanics' liens. 152 that the same could not be removed without injury thereto, nor without injury to the warehouse, was held to be a part of the building, and sufficient to support a lien.^^ § 190. The severance of buildings from the freehold proprio vigore changes the character of the houses from real to personal property, irrespective of the means by which it was accomplished.*'* Where a house is moved to a lot, and, by agreement, is to remain on the lot only a few days, and rests on mudsills on the top of the ground, the house is per- sonal property, and a lien for the material with which the house was built cannot be enforced against the land upon which it thus temporarily rested.*'^ § 191. Work on fixtures in mine. In California, a dis- tinction must always be observed between the fixtures on a mining claim, under section six hundred and sixty-one of the Civil Code, which would be personal property, and fixtures New Mexico. Post v. Miles, 7 N. M. 317, 34 Pac. Rep. 586: "The statute does not require, as a condition upon which the lien on the realty is made to depend, that the improvements should become a part thereof. Ihe lien attaches to the " structure,' and to the land upon which it is 'constructed.'" See also Mountain E. Co. v. Miles, 9 N. M. 512, 56 Pac. Rep. 284, 286, and Post v. Fleming, 10 N. M. 476, 62 Pac. Rep. 1087. Oregon. See Bank of Idaho v. Malheur Co., 30 Oreg. 420, 45 Pac. Rep. 781, 35 L. R. A. 141. But see also Patterson v. Gallagher, 25 Oreg. 227, 35 Pac. Rep. 454, 42 Am. St. Rep. 794. Washington. Under the Code of ISSl, cli. cxxxviii, no lien could be obtained upon personal property unless it had become a part of the land: Schettler v. Vendome Turkish B. Co., 2 Wash. 457, 27 Pac. Rep. 76; Kellogg v. Littell & S. Mfg. Co., 1 Wash. 407, 25 Pac. Rep. 461 (there being no express provision of the statute allowing a lien upon the building apart from the land). Both of these cases are explained in Post v. Miles, 7 N. M. 317, 34 Pac. Rep. 586. See also Front Street C. R. Co. v. Johnson, 2 Wash. 112, 25 Pac. Rep. 1084, 11 L. R. A. 693. Wj-onilng. See Fein v. Davis, 2 "^^yo. 118, 123 (1871), as to enfor- cing a lien upon the building as separate from the land. <==' Stevenson v. Woodward, 3 Cal. App. 754, 86 Pac. Rep. 990. See § 174, ante. " Stowell V. Waddingham, 100 Cal. 7, 34 Pac. Rep. 436; Buckout v. Swift. 27 Cal. 433, 87 Am. Dec. 90. See Moisant v. McPhee, 92 Cal. 76, 28 Pac. Rep. 46. «5 Fresno L. & S. Bank v. Husted (Cal., June 17, 1897), 49 Pac. Rep. 195. Whether a lien could be enforced against the house as personal property, or otherwise, or upon the lot upon which it was originally constructed, was not decided. Compare: Stowell v. Waddingham, 100 Cal. 7. 34 Pac. Rep. 436. New Mexico. See Post v. Miles, 7 N. M.- 317, 34 Pac. Rep. 586. 153 ON WHAT LABOR MUST BE DONE. § 192 under section six hundred and sixty. Section six hundred and sixty-one of said code provides: " Sluice-boxes, flumes, hose, pipes, railway tracks, cars, blacksmith-shops, mills, and all other machinery or tools used in working or developing a mine, are to be deemed affixed to the mine." Under this section, work, such as sharpening picks and drills, and labor on machinery, such as iron pipes, " giants," etc., used in developing a mine, while so used upon the mine, is work upon the mine, and a sufficient basis to support a lien."*' But the machinery and tools must be actually used in the work or development of the mine.*'^ § 192. Public property.*'* Suits may be brought against the state in such manner and in such courts as shall be 86 Malone v. Big Flat G. M. Co., 76 Cal. 578, 583, 18 Pac. Rep. 772. «' Hamilton v. Delhi M. Co., 118 Cal. 148, 50 Pac. Rep. 378. See Jordan v. Myres, 126 Cal. 565, 567, 58 Pac. Rep. 1061. Colorado. The intention of the party to make a permanent acces- sion to the freehold, and the iise to which the article is to be applied, are controlling questions in determining whether it is a fixture. If it constitutes a part of a plant of machinery necessary to the suc- cessful operation of the whole, or if its use is essential to the operation of some part of the machinery which is physically attached to the freehold, then it may in many cases be properly termed a fixture, even though it wholly lacks a permanent physical attachment to the realty. Each case is one of mixed law and fact. Colorado statute (Gen. Stats., §2148) very liberal: Gary Hardware Co. v. McCarty, 10 Colo. App. 200, 220, 50 Pac. Rep. 744 (1889) (a number of illustrations are given). Orej^on. A derrick erected by a tenant in a quarry, by placing a post upright in a socket upon the ground, with guy-ropes extending from its top to stakes set in the ground, is a removable trade-fixture, and not subject to lien: Honeyman v. Thomas, 25 Greg. 539, 36 Pac. Rep. 636. «» Public buildings and works, acts concerning: See Henning's General Laws, pp. 1087-1095, 1099-1105; County Government Act, Henning's General Laws, pp. 189, 196 (§25, subd. 8), 206 (§37); Kerr's Cyc. Pol. Code, §§ 3233, 3234, 3244, 3245, and notes. See also McPherson v. San Joaquin Co. (Cal.), 56 Pac. Rep. 802. Public works, and mechanics' lien.s: See 4 Current Law, 1124, also notes 35 L. R. A. 141, and 27 Am. Rep. 83. Contractor's bond on public work: See Union S. M. Works v. Dodge, 129 Cal. 390, 394. 62 Pac. Rep. 41; People's L. Co. v. Gillard, 136 Cal. 55, 61, 68 Pac. Rep. 576. Colorado. Contractor's bond on public work: People v. Dodge, 11 Colo. App. 177. Washington. Contractor's bond on public work: Crane Co. v. .i General La-n-s, p. civ. '" Kerr's Cyc. Code Civ. Proc, § 690, subd. 15 (as amended March 22, 1907), and note. " Cal. Const. 1879, art. xx, § 15, Henning's General Lavrs, p. civ. " Kerr's Cyc. Code Civ. Proc, § 1183. " Kruse v. Wilson (Cal. App.), 84 Pac. Rep. 442; Mayrhofer v. Board of Elducation, 89 Cal. 110, 112, 26 Pac. Rep. 646, 23 Am. St. Rep. 451. See Board of Education v. Blake (Cal.), 38 Pac. Rep. 536. Colorado. Floorman v. School Dist., 6 Colo. App. 319, 40 Pac. Rep. 469. Montana. Wliiteside v. School Dist., 20 Mont. 44, 49 Pac. Rep. 445. Oregon. Portland L. Co. v. School Dist., 13 Oreg. 283, 10 Pac. Rep. 350. Utah. Board of Education v. Pressed Brick Co., 13 Utah 211, 44 Pac. Rep. 709 (1890). AVashinf^ton. But contra, apparently under special statutes: Maxon v. School Dist., 5 Wash. 142, 31 Pac. Rep. 462, 32 Pac. Rep. 110. '■* Bates v. Santa Barbara Co.. 90 Cal. 543, 546, 27 Pac. Rep. 438. But in this case the special garnishment proceeding of the mechanic's- lien law was allowed as against tlie contractor. See " Notice," §§ 547 et seq., post. Orcjion. Nor was such lien allowed against a public bridge, although "bridges" are enumerated among the obje.cts in § 3669, Hill's Ann. Laws: Bank of Idaho v. Malheur County, 30 Oreg. 420, 45 Pac. Rep. 781, 35 L. R. A. 141. " Griffith V. Happersberger, 86 Cal. 605, 613, 25 Pac. Rep. 137, 487. '« See Bates v. Santa "Barbara Co., 90 Cal. 543, 546, 27 Pac. Rep. 438. and "Notice to Owner," §$ 547 et seq., post. 155 BUILDING CONTRACTS — GENERAL PRINCIPLES. §193 CHAPTER XI. BUILDING CONTRACTS. GENERAL PRINCIPLES. § 193. General principles applicable. § 194. Term " original contract " not used in the statute. § 195. Essentials of contract. How treated herein. § 196. Definition of " contract." § 197. Definition of " building contract." § 198. Parties to contract. Competency. § 199. Same. Guardian of minor. § 200. Same. Executor. § 201. Same. Corporations. § 202. Same. Owner. Contract not binding, contractor's lieu fails. Implied contract. § 203. Same. Owner. § 204. Same. Owner. Street-work. § 205. Contract made with reference to statute. § 206. Consent. § 207. Same. Fraud. Mistake. § 208. Same. Indefiniteness of contract. False reference to plans and specifications. § 209. Consideration. § 210. Ratification. § 211. Definition of " original contract." § 212. Same. Owner, laborer, and material-man. § 213. Same. Subcontractor's contract. § 214. Same. Definition of " statutory original contracts " and " non-statutory original contracts." § 215. Same. Contract for street-work. § 193. General principles applicable.' The general i)riii- eiples applicable to contracts are equally so to building eon- tracts between the owner and his contractor, and between ' Contract to build in lease: McGlynn v. Moore, 25 Cal. 384; Chip- man V. Emeric, 5 Cal. 49. 'iiiitliiiu :;uil t-onsli ii<< ion <-oii( r:iol.s: .See .3 Current Law. .").')(>. Mechanic's lien, under c«»ntraot made or to be performed in another .state: See note 38 L. R. A. 43 0. Contract for public work: See Newport W. & L. Co. v. Drew, 125 Cal. 585, 58 Pac. Rep. 187. Entry in the minutes of a school board, merely showing that the pluiis .submitted to it had been adupteil. expresses no contract: Todd V. Board of Education, 122 Cal. 106, 54 Pac. Rep. 527. See § 192, ante. §§ 194-196 mechanics' liens. lf>6 the owner and his material-men or laborers, except where the statute has changed the rule.- It is here intended to consider only those principles peculiar to the contract under discussion, § 194. Term " original contract " not used in the statute. The California statute nowhere uses the expression " origi- nal contract," although it is frequently found in the decis- ions construing the statute. In the chapter on mechanics' liens is often found the terms, " such contracts," " " the contract," * and " his [the original contractor's] contract." ^ The statute, however, frequently speaks of the " original contractor." " § 195. Essentials of contract. How treated herein. The essentials of a common-law contract must, of course, exist,'' not alone between the original contractor and owner, but also between any claimant and the person with whom he stands in privity. While a sufficient common-law contract may exist between such persons, it does not necessarily follow that an adequate contractual relation is established upon which to base a lien of the contracting person or his subelaimants. The adjudged law, so far as it relates to the matters treated herein, will be considered in detail in its appropriate place. § 196. Definition of " contract." A contract is an agree- ment to do or not to do a certain thing ; '^ and it is essential to the existence of a contract that there shall be : 1. Parties Contract for drawing plans and speeifloatlons in anticipation of proceeding's for the building of a public-school house: See Brown v. Board of Education, 103 Cal. 531, 535, 37 Pac. Rep. 503. See also 7 Am. & Eng. Ann. Cas. 617. 2 See West Coast L. Co. v. Knapp, 122 Cal. 79, 54 Pac. Rep. 533, 53.4. 3 Kerr's Cyc. Code Civ. Proc, §§ 1183, 1184. This apparently refers to statutory original contract. * Kerr's Cyc. Code Civ. I'roc, § 1184. 5 Kerr's Cyc. Code Civ. Proc, §S 1187, 1193. » See "Original Contractor," §§45-65, ante. ' See Kerr's Cyc. Civ. Code, §§ 1427-1701, and notes. Oregon. Requisites of contract under act of 1874: See Tatum V. Cherry, 12 Oreg. 135, 6 Pac. Rep. 715. * Kerr's Cyc. Civ. Code, § 1549, and note. 157 BUILDING CONTRACTS GENERAL PRINCIPLES. §§197-199 capable of contracting; 2. Consent of the parties; 3. A laAvful object ; and 4. A sufficient cause or consideration.'* § 197. Definition of " building contract." In the absence of statutory qualifications, a " building contract " may be defined as a legal agreement between two or more persons, capable of contracting, for the construction, alteration, addi- tion to, or repair of a structure or other work as a fixture to the realty.^" § 198. Parties to contract. Competency. There must be parties capable of contracting; ^^ and, so, officers of the court, without the direction of the court, cannot, as a rule, bind property in their charge by contracts which would otherwise impose a mechanic's lien upon the same.^^ § 199. Same. Guardian of minor. A guardian of a minor cannot subject the estate and property of his ward to a mechanic's lien without first obtaining an order of court authorizing the guardian to make the contract; and the infant is not bound by the guardian's contract for the erec- tion or repair of the building.^^ 3 Kerr's Cye. Civ. Cotle, § 1550, and note. i» See "Nature of Labor," §§130-165, ante; "Object of Labor," §§ 166-192, ante. Utah. A contract is an agreement between two or more per- sons, for a valuable consideration, to do or not to do some particular tiling; and when the undertaking' refers to constructing, erecting, or repairing an edifice, or other work or structure, it may be called a building contract: Utah L. Co. v. James, 25 Utah 434, 71 Pac. Rep. 986. " Persons able to contract: See Kerr's Cyc. Civ. Code, §§ 25, 33, 35, and notes. As to agent, see " Agency," §§ 572 et seq., post. " Colorado. Those who furnish supplies to, or perform labor for, a receiver are, in law, supposed to know whether he possesses the powers which he assumes to exercise: Hendrie & B. Mfg. Co. v. Parry (Colo.), 86 Pac. Rep. 113. ''■ Fish V. McCarthy, 96 Cal. 484, 31 Pac. Rep. 529, 31 Am. St. Rep. 237; Hunt v. Maldonado, 89 Cal. 636, 27 Pac. Rep. 56; Guy v. Du Uprey, 16 Cal. 195. 76 Am. Dec. 518. Nor is there any eqiiitaltle lien on the property for the value of the improvements, such party being fully informed as to the title and condition of the property: Guy v. Du Uprey, 16 Cal. 195. 76 Am. Dec. 518. Xew Mexieo. But see, as to contract of guardian of minors. Arniijo v. Mountain E. Co.. 11 N. M. 235. 67 Pac. Rep. 726, 729; Post V. Miles. 7 N. M. 317, 34 Pac. Rep. 586. {;§ 200.201 mechanics' LIENS. 158 § 200. Same. Executor. An executor of a will, without ;iii order of court therefor, cannot enter into a valid eon- tract for the improvement of the street in front of the property of the estate.^* The executor can make no contract which would give a contractor's laborers in a mine, known to be the property of the estate, a right to file liens on the same. A contract to work such property, signed by a person as executor, if it is notice to claimants at all, is notice of everything that it contains, and would prevent the lien from coming into existence. ^^ Where the executor of an estate makes an unauthorized original contract, a purchaser of the property can, during the performance of the work, agree to pay for the work, but such agreement would not authorize a mechanic's lien, even for work done after the purchase, where the claim of lien simply states that the purchaser agreed to pay for the work, nor, under such circumstances, could there be an equitable lien, where there was no agreement, express or implied, on the part of the purchaser to create the lien.^® § 201. Same. Corporations. Corporations can contract in same manner as natural persons ; but where the president and secretary of a corporation enter into a contract for the erection of a building, for and on behalf of the corporation, with a firm of which the president is a member, the contract will be held void, as in breach of the fiduciary relation of the president to the stockholders, and will confer no right to a mechanic's lien ; so strict is the rule in this regard, that no inquiry can ])e made into the fairness of the contract thus entered into. While the firm cannot enforce the contract, " San Francisco Pav. Co. v. Fairfield, 134 Cal. 220, 66 Pac. Rep. 255. Arizona. Lien against property of an estate under a contract made with an administrator: See point raised, but not decided, in Bogan V. Roy (Ariz.), S6 Pac. Rep. 13, 15. Oregon. Lien against estate of lessor: See Hobkirk v. Portland Nat. Baseball Club, 44 Oreg. 605, 76 Pac. Rep. 776. Wyoming. As to administi-atrix. see Seibel v. Bath, 5 Wyo. 409, 40 Pac. Rep. 756. 15 Chappius V. Blankman, 128 Cal. 362, 364, 60 Pac. Rep. 925; San Francisco Pav. Co. v. F:.nrfield. 134 Cal. 220, 66 Pac. Rep. 255. « San Francisco Pav. Co. v. Fairfield, 134 Cal. 220, 222, 224, 225, 66 Pac. Rep. 255. 15U BUILDING COxXTKACTS GENERAL PRINCIPLES. §§ 202, 203 it can recover, as upon a quantum meruit, for what the corporation actually received in value under the invalid contract. ^■^ § 202. Same. Owner. Contract not binding, contractor's lien fails. Implied contract. If the original express contract is not binding, the lien of the contractor necessarily fails. '^ There can be no implied contract where the work is done against the express order of the owner. ^^ § 203. Same. Owner. It is not necessary that the person contracting for the erection of the building shall at the time be the owner of the realty upon which the building is to be erected,-" so far as the mere validity of the contract " Sims V. Petaluma G. L. Co., 131 Cal. 656, 659, 63 Pac. Rep. 1011, reversing 62 Id. 300. See San Diego v. San Diego & L. A. R. Co., 44 Cal. IDG; Wilbur v. Lynde, 49 Cal. 290, 19 Am. Rep. 645; Farmers* & M. Bank v. Downey, 53 Cal. 466, 31 Am. Rep. 62; Graves v. Mono Lake H. M. Co., 81 Cal. 303, 22 Pac. Rep. 665; Wickersham v. Crittenden, 93 Cal. 17, 29, 28 Pac. Rep. 788; Berka v. Woodward, 125 Cal. 119, 57 Pac. Rep. 777, 73 Am. St. Rep. 31, 45 L. R. A. 420; Aberdeen R. Co. v. Blaikie, 1 Macq. 461. See Kerr's Cyc. Civ. Code, §§ 2229, 2230, and notes. ^Iftntanii. Before a corporation can be bound by an agreement made by one or two of its trustees, the burden is on the plaintiff to show the authority of such trustee or trustees to so bind the cor- poration, or that the corporation ratified it: Wagner v. St. Peter's Hospital, 32 Mont. 206, 79 Pac. Rep. 1054. Wa-shington. The contract with a foreign corporation to build is not void, although it has not complied with the statute as to the appointment of an agent, etc.: Dearborn Foundry Co. v. Augus- tine, 5 Wash. 67, 31 Pac. Rep. 327. But see Kerr's Cjc. Civ. Code, §§ 405-410, and notes. IS FLsh V. McCarthy, 96 Cal. 484, 485, 31 Pac. Rep. 529, 31 Am. St. Rep. 237. Guardian cannot .subject >vard'.s uroperty to mechanic's lien: Fish v. McCarthy, supra. See Morse v. Hinckley, 124 Cal. 154, 158, 56 Pac. Rep. 896. '" De Prosse v. Royal Eagle Dist. Co., 135 Cal. 408, 410, 67 Pac. Rep. 502 (architect's services). 2" Pacific Mut. L. Ins. Co. v. Fisher, 109 Cal. 566, 569, 42 Pac. Rep. 154. See Dunlop v. Kennedy (Cal.), 34 Pac. Rep. 92, 96; rehearing granted, in which it was held that the statute does not require that tlie contract for erecting a building shall be signed by the owner; it is sufficient if it be signed by the reputed owner. ^leelisinio's lieu on land of nisirried »ouian: See note 10 L. R. A. 33. lAen governed by i'on«ra<'( with owner: See note 13 L. R. A. 702. N'eces.sitie.s «»f eontriiet with aiul eoiiNent of owner: See note 11 L. R. A. 74 2. nautfliters, as aK'ent o»" owner in making contract, not liable: See Schindler v. Green (Cal. A^p.), 82 Pac. Rep. 341, s. c. 149 Cal. 752. o2 Pac. Rep. 631. § 203 mechanics' liens. 160 is concerned, bnt he must have a sufficient legal relation to the property and owner, either by way of privity or Ala.ska. The owner must have knowledge of the building con- tract, even if made by a person in possession under a contract of purchase, or the contract must be made at the instance of the owner: Russell v. Hayner, 130 Fed. Rep. 90, 64 C. C. A. 424, 2 Alas. 703 (Dig-.) (under Civ. Code, § 265, act .Tune 16, 1900, 31 Stats, at L., p. 535). Colorado. The lien is founded on a contract, either directly or indirectly: Wilkins v. Abell, 26 Colo. 462, 58 Pac. Rep. 612; Little Valeria M. & M. Co. v. Ingersoll, 14 Colo. App. 240, 59 Pac. Rep. 970. Contract with le.s.see: See Wilkins v. Abell, 26 Colo. 462, 58 Pac. Rep. 612; Morrell H. Co. v. Princess G. M. Co., 16 Colo. App. 54, 63 Pac. Rep. 807; Schweitzer v. Mansfield, 14 Colo. App. 236, 59 Pac. Rep. 843. The ^vork must be done or materials furnished under contract, express or implied, with tlie owner of the property upon which the lien is claimed, and the claimant must ascertain for himself whether the person with whom he deals holds such a relation to tlie work being done on the property as to entitle him to a lien therefor: David- son V. Jennings, 27 Colo. 187, 60 Pac. Rep. 354, 83 Am. St. Rep. 49, 48 L. R. A. 340; Griffin v. Seymour, 15 Colo. App. 487, 63 Pac. Rep. 809; Rico R. & M. Co. V. Musgrave, 14 Colo. 79, 23 Pac. Rep. 458, 459.' The act of 1883 authorized a lien only under a contract witli the owner, and persons holding a vendor's lien, in possession of the property, not being owners thereof, could not create a lien: Griffin V. Seymour, 15 Colo.. App. 487, 63 Pac. Rep. 809. Hawaii. A material-man's lien is dependent upon, though not created by, contract. A mere trespasser has no lien, under the statute, for materials furnished and used in a building on another's land. There must be a contract with the owner. The contract with the owner may be either direct with the mechanic or material-man who claims a lien, or it may be with an intermediate contractor, in which latter case there may be a second contract, between the con- tractor and subcontractor or material-man: Allen v. Reist, 16 Hawn. 23. AVhat entitles to lien. It is not the contract for erecting or repair- ing the building that creates the lien, but the use of the materials furnished or labor performed by the contractor; the lien is brought into existence by virtue of the statute; and the contract is entered into presumably in view of and with reference to the statute: Hackfeld v. Hilo R. Co., 14 Hawn. 448, 451. Idaho. A mere trespasser is not the agent of the owner, and a person who unlawfully ousts the owner cannot create debts which will form tlie basis of a lien upon a mining claim: Idaho G. M. Co. V. WMnchell, 6 Idaho 729, 59 Pac. Rep. 533, 96 Am. St. Rep. 290. Oregon. Under § 3669, Hill's Ann. Laws, the original contractor being the statutory agent of the owner, it was held that the contract was entered into between the claimants and the owner: Cooper Mfg. Co. V. Delahunt, 36 Oreg. 402, 51 Pac. Rep. 649 (doctrine questionable). Under an early statute it was necessary for the contract to be made witi. the owner or his agent: Wilcox v. Keith, 3 Oreg. 372. Oklahoma. Contract with husband, as statutory agent of wife: See Limerick v. Ketcham (Okl.), 87 Pac. Rep. 605. Utah. A contract, express or implied, for the building must have been made with the owner of the land or his authorized agent, to entitle to the lien claimed: Eccles L. 'Co. v. Martin (Utah), 87 Pac. 161 BUILDING CONTRACTS — GENERAL PRINCIPLES. §§204,205 estoppel, to render such contract valid, under the general principles of law. The effect of such contract as a basis for liens of sub- claimants is apart from the present inquiry, and will be considered elsewhere. Effect of contract on the interest of the owner in the property, as well as his personal liability under a con- tract with a person in privity with the owner, is considered under the subjects of the " Obligations of the Owner," -^ the " Extent of the Lien," -^ and in the sections -' devoted to the doctrines concerning agency.-* § 204. Same. Owner. Street-work. The statute ^^ pur- porting to give a lien for a street improvement " at the request of the reputed owner of any lot " covers the case of the request of the real owner.-" § 205. Contract made with reference to statute. The parties to a valid statutory original contract are presumed to contract with reference to the statute. The court say : " The legislature may prescribe the form in which contracts shall be executed in order that they may be valid or binding, but it cannot limit the right of parties to incorporate into their contracts respecting property, otherwise valid, such terms as may be mutually satisfactory to them." -' It has Rep. 713, 715; Morrison v. Clark, 20 Utah 432, 59 Pac. Rep. 235 (hus- band and wife). AVa-Mliin^on. Work done at the request of the original con- tractor, held to be done at the request of the owner, under § 5900, Ballinger's Ann. Codes and Stats.: Peterson v. Dillon, 27 Wash. 78, 67 Pac. Rep. 397. Contract by man who subsequently marries owner; former held not responsible, under the circumstances of the case: Anderson v. Hilker, 38 W^ash. 632, 80 Pac. Rep. 848. Lien on community property; See Powell v. Nolan, 27 Wash. 318, 67 Pac. Rep. 712. HuNband and ^vife hh parties to contract, community property: See Peterson v. Dillon. 27 Wash. 78, 67 Pac. Rep. 397. 2' See §§ 523 et seq., post. ^ See §§ 438 et seq., post. » See §§ 572 et seq., post. "* See Hines v. Miller, 122 Cal. 517, 55 Pac. Rep. 401. =" Kerr's Cye. Code Civ. I'roc, § 1191. «« Santa Cruz R. P. Co. v. Lyons, 133 Cal. 114, 116, 65 Pac. Rep. 329. " Stimson M. Co. v. Braun. 136 Cal. 122, 125, 68 Pac. Rep. 481, 89 Am. St. Rep. 116, 57 L. R. A. 726. Mech. Liens — 11 §§206,207 mechanics' LIENS. 162 been held, in some jurisdictions, that it is not necessary for lien claimants to have had the statute in mind, and that they need not have had any intention to enforce a lien at the time of entering into the contract. This question, however, has never been discussed l)y the California courts. § 206. Consent. There must be consent, and a meeting of minds, as in the ordinary case of contracts.-** Thus a written proposal for bids to do the work, and a written bid therefor by the contractor, and his bond for the performance of the work as provided for in the proposal, constitute the contract.-^ Street improvement. Contract inchoate. Where it is necessary, in order to obtain a permit, that the owners of a majority of the frontage under a street-paving contract shall sign the contract, and only one has signed, the contract is inchoate until the required number sign.^° § 207. Same. Fraud. Mistake. The same general prin- ciples applicable to fraud and mistake seem likewise appli- cable to the original contract, and it may be avoided for such Colorado. As to entering into contract with statute in view, see Cliicago L. Co. V. Newcomb, 19 Colo. 265, 74 Pac. Rep. 786, 789. Montana. The lien, under the circumstances of the case, " did not arise from the contract under which the work was done; it arose from the work performed upon the property": Davis v. Alvord, 94 U. S. 545, 548. bk. 24 x-.. ed. 283. Utah. " The contract for the construction of the building is entered into with a view of or with reference to the statute": Morrison, Merrill & Co. v. Willard. 17 Utah 306, 53 Pac. Rep. 832. 70 Am. St. Rep. 784. Washington. It is not necessary that the lien be referred to in the contract, and the claimant need not have had it in mind at the time he agreed to perform the work: Stringham v. Davis, 23 W^ash. 568, 63 Pac. Rep. 230. =" See Skym v. Weske Consol. Co. (Cal.), 47 Pac. Rep. 116. Contract signed by one party: See Reedy v. Smith. 42 Cal. '245; Luckhart v. Ogden, 30 Cal. 547. Montana. When the contract was not completed until the execu- tion of a bond agreed to be given, no recovery could be had upon such contract, when the bond was not given: Hogan v. Shields, 20 Mont. 438, 52 Pac. Rep. 55. Utah. Under a contract to furnish materials according to plans, specifications, and detail drawings, the latter become a part of the contract: Utah L. Co. v. James. 25 Utah 434. 71 Pac. Rep. 986. 29 Gilliam v. Brown. 126 Cal. 160. 162, 58 Pac. Rep. 466. »• Flinn v. Mowry, 131 Cal. 481, 484, 63 Pac. Rep. 724, 1006. 163 BUILDING CONTRACTS GENERAL PRINCIPLES. § 208 fraud and mistake. ^^ Where, through misrepresentation of the defendant, plaintiff was induced to sign a contract he had never intended to sign, supposing he was signing one which, the day before, had been drawn up in lead-pencil, it may be avoided.^^ ;^ 208. Same. Indefiniteness of contract. False reference to plans and specifications. If the contract is indefinite, it cannot be enforced. ^^ Thus where, under the contract, the building is to be built according to specifications, they are an essential part of the contract, and are as material as the price paid or the terms of payment; but where the specifi- cations are falsely referred to as annexed to the contract, the contract is void, and cannot form the basis of a recov- ery.^* And where the written contract for the construction, as to the plans, drawings, and specifications, states that the same " are signed by the parties hereto and to be kept and •■" See Kerr's Cyc. Civ. Code, §§ 1550, 1555-1589, and notes. Erasure in a buildini; contract : See Sullivan v. California R. Co., 142 Cal. 201, 204, 205, 75 Pac. Rep. 767. Hawaii. Interlineations made after signing, lield to render instru- ment void in toto: Apona v. Kamai, 6 Hawn. 707. Idalio. Alteration of contract after delivery : Lane v. Pacific & I. N. R. Co., 8 Idaho 230, 67 Pac. Rep. 656. Washington. Corrections and interlineations made and inserted before signing : See Crowley v. United States F. & G. Co., 29 Wash. 268, 69 Pac. Rep. 784. '■'^ Cummings v. Ross. 90 Cal. 68. 71. 27 Pac. Rep. 62. See Beatty v. Mills, 113 Cal. 312, 45 Pac. Rep. 468. And it is probably true that wliere a subcontractor, material-man, or laborer agrees with the original contractor for more than he is entitled to, upon the under- standing between them that it should be made out of the property, there would be such a fraud as would vitiate lien : Jewell v. McKay, 82 Cal. 144, 150, 23 Pac. Rep. 139. See also Verzan v. McGregor, 23 Cal. 339. See "Conspiracy," S 380, post. Am to iiiiHtulve in contract, see Stimson M. Co. v. Rile.v (Cal.), 42 Pac. Rep. 1072. and Skym v. Weske Consol. Co. (Cal.). 47 Pac. Rep. 116. Montana. Agreement among bidders on public work not to bid, void, as against public policy : WHialen v. Harrison, 26 Mont. 316, 67 Pac. Rep. 934. =' Rauer v. Fay, 110 Cal. 361. 42 Pac. Rep. 902: Rauer v. Welsh (Cal.), 42 Pac. Rep. 904. See Kreuzberger v. Wingfield, 96 Cal. 251. 255, 31 Pac. Rep. 109. See chapter on " Variances." SS 835 et seq., post. '^ Worden v. Hammond, 37 Cal. 61, 64 (1862); Willamette S. M. Co. V. Los Angeles College. 94 Cal. 229. 233. 29 Pac. Rep. 629; Barker v. Doherty, 97 Cal. 10, 31 Pac. Rep. 1117; West Coast L. Co. v. Knapp, 122 Cal. 79, 54 Pac. Rep. 533. §§ 209, 210 mechanics' liens. 164 remain in the office of the architect," and the same are not so signed, the contract is inchoate, and not complete, and cannot form a basis of a recovery.^" And even where the contract refers to the plans and specifications only, and does not expressly make them a part thereof, where it appears that they are an essential part of the contract, a reference to them as being in the office of the architect leaves the contract, in its terras, essentially uncertain and indefi- nite.^® In such cases, the contract is void as to all its terms and conditions.^'' § 209. Consideration. There must, of course, be a legal consideration for the contract.^* Express or independent consideration is not necessary to the validity of the modifi- cation, either orally or in writing, of the original contract.^® " The contract, when modified by subsequent oral agreement, is substituted for the contract as originally made, and the original contract attaches to and supports the modified contract." ■*" Agreed abandonment of contract requires no new or inde- pendent consideration.*^ § 210. Ratification. The common principles of ratifica- tion of contracts seem to be likewise applicable to this 3» DonneUy v. Adams, 115 Cal. 129, 130, 46 Pac. Rep. 916: 127 Cal. 24, 59 Pac. Rep. 208. See West Coast L. Co. v. Knapp, 122 Cal. 79. 83. 54 Pac. Rep. 583; Blinn L. Co. v. Walker, 129 Cal. 62, 66, 61 Pac. Rep. 664. 3" Greig v. Riordan, 99 Cal. 316, 320, 33 Pac. Rep. 913; Pierce v. Birkholm, 115 Cal. 657, 660, 47 Pac. Rep. 681. See Holland v. Wilson, 76 Cal. 434, 18 Pac. Rep. 412; Willamette S. M. L. Co. v. Los Angeles C. Co., 94 Cal. 229, 29 Pac. Rep. 629; Yancy v. Morton, 94 Cal. 558, 29 Pac. Rep. 1111. " Donnelly v. Adams, 115 Cal. 129, 132, 46 Pac. Rep. 916. ss Kerr's Cyo. Civ. Code, §§ 1605-1615, and notes. See, generally, Gibson v. W' heeler, 110. Cal. 243, 245, 42 Pac. Rep. 810. Compare : Dore v. Sellers, 27 Cal. 588, 593. See also " General Nature of Lien," § 9, ante. 3» Long V. Pierce Co., 22 Wash. 330, 61 Pac. Rep. 142, 147. <* Long V. Pierce Co., supra. See Bodders v. Davis, 88 Ala. 367, 6 So. Rep. 834; Thomas v. Barnes, 156 Mass. 581, 31 N. B. Rep. 683; Brown V. Everhard, 52 WMs. 205, 8 N. VV. Rep. 725. " Dyer v. Middle Kittitas Irr. Dist., 25 Wash. 80, 64 Pac. Rep. 1009, s. c. 40 Wash. 238, 82 iPac. Rep. 301. 165 BUILDING CONTRACTS — GENERAL PRINCIPLES. §§211-213 species of contracts.*- Thus a change in plans by architect must be ratified/'* and the acts of engineer changing the plans of the improvement.** § 211. Definition of " original contract." Every contract made by an owner relating to the erection of a building is not necessarily an " original contract." It has already been pointed out that there are certain distinguishing features characteristic of the " original contractor," *'5 and it seems that his contract is an " original contract," under which other claimants may derive rights through him. The term " original contract " evidently is used in contradistinction to some subsequent and dependent contract.*" § 212. Same. Owner, laborer, and material-man. It is obvious that the contract between the owner and his laborer or material-man cannot be related in the manner pointed out in the preceding section, and hence cannot be " an original contract." *^ § 213. Same. Subcontractor's contract. The contract of a subcontractor is not " an original contract," although he may create intermediate liens, and for that reason it is not required either to be in writing or to be recorded.*^ *- Ellison V. Jackson W. Co., 12 Cal. 542, 552. As to waiver of provisions for Iienefit of owner, see "Certificate," §§ 238 et seq., post; " Pei-formance," SS 334 et seq., post. " De Mattes v. Jordan, 15 Wash. 378, 46 Pac. Rep. 402. " Wortman v. Montana Cent. R. Co.. 22 Mont. 266, 56 Pac. Rep. 316 *^'' See §§ 45-65, ante. « See Mclntyre v. Trautner, 63 Cal. 429, 430. " Bryson v. McCone, 121 Cal. 153, 53 Pac. Rep. 637; Hinckley v. Field's Biscuit & C. Co.. 91 Cal. 136, 139, 27 Pac. Rep. 594- Reed v Norton, 90 Cal. 590, 599, 26 Pac. Rep. 767, 27 Id. 426. The language of Santa Monica L. Co. v. Hege, 119 Cal. 376, 378, 51 Pac. Rep. 555, "as the amount of the materials purchased from the plaintiff was less than one thousand dollars in value, the provisions of the code relating to the written contract and filing the same for record have no appli- cation." and similar expressions in IMadera P. & T. Co. v. Kendall 120 Cal. 182, 52 Pac. Rep. 304, 65 Am. St. Rep. 117, relative to the contract for materials, are misleading, although in the former case the court recognized the fact that a material-man is not an original contractor. <» Reed v. Norton, 90 Cal. 590. 599. 34 Pac. Rep. 333. See "Subcontractor," §§ 66-76, ante. §§214,215 mechanics' liens. 166 A subcontract has been defined ])y the Oregon courts to be a contract by one who has contracted for the performance of labor or service Avith a third party for the whole or part performance of that labor or service ; "* but this definition is open to criticism. § 214. Same. Definition of " statutory original contracts " and " non-statutory original contracts." The statutory pro- vision ^° divides original contracts with reference to struc- tures and for work in mines into two great classes : 1. Those in which the amount agreed to be paid thereunder exceeds one thousand dollars; and 2. Other original contracts. The first of the classes of original contracts, for the sake of definiteness and precision, will be designated as " statutory original contracts," and the second class as " non-statutory original contracts." These classes of original contracts will be considered hereafter in detail, the California and Colorado statutes being in this respect almost similar. § 215. Same. Contract for street-work. Under section eleven hundred and ninety-one of the Code of Civil Pro- cedure, providing for the construction of sidewalks, etc., in incorporated cites, there is no statutory original contract, within the meaning of section eleven hundred and eighty- three of the same code.^^ ■"> Smith V. Wilcox, 44 Oreg. 325, 74 Pac. Rep. 708; rehearing denied, 75 Pac. Rep. 710. 50 Kerr's C'yc. Code Civ. Proc, § 1183. Colorado. The contracts referred to In Laws 1893, p. 316, § 1, which were required to be recorded, were those entereu Into between the reputed owner and a contractor, in which certain work is con- tracted to be done, and a certain price was contracted to be paid; and the failure to record a contract, not within the purview of tlie statute, did inure to the benefit of third parties, so as to give a lien: Maner v. Shull, 11 Colo. App. 322, 52 Pac. Rep. 1115. " Kreuzberger v. Wlngfleld, 96 Cal." 251, 257, 31 Pac. Rep. 109, 167 CONSTRUCTION OF BUILDINU CONTRACTS. § 216 CHAPTER XII. BUILDING CONTRACTS (CONTINUED). CONSTRUCTION OF SAME. IN GENERAL. § 216. Construction of building contracts. In general. § 217. Several contracts relating to the same matters. § 218. Ambiguity or uncertainty in contract. § 219. Particular clauses. General intent. § 220. Entire and severable contracts. § 221. Dependent and independent promises. § 222. Joint and several contracts. § 223. Contract explained by circumstances. § 224. Reasonable stipulations, when implied. § 225. Same. Time of performance unspecified. § 226. Warranty. § 227. Construction of statutory original contracts. Penalty. § 228. Instances of construction of contracts. § 216. Construction of building contracts. In general. The general principles of law relating to the construction of contracts are applicable to building contracts. They have their enunciation in the Civil Code of California.^ These general principles will be here considered only so far as they serve to illustrate the decisions relating to the subject- matter treated in this work. In the following chapter Avill be treated in detail certain provisions frequently' found in building contracts. ' Kerr's Cye. Civ. Code, §§1635-1661, and notes. See also "Con- struction of Mechanic's-Lien Statutes," §§ 24-27, ante. Oregon. See Chamberlain v. Hibbard, 26 Oreg. 428, 38 Pac. Rep. 437 (where the contract called for common mortar, and the specifica- tions for the use of cement in the mortar, the contractor is not liable when common mortar was used). C'oiitraet and bond executed at the same time will lie construed as one instrument : Henry v. Hand, 36 Oreg. 492, 59 Pac. Rep. 330. I'tah. When the agreement is to furnish building material ac- cording to plans, specifications, and detail drawings, the plans, speci- fications, ?nd detail drawings become a part of the contract : Utah L. Co. V. .Tames. 25 Utah 434. 71 Pac. Rep. 986. Washington. Working details prepared by a city engineer become a part oi. a contract to grade and do other street-work according to certain plans of such engineer and under his directions, the plans not being attached to the contract, but this clause does not authorize such engineer to insert in the contract provisions prohibiting the §§ 217, 218 mechanics" liens. 168 § 217. Several contracts relating to the same matters. Where there are several contracts relating to the same matters between the same parties, made as parts of sub- stantially one transaction, they are to be taken together.- Thus when, at the time of executing a contract for street- work, and as a part of the same transaction, a receipt for the difference between the amount as named in the contract and the price agreed between the parties in the contract, which contained a provision for the payment of the balance in instalments, the two instruments constitute the agreement between the parties, and are to be taken with the same effect as if the terms of both had been incorporated in one document and signed by both parties, and are to be con- strued, as far as practicable, so as to give effect to every part of each instrument.* § 218. Ambiguity or uncertainty in contract.* If the terms of a promise in an agreement are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it ; ^ and the language of the contractor from assigning the contract, fixing the time within which the work shaU be completed, or prescribing a penalty for liquidated damages, or extra compensation for the work, or anything save the working details : Young v. Borzone, 26 Wash. 4, 66 Pac. Rep. 135, 139, 421. AVhere a bond is given to secure performance of a building con- tract, it is the contract, and not the bond, which is primarily to be construed, and the construction of the contract cannot be affected by the fact that the bond is given for its performance; it must be con- strued with reference to the intentions of the parties to the contract, as gathered from the instrument : Cowles v. United States F. & G. Co., 32 Wash. 120, 72 Pac. Rep. 1032, 98 Am. St. Rep. 838. '^ Arizona. The rule is well settled, that when the terms and lan- guage of the contract are ascertained, in the absence of technical phrases, or the existence of latent ambiguities, rendering the subject- matter of the contract uncertain or doubtful, the office of interpreting its meaning belongs to the court alone : O'Connor v. Adams (Ariz.), 59 Pac. Rep. 105. » Flinn v. Mowry, 131 Cal. 481, 63 Pac. Rep. 724, 1006: Kerr's Cyc. Civ. Code, § 1641, and note. < Flinn v. Mowry, 131 Cal. 481, 63 Pac. Rep. 724 .(judgment modified, 63 Pac. Rep. 1006). See §§ 208, 216, ante. = Laidlaw v. Marye, 133 Cal. 170, 179, 65 Pac. Rep. 391. See Kerr's Cyc. Civ." Code, § 1649, and note. 169 CONSTRUCTION OF BUILDING CONTRACTS. §§ 219, 220 contract is to be interpreted most strongly against the party who caused the uncertainty to exist; the promisor is pre- sumed to be such party ; ^ especially so, where the promisor draws the contract.' § 219. Particular clauses. General intent. The statutory rule is, that particular clauses of a contract are subordinate to its general intent.^ There is an exception to this rule in those cases where the parties insert in their contract a clause to the effect that certain language used by them, which has become provincial, or has a peculiar and technical meaning in a particular trade, shall be taken to be used in a desig- nated sense, when the designation thus made is clear and free from ambiguity.® § 220. Entire and severable contracts. Where the eon- tract is to furnish, at a fixed rate per ton, all the iron couplings to be used in the construction of a pipe line, the contract is an entire contract.^*^ And Avhere the contractor » Laidlaw v. Marye, 133 Gal. 170, 179, 65 Pac. Rep. 391. See Kerr'.s Cyc. Civ. Code, § 1654, and note. An instrnnieiit is to be interpreted most strongly against party bound by it: Flinn v. Mowry, 131 Gal. 481, 484, 63 Pac. Rep. 724, 1006. See Kerr's Cyc. Civ. Code, § 1654, and note. • Uaidlaw v. IV[arye, 133 Gal. 170, 179, 65 Pac. Rep. 391. " Kerr's Cyc. Civ. Code, § 1650, and note. See J. M. Griffith Co. v. City of Los Angeles (Gal. Sup.), 54 Pac. Rep. 383 (contract for con- structing a sewer with a city; balance in excess of cost of repairs; chang-e in contract respecting, bands). See Gray v. La Soci6t6 Fran- Saise de B. M., 131 Gal. 566, 570, 63 Pac. Rep. 848. ' See Morrison v. Wilson, 30 Gal. 344, 348. '" First Nat. Bank. v. Perris Irr. Dist., 107 Gal. 55, 65, 40 Pac. Rep. 45. Architect's contract for plans and specifications and for superin- tendence is an entire contract: See 4 Am. & Eng. Ann. Gas. 831 7 Id. 617. Colorado. The contract of a custodian of a mine to receive wages to be paid monthly, to be terminated by either party at any time, for the purpose of supporting a lien, is not a new hiring each month, but the labor is done under the original contract until it is ended; and. under the circumstances of the case, a lien did not attacli: Griffin v. Seymour, 15 Colo. App. 487, 63 Pac. Rep. 809. Am to entire contract, see W^alling v. Warren, 2 Colo. 434. Montana. Single contract on open continuous account : Western I. W. V. Montana P. & P. Co., 30 IMont. 550, 77 Pac. Rep. 413, 417. Where monthly accounts are rendered for supplies sold at various times, under no special agreement, the vendor not enforcing collec- tion every month as a matter of grace, and relying on the supposed solvency of the vendee and the value of its concentrates, there is no running account, but each sale is made under a separate contract. § 220 mechanics' liens. 170 agreed to repair an old house, and to build a new addition thereto, to be attached to it, the old house to be turned partly payment being- due at tlie end of the month; such transactions being distinguisliable from those wlierein supplies are to be furnished wliere a reasonably, if not perfectly, definite amount of material could be counted upon, from time to time, under one general contract; but purchases made under no special agreement cannot be considered a continuing running account : A. M. Holter H. Co. v. Ontario M. Co., 24 Mont. 184; 61 Pac. Rep. 3, 7, 8. See Big Blackfoot M. Co. v. Blue- bird M. Co., 19 Mont. 456, 48 Pac. Rep. 778. As to Tvlien statute of limitations begins to run against mechanic's lien on a ruuniuK' account, see note T Am. & Eng. Ann. Cas. 947. AViiere no time is fixed for payment in an agreement to furnisli all services and materials for constructing a heating plant, to be paid for under a schedule of prices, a substantial performance of the whole contract is a condition precedent to liability under the express contract for the whole or any part of the consideration, and the fixing of the prices on the different items does not amount to a severance: Riddell v. Peck-Williamson H. & V. Co., 27 Mont. 44, 69 Pac. Rep. 241. See Helena S. H. & S. Co. v. Wells, 16 Mont. 65, 40 Pac. Rep. 78, in which it was held that when all the items in the account relate to one transaction, and is between the same parties, it constitutes a con- tinuous account, regardless of different times of delivery, and dates from the day of the last item. See also Alvord v. Hendrie, 2 Mont, lib Nevada. See Capron v. Strout, 11 Nev. 304. Oregon. A contract for the construction of four buildings, for a fixed sum, to be made in semimonthly payments of seventy-five per cent of the labor performed and material used, the balance, or twenty-five per cent of the total contract price, to be paid thirty-tliree days after the building's are completed, finished, delivered, and accepted, is entire and inseverable, although there is a later clause in the contract that the total sum shall be so segregated and divided In the payment thereof as to require fixed amounts for each of the structures : Wehrung v. Denham. 42 Oreg. 386, 71 Pac. Rep. 133. One contract for four buildings entire, though in computing the price plaintiff estimated the cost of one building and multiplied it by the number of buildings: Title G. & T. Co. v. Wrenn, 35 Oreg. 62, 56 Pac. Rep. 271, 76 Am. St. Rep. 454. Utah. When all the items of an account relate to one continuous transaction between the same parties, although the goods were de- livered on separate orders, and at different dates, within sliort intervals of each other, and the dealings of the parties indicate an expectation to continue such business relations, the transactions con- stitute a continuous running account, regardless of intervening irreg- \ilar monthly balances in the account, which dates from the date of the last item delivered and relates back to the time of the first delivery of material; but if the materials are furnished for separate and distinct purposes, under distinct, separate contracts or orders, requiring cash payment, under circumstances tending to rebut deal- ings of a continuous nature, there would be no presumption of a continuous account, and, in the absence of an express contract, the right to a lien dates from the time of the commencement to furnish the materials for the different separate contracts on each separate order: Fields v. Daisy Gold M. Co., 25 Utah 76, 69 Pac. Rep. 528. See also note 7 Am. & Eng. Ann. Cas. 947. 948. I'nder a contract t«» run tunnel of fixed length, at a definite price, the owners agreeing "to receive said tunnel one hundred feet at a 171 CONSTRUCTION OF BUILDING CONTRACTS. § 220 round and placed on a new brick foundation to be laid under both the old house and the new addition, the contract is an entirety, where there is nothing in the contract by which the price to be paid for any part of the work or materials can be distinguished from that to be paid for any other part, and the word " building," in a condition in the contract, upon which the third instalment is to be paid, comprehends the new part, where the condition of the first payment is that the " old part " and not the " old building " shall be placed in position.'^ A contract to bore two thousand feet of well-holes on oil- lands, under a scale of prices per foot, held, from a con- struction of the contract, that the plaintiff was to be paid at a fixed price per foot for each and every foot of hole sunk by him in an honest endeavor to carry out the contract, and he Avas entitled to payment for sinking a hole five hundred and eighty feet, which was abandoned by consent of the parties, by reason of a broken stem, or bit, upon which there was a cave of one hundred and fifty feet, preventing further drilling therein.^- Where a contractor agrees to timber a tunnel in a work- manlike and practical manner so as to protect against outward and inward pressure, and he is controlled in this by the further provisions that the tunnel is to be constructed according to the specifications of the engineers of the owner, and that the material for timbering is to be furnished by the owner, notwithstanding that the contract is indivis- ible and entire, the contractor is not responsible for caving time, and to pay " the contractor " one thousand doUars upon the com- pletion of such one hundred feet," and the second hundred feet were not paid for, the contractor, abandoning the work, can recover for that already done, the payment of the one thousand dollars upon the completion of each hundred feet being a condition precedent to the complete performance of the work : Bennett v. Shaughnessy, 6 Utah 273, 22 Pac. Rep. 156. Washington. So where the contract of an architect was to draw plans and superintend the construction of the building to comple- tion, the fact that payment was to be made by the month does not affect the entirety of the contract: Nason v. Northwestern M. & P. Co., 17 Wash. 142, 49 Pac. Rep. 235. An to architect'.s contract, see 4 Am. & Eng. Ann. Cas. 836, 7 Id. 617. " Clark V. Collier, 100 Cal. 2o6, 258, 34 Pac. Rep. 677. '- Cook V. Columbia O. A. & R. Co., 144 Cal. 670, 674, 78 Pac. Rep. 287. §§22], 222 mechanics' liens. 172 of the timnel, caused by the failure of the owner to furnish suitable timbers and by the mistake of the engineers as to the strength of material. ^^ Contract to grade railroad. AVhere a contract provides for the grading of a section of a railroad and the doing of the masonry work, and all things necessary for placing the cross-ties and iron equipment on the track, and the owner was to pay the contractor a certain price for the work, to be paid in instalments as the work progressed, at amounts to be fixed on estimates of the chief engineer of the com- pany, the contract is entire, notwithstanding the provision for payments from time to time as the work progressed.^* § 221. Dependent and independent promises. Where mutual promises go to the whole consideration on both sides, they are concurrent and dependent; for instance, the promise of the contractor to protect the building from liens, and that of the owner to pay seventy-five per cent of the contract price during the progress of the building, upon certificates of the architect, and the balance upon its com- pletion, are mutual and dependent, and go to the whole consideration.^^ But an agreement of the owner to pay the contract price thirty-five days after the completion of the contract is independent of the engagement of the contractor to keep the structure in repair for one year after such com- pletion.^^ § 222. Joint and several contracts. Where payment in full is made to one of two joint contractors, who has a right " McConnell v. Corona City W. Co., 149 Cal. 60, 63, 85 Pac. Rep. 929. " Cox V. Western Pac. R. Co., 44 Cal. 18, 28, s. c. 47 Cal. 87, 89. See Cox V. McLaugrhlin, 52 Cal. 590, 595, 54 Id. 605, 63 Id. 205, 76 Id. 60, 62. 18 Pac. Rep. 100, 9 Am. St. Rep. 164; Atlantic & D. R. Co. v. Delaware C. Co., 98 Va. 503, 508, 37 S. E. Rep. 13. " Ernst V. Cummings, 55 Cal. 179, 184. Montana. Breach of a subsequent independent contract, so con- strued, held not to be a breach of the antecedent contract : Wort- man V. Montana Cent. R. Co., 22 Mont. 266, 56 Pac. Rep. 316. Oregon. The modern tendency of courts, when, a matter of con- struction is left in doubt, is to prefer the one which renders mutual promises or agreements dependent rather than independent : Henry V. Hand, 36 Oreg. 492. 59 Pac. Rep. 330. '8 First Nat. Bank v. Perris Irr. Dist., 107 Cal. 55, 67, 40 Pac. Rep. 45. 173 CONSTRUCTION OF BUILDING CONTRACTS. § 223 to receive it, a separate cause of action cannot accrue to the other ; but where the work of each can easily be done separately, and both receive payment for what he actually did in running a tunnel, at a certain price per foot, if the defendant treats the contract as several, and measures the work of one, and agrees to pay him as soon as the other finishes the work, a separate cause of action for such work is created, and the defendant cannot shield himself from liability by payment to the other party.^' § 223. Contract explained by circumstances. A contract may be explained by reference to the circumstances under which it was made and the matter to which it relates. ^'^ Tlie contract must be considered as a whole, and regard must be had to the situation of the parties, the surrounding circum- stances, and the object to be accomplished, in order to arrive at the intention of the parties. ^'^ Where the contract provided that the contractor was to build a dam " in the year 1867, or as soon thereafter as prac- ticable," it will not be construed to mean " that which can be " Sullivan v. Grass Valley Q. M. & M. Co., 77 Cal. 418, 421, 19 Pac. Rep. 757. See Kerr's Cyc. Civ. Code, §§ 1659, 1660, and notes. 's Kerr's Cyc. Civ. Code, § 1647, and note. " Far West O. Co. v. Witmer Bros. Co., 143 Cal. 306, 77 Pac. Rep. 61 (clause construed as an independent covenant). W^asliinfirtoii. Where a contract provided that any improper build- ing materials may be condemned, materials accepted in the construc- tion of the building fixes the liability : Childs L. & Mfg. Co. v. Page, 28 Wash. 128, 68 Pac. Rep. 373. Where the contract for the construction of a ditch provided for the removal of " eartli and gravel " betvpeen certain points, the removal of "cement-gravel" was held to be v^ithin the terms of the contract, although attended with greater difflcuties, it appearing tliat at the time of the execution of the contract the contractors knew or might have known that the work where the "cement-gravel" was encountered might be more difficult to perform than elsewhere: Wilkin V. Bllenburgli W. Co.. 1 Wash. 236, 24 Pac. Rep. 460. Where a building contract authorized the owner to construe tlie terms thereof, and made his construction after the completion of tlie work, and the contract in regard to the plastering provided that the lathing should receive two coats of plaster and " carpet float for calcimining walls," the owner was authorized to construe the pro- vision as requiring three coats of plaster, the contractor not urging a waiver of the owner's right so to construe the contract by silence, or failure to object at the time the plaster was placed on the walls : Sweatt v. Hunt, 42 Wash, 96, 84 Pac, Kep, 1. §§ 224, 225 mechanics' liens. 174 accomplished by hiiinan means " ; its meaning must be ascertained from the nature of the contract, the difficulties to be overcome, and the importance to the plaintiff of an early completion. Each case is governed by its own circum- stances.^" § 224. Reasonable stipulations, when implied. Stipula- tions which are necessary to make a contract reasonable, or conformable to usage, are implied, in respect to matters concerning which the contract manifests no contrary inten- tion.-^ So in the absence of a provision in the contract as to how windows are to be placed, there is impliedly in the contract an agreement that it shall be done in a workman- like manner.-^ Where a public body contracts to provide material, it is implied that the material shall be of proper strength and suitable for the purpose, and in such case no presumption will be indulged that there is an uncertainty, under the statute -^ providing that an uncertainty in a contract between a public body and a private individual shall be presumed to be caused by the latter.-* § 225. Same. Time of performance unspecified. If no time is specified for the performance of an act required to be per- 2» Reddy v. Smith, 42 Cal. 245. " Kerr's Cyc. Civ, Code, § 1655, and note. Colorado. A contract for the erection of a building-, " of the best lumber." merely, tnust be construed to mean the best lumber of which buildings were ordinarily constructed at that place: Mclntyre v. Barnes, 4 Colo. 285. :tlontana. A building contractor's agreement to "furnish all ma- terial and do all labor" must be Interpreted to mean that he will pay for the same: Cockrill v. Davie. 14 Mont. 131. 35 Pac. Rep. 958. =2 Schindler v. Green (Cal. App.), 82 Pac. Rep. 631. This point was eliminated in the decision on hearing in the supreme court: 149 Cal. 752, 87 Pac. Rep. 626. Idaho. Where a railway company contracts to fence tlie edge of pit-ground on both sides of its track, and to construct a switch, but does not specify how it shall be done, the law implies a promise to do it in the usual way, and that it shall be complete and effectual for the purpose intended : Lane v. Pacific & I. N. R. Co., 8 Idaho 230, 67 Pac. Rep. 656. 23 Kerr's Cyc. Civ. Code. § 1564. =* McPherson v. San Joaquin County (Cal., Marcli 24, 1899), 56 Pac. Rep. 802. 175 CONSTRUCTION OP BUILDING CONTRACTS. § 226 formed, a reasonable time is allowed.-^ Likewise as to enlargement of time to perform ; ^'^ and what is such reason- able time is a question of law for the eourt.^'^ § 226. Warranty. Where a contract provides that when the cut of a ditch is sufficient in capacity and grade to carry all the waters of a creek, the contractor should receive com- pensation, and he guarantees that all such waters should run through the cut for a certain period from the completion of the work, such guaranty is in the nature of a warranty, and he may recover without waiting for the end of such period, and then show that the ditch had carried all the water at all times.-^ Warranty of design or plan under express specifications. Where a contract provides full specifications as to the manner of construction of an elevator and as to material to be used therein, a clause that the work should be done in a " first-class, workmanlike manner," relates merely to the work as specified in the contract, and there is no warranty that the specifications, or the plan or design of the elevator, -•'• Kerr's Cyc. Civ. Code, § 1657, and note. See Luckhart v. Ogden, 30 Gal. 547; Hannan v. McNickle, 82 Cal. 122, 23 Pac. Rep. 272. Colorado. Where no time is specified for tlie completion of tlie building, it will be presumed that a reasonable time was intended : Walling- V. Warren, L' Colo. 434. \Va!4hlngtoii. Brodek v. Farnum, 11 Wash. 565, 40 Pac. Rep. 189. =« Luckhart v. Ogden, 30 Cal. 547. =' Luckhart v. Og-den, 30 Cal. 547. ^Vhere the law defines «"hat is a reasouable time, or the question can be determined by application of rule to construction of instru- ment, question is one for the court: See Railway Co. v. Birnie, 59 Ark. 7S, 79: Earnshaw v. United States, 146 U. S. 60, 67, bk. 36 L. ed. 887, 889, 13 Sup. Ct. Rep. 14. Jury to draw Inference from facts In all Other cases : See Luck- hart V. Ogden, supra; Morris v. Wibaux, 159 111. 627, 646, 43 N. E. Rep. 837. See notes 17 Am. Dec. 545: 69 Am. Dec. 457. VVasliIngton. Where certain lines and levels for the work were to be furnislied on a certain date before the date of the contract, but were not so furnished, a penal clause for delay was ineffectual, for the reason that by entering on the work after the failure to comply with this condition precedent, the contractor merely obligated himself to complete the building within a reasonable time : Long v. Pierce Co., 22 Wash. 330, 61 Pac. Rep. 142, 148. di.*«ting-iilNliing Reichen- bach V. Sage, 13 Wash. 364, 43 Pac. Rep. 354. *» Gilliam v. Brown, 116 Cal. 454, 48 Pac. Rep. 486. §§ 227, 228 mechanics' liens. 176 are first-class, or that it is suitable for the purposes intended.-® § 227. Construction of statutory original contracts. Penalty. Statutory original contracts, and alterations thereof, under the California statute, must conform sub- stantially to the provisions of section eleven hundred and eighty-four,^*' relating to the time and manner of payments. And in case of a material non-conformity of the building contract with the statute in parts not rendering it void, the owner becomes subject to a penalty, which every reasonable intendment must be made to avoid ; ^^ and a dereliction must be clearly shown to have occurred.^^ § 228. Instances of construction of contracts.^^ Under a contract for the construction of a sea-wall of fixed length, » Bancroft v. San Francisco Tool Co., 120 Cal. 228, 231, 52 Pac. Rep. 496. 30 Kerr's Cyc. Code Civ. Proc, § 1184. 31 San Diego L. Co. v. Wooldredge, 90 Cal. 574, 579, 27 Pac. Rep. 431; West Coast L. Co. v. Knapp, 122 Cal. 79, 54 Pac. Rep. 533. See Reed V. Norton, 90 Cal. 590, 26 Pac. Rep. 767, 27 Pac. Rep. 426; Stimson M. Co. V. Riley (Cal.), 42 Pac. Rep. 1072. "Construction of Statutes," §§24-27, ante. Colorado. Where, in proceedings under a mechanic's-lien statute, the question concerns only the right of the contractor to assert a lien, an alleged prohibitory clause in his contract must be construed strictly, and if the language used be of doubtful import, should be construed in his favor; in other words, the prohibition must be clearly expressed. This rule applies with additional and far greater force when the original contractor's contract is invoked to cut off the lien rights of subcontractors, laborers, and material-men, who were not parties to it : Aste v. Wilson, 14 Colo. App. 323, 59 Pac. Rep. 846. ^ West Coast L. Co. v. Knapp, 122 Cal. 79, 54 Pac. Rep. 533. 33 Construction of contract as to deliverj- of order: Pacific R. M. Co. v. English, 118 Cal. 123, 128, 50 Pac. Rep. 383. Construction of contract as to laying floor: See Laidlaw v. Marye, 133 Cal. 170, 65 Pac. Rep. 391. Arizona. Where a written contract, among other things, provides for certain payments for "all brick laid in the walls of the building now being erected," etc., and for laying them according to plans to be furnished by the architects, and stating that the same were not then completed, and the contract includes the brickwork on a kitchen, an oral agreement for extra payment for constructing the kitchen walls cannot be sustained. The construction of a written contract cannot be submitted to the jury: O'Connor v. Adams (Ariz.), 59 Pac. Rep. 105. Colorado. Where a contract provided for sinking a mining-shaft a specified additional depth, and eighteen feet from the point of the commencement of the work the shaft was sunk off and away from 177 CONSTRUCTIOISr OF BUILDING CONTRACTS. § 228 at certain prices for materials used, the engineer's estimates of the qualities needed, as stated in the notice, bid, and speci- the vein of ore, in the country-rock, there is no agreement to sink on the vein, especiaUy where the owner construes the contract by paying, witliout objection, the amount due, when the shaft was at a lower depth: Buckeye M. & M. Co. v. Carlson, 16 Colo. App. 446, 66 Pac. Rep. 168. Idaho. Where a contract provides for a fixed penalty for delay, and for written applications to architect for extensions of time for completion of the building, and delays are caused bj- the architect, as ag'ent of the owner, who leads the contractors to believe that a written application would not be required, such written application is waived, and no deduction from the contract price because of such delays will be made : Huber v. St. Joseph's Hospital, 11 Idaho 631, 83 Pac. Rep. 768. Montana. Contract authorizing railroad company to stop any of the work, or to diminish the force employed by the contractor, and requiring contractor to do so, construed not to allow the railroad company to stop the whole work temporarily, to be resumed later on, or to cancel contract arbitrarily without cause: Wortman v. Mon- tana Cent. R. Co.. 22 Mont. 266, 56 Pac. Rep. 316. Written contract to furnish certain machinery at a fixed price, and also " all castings required, in addition," at a stated rate, was construed to refer to the castings for the inachinery described, and not to castings subsequently purchased under other contracts : A. M. Holter Hardware Co. v. Ontario M. Co., 24 Mont. 184, 61 Pac. Rep. 3, 7. Oregon. Where a contractor was to keep the building free from liens for a period beyond the time when the last payment was due, freedom of t!ie structure from such liens is a condition precedent to such payment : Henry v. Hand, 36 Greg. 492, 59 Pac. Rep. 330. AVashington. "Where a contract provides that "no alterations may be made in the work, except on the written order of the architect," a mere change in the parties doing the work does not require such order : Drumheller v. American Surety Co., 30 Wash. 530, 71 Pac. Rep. 25, 26. Where contract requires the contractor to furnish the cut for an excavation " according to stakes set out by the engineer, and to his satisfaction," it refers to stakes then in place: Olsen v. Snake River V. R. Co., 22 Wash. 139, 60 Pac. Rep. 156. Where the contract provided that all the walls should be built of ■' Wilkeson stone," and it appeared that a certain quarry was the only one opened at the time the contract was made, the contractor has the right to procure the stone wherever a suitable quality is to be found, as the specifications describe the quality and grade of stone, and not the particular quarry: Long v. Pierce Co., 22 Wash. 330, 61 Pac. Rep. 142, 151. A contract requiring payment to be made only for materials actually used in the construction of a canal, does not entitle the con- tractor to be paid for materials not in place, but merely strung along the line of the canal : Dyer v. Middle Kittitas Irr. Dist., 40 Wash. 238, 82 Pac. Rep. 301. Oral notice to the contractor is insufficient where tlie contract requires written notice of defects: Sweatt v. Hunt, 42 Wash. 96, 8 Pac. Rep. 1. Contract for preliminary work in clearing right of way of rail- road, construed as limiting the number of cords of wood to that men- tioned in the contract : Eastham v. Western Const. Co., 36 Wash. 7, 77 Pac. Rep. 1051. Mech. Liens — 12 § 228 mechanics' liens. 178 fications, do not require the purchase of or payment for the exact estimated (jiiantities of materials, whether used or not, but only for the materials actually used in the work, and it is of no consequence if there is a mistake in such estimates."* Where, by the terms of a lease of oil-wells, the lessee agreed to erect all necessary machinery, and furnish at its own cost all materials necessary to carry on the work, and all labor employed in the development and production, includ- ing all labor and material in erecting and maintaining fix- tures, the lessor agreeing to pay half of the cost of drilling, casing, and pumping all wells of a certain depth which did not produce a fixed amount of oil per day for a stated period, the lessor was properly chargeable with half of the expense of all the preliminary work of preparing the ground, erect- ing the derrick, placing and connecting the engine, drilling- rig, and the entire cost of the well from the time the first work was begun on the ground until the niachiner}' was removed, when it was abandoned, including the expense of removal, and also half of the reasonable value of the use of the machinery used, owned, and furnished bj^ the lessee.'^ Water company contracting to supply water, but relieved from liability in case such delivery should be lawfully or forcibly restrained, or prevented by hostile diversion or obstruction, is not liable when non-delivery is caused by reason of the filling up of its canal by the road authorities and by injunction.^*' Original contractor, having furnished the materials and performed the work up to a certain stage, when he abandons it, is conclusively bound to know of all defects in the existing materials and workmanship, and is bound, under his con- tract, to correct them; but a new contractor, who under- takes to finish the contract after the abandonment, is not bound to know of defects that are not known or apparent to a skilful observer when he entered upon his contract, and the correction of such defects is not covered by his con- ■■■■* Hackett V. State, 103 Cal. 144, 37 Pac. Rep. 156. Term "more or less," construction of: See Hackett v. State, supra. »•'■ Far West O. Co. v. Witmer Bros. Co.. 143 Cal. 306, 77 Pac. Rep. 61. »« Fresno M. Co. v. Fresno C. & I. Co., 126 Cal. 640, 59 Pac. Rep. 140. 179 CONSTRUCTION OP BUILDING CONTRACTS. § 228 tract. ^' Where a party agrees to erect a building, and certain amounts are to be paid in instalments as the building pro- gresses, and at its completion he is " to take the second party's note, . . . payable twelve months after date, or before if the party of the second part wishes to do so," the clause, " if the party of the second part wishes to do so," relates to the time when the note shall be payable, and the second party has not the option of giving the note.^* Under a contract containing clauses for deviations from the specifications, by the contractor, to be made at the owner's request, and particularly for " omissions from said contract," which " shall in no way affect or make void the contract, but shall be added to or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation." the meaning is clear, without the aid of extrinsic evidence, and such " omissions " do not refer to something which- is to be entirely left out of the building, and not to be put there by the contractor or owner, and which the owner might elect to take off the contractor's hands and perform or finish himself.^'' ^' Long Beach School Dist. v. Dodg-e, 135 CaL 401, 406, 67 Pac. Rep. 499. '■^ O'Connor v. Ding-ley. 26 Cal. 11, 18, 3 West Coast Rep. 197. "» Snaver v. Murdock, 36 Cal. 293, 296. §§229,230 mechanics' liens. 180 CHAPTEK XIII. BUILDING CONTRACTS (CONTINUED). COMMON CLAUSES PECULIAR TO BUILDING CONTRACTS. IN GENERAL. § 229. Scope of chapter. § 230. Arbitration clause. California. § 231. Same. Agreement to arbitrate not final. § 232. Same. When procuring award condition precedent to re- covery. § 233. Same. Distinction between two classes of cases. § 234. Same. Submission to arbitration revocable. § 235. Same. Good faith and open dealings of arbitrators. § 236. Estimates. § 237. Liquidated damages, § 238. Certificates. § 239. Certificate, when excused. § 240. Waiver of certificate. § 241. Same. Dismissal of architect. § 242. Conclusiveness of certificate. § 243. Extra work. Generally. § 244. Same. Definition. § 245. Same. Extra work provided for in contract. § 246. Same. Contract in writing. § 247. Same. Verbal alteration of original contract. § 248. Same. Estoppel. § 249. Same. Arbitration. § 250. Same. Void contract. § 251. Payments. How considered herein. §252. Same. Conditions precedent. § 253. Same. Waiver. § 254. Same. Application of payments. § 255. Liens. Statutory provision. California. § 256. Same. Condition precedent. § 257. Same. Public property. § 229. Scope of chapter. In this chapter will be consid- ered those clauses Avhich are usually found in building con- tracts, their construction and effect. § 230. Arbitration clause. California. Persons capable of contracting may submit to arbitration any controversy which 181 BUILDING CONTRACTS COMMON CLAUSES. §§231,232 might be the subject of a civil action between them, except a question of title to real property in fee or for life ; but this qualification does not include questions relating merely to the partition or boundaries of real property.^ The submission to arbitration must be in writing, and may be to one or more persons.- It may be stipulated in the submission that it maj^ be made an order of superior court, for which purpose it must be filed with the clerk of the county where the parties, or one of them, reside, and the statutory proceedings be had thereon.^ But an agreement to submit a matter to arbitra- tioti will not be specifically enforced.* § 231. Same. Agreement to arbitrate not final. It now seems to be the settled law that an agreement to refer a case to arbitration will not be regarded by the courts, and they will take jurisdiction and determine the dispute between the parties, notwithstanding an agreement to refer the matter to arbitrators.^ § 232. Same. When procuring award condition precedent to recovery. But when the agreement is that the covenantor shall pay such sura, and only such sum, as shall be deter- mined by arbitrators, procuring an award is as clearly a condition precedent to an action, as if the parties had added the clause, " and no action shall be maintainable until after the award of the arbitrators " ; *^ and this is so regarding a > Kerr's Cyo. Code Civ. Proc, §1281, and note. » Kerr's Cyc. Code Civ. Proc., § 1282, and note. " Kerr's Cyc. Code Civ. I'roc, §§ 1283-1290, and notes. * Kerr's Cyc. Civ. Code, § 3390, subd. 3, and note. * Oregon. See Savage v. Glenn, 10 Greg. 440. * See California cases in next note, post. Idaho. Every stipulation or condition in a contract by which any party thereto is restricted from enforcing his rights under the con- tract by the usual proceedings in the ordinary tribunals is void: so held with reference to a provision for referring disputed matters to arbitration, the decision to be final, the distinction from cases decided in other states being that in this contract the award was to be rtnal: Ruber v. St. Joseph's Hospital, 11 Idaho 631, 83 Pac. Rep. 768 (under § 3229, Rev. Stats.). Montana. Under § 2245, Civ. Code of 1895, the provision of a con- tract by which the construction to be placed on it by the agent of one of the parties should be final, without a right of appeal to the courts, held void : Wortman v. Montana Cent. R. Co., 22 Mont. 266, 56 Pac. Rep. 316. § 233 mechanics' liens. 182 building contract containing a clause that if any dispute should arise respecting the true value of the extra work, the same should be valued b}' arbitration." This rule is especially applicable where there is no request or attempt to arbitrate, or where no excuse is shown for not having made such request or attempt.^ § 233. Same. Distinction between two classes of cases. The distinction between the two classes of cases mentioned in the preceding section is, that, in one case, the parties un- dertake by an independent covenant or agreement to provide for the adjustment and settlement of all disputes and differ- ences by arbitration, to the exclusion of the courts ; and in the other, they merely, by the same agreement which creates the liability- and gives the right, qualify the right, by provid- ing that, before any right of action shall accrue, certain facts shall be determined, or amounts or values ascertained, and this is made a condition precedent, either in terms or by necessary implication.^ Oregon. Right to have alterations valued by arbitrators waived by not pleading- it in abatement : Chamberlain v. Hibbard, 26 Oreg. 428, 38 Pac. Rep. 437. Waithingrton. W'here a building contract provided that in case of any doubt or question as to the plans and specifications, the decision of the architects, "being just and impartial," should be conclusive, and, prior to the commencement of the work, the architects, un- known to the contractor, delivered to the county a bond to keep the cost of the building below a certain figure, the decision of the architects is not conclusive: Long v. Pierce Co., 22 Wash. 330, 61 Pac. Rep. 142, 151 (as to extra work). A subnii.ssion to arbitration witliout protest on the part of the owner that the contractor has lost his right to object is a waiver thereof: Brown's Exrs. v. Farnandis, 27 Wash. 232, 67 Pac. Rep. 574. ' Holmes v. Richet, 56 Cal. 307, 312, 38 Am. Rep. 54; Cox v. Mc- Laughlin, 63 Cal. 196, 207, 14 Pac. Rep. 98; Scammon v. Denis, 72 Cal. 393 ("no request or offer" to submit to arbitration); Loup v. Cali- fornia So. R. Co., 63 Cal. 97, 101 (estimate by engineer of the value of the work done). See. as to evidence of referee not being conclu- sive, McFadden v. O'Donnell, 18 Cal. 160. ^ Gray v. La Soci6t6 Frangaise de B. M., 131 Cal. 566, 57], 63 Pac. Rep. 848 (see this case for distinction between arbitration as to the value of extra work and whether extra work falls within arbitration clause). See " Extra W'ork." § 249. post. » Holmes v. Richet, 56 Cal. 307, 312, 38 Am. Rep. 54; Loup v. Cali- fornia So. R. Co., 63 Cal. 97. 102. See California M. E. Church v. Seitz, 74 Cal. 287, 292. 15 Pac. Rep. 839: Castagnino t. Balletta, 82 Cal. 250, 260, 23 Pac. Rep. 127; and Downing v. Graves, 55 Cal. 544, 550. 183 BUILDING CONTRACTS — COMMON CLAUSES. §§234,235 § 234. Same. Submission to arbitration revocable. A stipulation for submitting the matters in controversy to arbi- tration, which contains no provision by which an order of court can be made upon it, and which is not made an order of court, may be revoked at any time before the award is made.^° § 235. Same. Good faith and open dealings of arbitrators. The arbitrator or umpire is required to act in the highest good faith " as to the matters within the arbitration Colorado. See Denver, S. P. & P. Co. v. Riley, 7 Colo. 494, 4 Pac. Rep. 785. Idaho. And where it is agreed that payments shall be made upon estimates of a certain engineer, a party, to recover more, musi allege and prove fraud or mistake: Thompson v. Bradbury, 5 Idaho 760, 51 Pac. Rep. 758. Montana. A clause in a contract, that the engineer of a railway company shall be the arbiter as to whether certain work has been done in accordance with the contract, is valid: Wortman v. Montana Cent. R. Co., 22 Mont. 266, 56 Pac. Rep. 316. Oregon. See Meyers v. Pacific Cons. Co., 20 Oreg, 663, 27 Pac. Rep. 584. >Va.sliin8ton. Arbitration condition precedent to action, where plaintiff has not offered to arbitrate, or has refused to do so: Child2 L. & M. Co. V. Page, 28 Wash. 128, 68 Pac. Rep. 373; Zindorf Const. Co. v. Western A. Co., 27 Wash. 31, 67 Pac. Rep. 374; Hughes v. Bravinder, 9 Wash. 595, 38 Pac. Rep. 209, s. c. 14 Wash. 304, 44 Pac. Rep. 530: Van Hook V. Burns, 10 Wash. 22, 38 Pac. Rep. 763. And see De Mattos v. Jordan, 15 Wash. 378, 46 Pac. Rep. 402; Van Home v. Watrous, 10 Wash. 525, 39 Pac. Rep. 136; Skagit Co. v. Trowbridge (Wash.), 64 Pac. Rep. 901; School Dist. v. Sage, 13 Wash. 352, 43 Pac. Rep. 341. Where a contract provides that, in case of delay in furnishing cer- tain material, the owner may determine the amount of damages therefor, and have the matter submitted to arbitrators, to be selected by the parties, in case the claim be disputed by the contractor, where such contractor takes no steps to arbitrate, and the owner fixes the amount of the damages from delay, and informs the contractor, de- fenses to the claim of damages cannot be set up by the contractor in a suit for the price, when the same could have been arbitrated, and he can recover only any amount due in excess of the damages so fixed: Childs L. Co. v. Page, 32 Wash. 250, 73 Pac. Rep. 353, 28 Wash. 128, 68 Pac. Rep. 373. '" Sidlinger v. Kerkow, 82 Cal. 42, 46, 22 Pac. Rep. 932. See Mc- Fadden v. O'Donnell, 18 Cal. 160. Kerr's Cyc. Code Civ. Proe., § 1283, and note. WaMhini^ton. But see Hughes v. Bravinder, 9 Wash. 595, 38 Pac. Rep. 209. See § 249, post. " Idaho. Where a contract for railroad construction provides tliat the engineer of the company shall act as umpire, and shall finally decide the amount and character of the work and material furnished, the company is bound to employ a thoroughly competent and honest engineer, and see that he performs his duties fairly and honestly : Spaulding v. Cujur D'Alene R. & N. Co., 5 Idaho 528, 51 Pac. Rep. 408. § 235 mechanics' liens. 184 clause ; ^- 3'et where the contractor was to receive a fixed price for his work, whether the variations which the engi- neer, under permission of the contract, might make should make the work heavier or lighter, and a secret agreement Montana. Where a contract names the chief engineer as arbi- trator, whose judgment shall determine that an exigency has arisen to justify the termination of the contract, it is Implied that this judgment shall be exercised in good faith: Wortman v. Montana C. R. Co., 22 Mont. 266, 56 Pac. Rep. 316, 320. • Washington. While arbitrators are not required to proceed with the formalities of a court, yet they must proceed in such manner as to give a full hearing to each of the parties, not only upon the several items of the claim presented by himself, but also upon the claim of his adversary, and upon the evidence adduced in support of that claim. This they cannot do without hearing the party and his wit- nesses in the presence of the opposing party. Unless this right is waived by the party, either in the agreement of submission, or by- conduct amounting to a waiver, the award made under such circum- stances is clearly void. The arbitrators should receive no communi- cation from either party without letting the other party know; they should make no inquiries from the witnesses on either side, no matter how immaterial the point, after the hearing is closed. A departure from the strict rule of dealing equally with both sides will be fatal to the award : Brown's Exrs. v. Farnandis, 27 Wash. 232, 67 Pac. Rep. 574. The court will set aside an arbitration as to the amount due for materials and extra work, and for delay in completing a building contract, where the arbitrators, owing to an altercation between tho parties, respecting the matter in controversy, directed them to leave, the altercation not being so serious that they could not have been heard, and they not being given an opportunity to be heard, as the arbitrators were not sufficiently informed in the premises, and the award was unfair, although not fraudulent : McDonald v. Lewis, 18 Wash. 300, 51 Pac. Rep. 387. Meeting before and presenting claim to arbitrator: See Hughes V. Bravinder, 9 Wash. 595, 38 Pac. Rep. 209. Alterations. Value to be computed by architect. Where the value of any alterations was to be computed by the architect, under the terms of the contract, and might be referred to arbitrators, if the contractor was dissatisfied with architect's award, and it was so re- ferred, the parties being heard separately by the arbitrators, who permitted them to explain their claims, but did not pass on the merits of, demands for some alterations, as the contractor had failed to object to' the architect's computations when they were submitted to him with the order for the alterations, the contractor's right to dissent was not waived, because not done when such computations were sub- mitted to him with such order, and the award was not conclusive, and could be reopened by evidence in a suit against the contractor on his bond : Brown's Exrs. v. Farnandis, 27 Wash. 232, 67 Pac. Rep. 574. " Washington. Where a provision for arbitration relates to the increased or decreased cost occasioned by alterations, reviewing the architect's certificate in the matter of the extension of time, and damages sustained by either party on account of delay, the owner may recover from the contractor the expenses incurred in completing a foundation-wall and repairing a cave in the street, caused by exca- vating the foundation, they not being within such provision: Main Inv. Co. V. Olsen (Wash.), 86 Pac. Rep. 1112. 185 BUILDING CONTRACTS — COMMON CLAUSES. §236 was made with the engineer to give him a share of the profits to make such variations, whenever possible, as would make the work less expensive, without doing anything to the dis- advantage of the railroad company employing the engineer, the contractor may recover the reasonable value of his work, although such arrangement was improper.^'' § 236. Estimates.^* This is somewhat involved in the mat- ter contained in the preceding sections. Where the method of measurement of the cubic contents of an embankment is Where liquidated damages for delay in completion are provided for, and that alterations should not be made except on a written order of the architect, and when so made the value of the work added or omitted should be computed by the architect, and the amount so ascertained be added to or deducted from the contract price, and in case of dissent from such award by either party, the valuation of the work added or deducted should be referred to three disinterested arbitrators, to be appointed in a certain manner, and if the contractors sliould be delayed by the owner or for other reasons specified, the time of completion should be extended for the same period, but claim for such extension to be made to the architect in a certain manner, with the right of appeal to arbitration, submission to the architect or arbitrators of the damages caused by the failure of the contractors to complete the building within the prescribed time was not required: Drumheller v. American Surety Co., 30 Wash. 530, 71 Pac. Rep. 25. " Cox V. McLaughlin, 76 Cal. 60, 64, 18 Pac. Rep. 100, 9 Am. St. Rep. 164. " Estimates: See Valley L. Co. v. Struck, 146 Cal. 266, 271, 80 Pac. Rep. 405. Appro vul and a.s.sigaability of estimates: See Newport W. & L. Co. V. Drew, 125 Cal. 585. 58 Pac. Rep. 187. Estimates I>y memlier of board of tru.stees, who is the president of a bank, which is the assignee of an instalment: See Newport W. & L. .Co. V. Drew, 125 Cal. 585, 591, 58 Pac. Rep. 187. Utah. Fraudulent estimates : See Garland v. Bear L. & R. W. & Irr. Co., 9 Utah 350, 34 Pac. Rep. 368. 'Wa»)liing;tou. Where a contract specially provides that the en- gineer should define the meaning, intent, and purport of the plan.« and specifications, and that his decision in all cases should be final, the clause does not confer on the engineer the power to vary the meaning of plain terms used in the contract, and his estimate as to the work done and materials used is not conclusive, althougli it may be prima facie evidence thereof, where there is no provision In the contract making it conclusive evidence: Dyer v. Middle Kittitas Irr. Dist., 40 Wash. 238, 82 Pac. Rep. 301. In an action by the constructor of an irrigation-ditch for a balance due under a contract requiring the estimates of work done as re- turned by the engineer to be approved by the board of directors of the district, such approval was not an essential to recovery, where the failure to approve was purely arbitrary : Dyer v. Middle Kittitas Irr. Dist., 25 Wash. 80, 64 Pac. Rep. 1009, s. c. 40 Wash. 238, 82 Pac. Rep. 30L § 237 mechanics' liens. 186 sufficiently accurate for practical purposes, although not according to the exact formula, and is shown to be used by some engineers, under the claim that the difference between such method and the exact formula is not sufficient to pay for making the extra calculation, the court was held justified in accepting the computation.^^ § 237. Liquidated damages." Every contract by which the amount of damage to be paid, or other compensation to be made, for a breach of an obligation is determined in anticipa- tion thereof, is to that extent void,^^ except that the parties to a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage. ^^ So a clause in a bond of a contractor, that if the building was not completed by a certain day, the sureties should pay the owner a certain amount as liquidated dam- ages for each day's delay, is not alone enough, without a showing that it was impracticable or extremely difficult to fix the actual damages on account of the delay, to enable the owner to recover such liquidated damages. ^^ 1^ Scanlan v. San Francisco & S. J. R. Co., 128 Cal. 586, 61 Pac. Rep. 271. '^ As to liquidated damai^es, see Pogue v. Kaweah P. & W. Co.. 138 Cal. 664, 72 Pac. Rep. 144. " Kerr's Cyc. Civ. Code, § 1670, and note. " Kerr's Cyo. Civ. Code, § 1671, and note. See also Lony Beacli City School Dist. v. Dodge, 135 Cal. 401, 405, 67 Pac. Rep. 499. i» Patent Brick Co. v. Moore, 75 Cal. 205, 208. 16 Pac. Rep. 890; Muldoon V. Lynch, 66 Cal. 536, 6 Pac. Rep. 417. Colorado. Under a contract for the erection of eight houses for twenty-one thousand two hundred dollars, to be completed within a certain time, provided that if the contractor " fail to complete the work upon any of said liouses, ... it shall pay . . . the full sum of five dollars per day for each and every day thereafter that the work upon either of the said houses shall remain unfinished, ... as liqui dated damages," the payment is not five dollars per day for each house : Denver L. & S. Co. v. Rosenfeld Const. Co., 19 Colo. 539, 36 Pac. Rep. 146. W asliiu)!;ton. Stipulations for liquidated damages are generally inserted in building contracts for the sole purpose of avoiding the possible or probable difl^culty of proving the exact damage that may result from a breach of the contract; and where such agreements are deliberately and intentionally entered into, they are binding upon the parties, and will be upheld by the courts: hut it some- times happens tliat provisions apparently for liquidated damages 187 BUILDING CONTRACTS — COMMON CLAUSES. § 238 § 238. Certificates.2° The code itself does not require any acceptance by the architect, nor a certificate of such accept- ance, and makes no reference to that subject.^^ The contract often provides for the certificate of an archi- tect or other supervising person as to the state of the work, and such may be a condition precedent to payments.-^ Thus where the contract provides for estimates by an engineer, during the progress of the work, as to its amount and value according to the contract price, and that on completion of are really nothing but stipulations for penalties or forfeitures, ag-alnst which the courts will, in proper cases, grant relief. While courts of equity afford relief against penalties, yet they cannot relieve against liquidated damages: Drumheller v. American Surety Co., 30 Wash. 530, 71 Pac. Rep. 25, 30. See Reichenbach v. Sage, 13 Wash. 364, 43 Pac. Rep. 354, 52 Am. St. Rep. 51; Jennings v. McCormick, 25 Wash. 427, 65 Pac. Rep. 764. Also Young v. Gaut, 69 Ark. 114, 61 S. W. Rep. 372. But where a contract provides for ten dollars per day of delay as damages, it was sai"d: "There has been some conflict of authority on this question, each case, however, necessarily being decided with reference to its own particular circumstances and the particular language of the contract. We are satisfied, however, that the over- whelming weight of authority sustains the contention that tliis contract provides for liquidated damages. There is nothing inequi- table in the terms of this provision. The amount does not seem to us to be excessive or unreasonable. It does not provide for the payment of a sum in gross on the failure to comply with the con- tract at the expiration of the time limited, but the damages accrue according lo the length of time the breach continues; and again, there is an element of uncertainty as to the real damages which would be sustained by the plaintiff, which renders it more or less impracticable to be determined by a jury. Values of rents are fluctu- ating, and dwelling-houses of the character and description of tliis one are ordinarily not built for rent at all, but for the convenience and comfort of the owners," etc.; quoting from various cases: Reichenbach v. Sage, 13 Wash. 364, 43 Pac. Rep. 354, 52 Am. St. Rep. 51. ^ See, generally, note 56 Am. St. Rep. 312. Washington. Letter construed as a certiflcate: Washington Bridge Co. v. Land & R. Imp. Co., 12 Wash. 272, 40 Pac. Rep. 982. 21 Valley L. Co. v. Struck, 146 Cal. 266, 270, 80 Pac. Rep. 405. " See § 232, ante, and § 252, post. Failure to obtain certificate: See Wyman v. Hooker, 2 Cal. App. 36, 38, 83 Pac. Rep. 79. Montana. McGlauflin v. Wormser, 28 Mont. 177, 72 Pac. Rep. 428. Oklahoma. Payment on estimates of architect: See American Surety Co. v. Scott & Co. (Okl.). 90 Pac. Rep. 7. Oregon. Approval of work by architect, without being misled or Imposed upon, and refusal thereafter to give certiflcate of flnal completion: See Vanderhoof v. Shell, 42 Oreg. 578, 72 Pac. Rep. 126. 129. ProeurinK certificate of completion required by contract is con- dition precedent to recovery, unless it is waived or the contractor cannot produce it througli no fault of his: Vanderhoof v. Shell, 42 Oreg. 578, 72 Pac. Rep. 126. § 239 mechanics' liens. 188 the work the engineer shall make a final estimate of all the work done, and that the balance due, after deducting the previous payments, shall thereupon be paid by the defend- ant, such estimates are necessary, in order to found an action.-^ And so the certificate of the architect, of expenses incurred by owner upon abandonment of contract, as against sureties, is a condition precedent to recovery.^* § 239. Certificate, when excused. Certificate by architect should not be fraudulently or captiously withheld ; ^^ and if the architect withholds the certificate without just cause, upon demand, or does so fraudulently or corruptly or by mistake, upon proper pleadings the condition in the contract requiring such certificate before the right to payment arises will not be exacted.^*' =» Loup V. California So. R. Co., 63 Cal. 97, 102. See Holmes v. Richet, 56 Cal. 307, 38 Am. Rep. 54; Cox v. McLaughlin, 63 Cal. 207; Ball V. Doud, 26 Oreg:. 14, 20, 37 Pac. Rep. 70; Sullivan v. Susong, 30 S. C. 305. 323, 9 S. E. Rep. 156; Scottish U. & N. Ins. Co. v. Clancy, 83 Tex. 113, 115, 18 S. W. Rep. 439. Also Smith v. Briggs, 3 Den. (N. Y.) 73; Herrick v. Belknap, 27 Vt. 673; Morgan v. Birnie, 9 Bing. 672; Elliot v. Royal Ex. Assur. Co., L. R. 2 Ex. 245. See "Arbitration," §230, ante. ^Vastaington. But where the work has been completed in sub- stantial compliance with the contract, such certificate cannot right- fully be refused: W^ashington Bridge Co. v. Land & R. Imp. Co., 12 Wash. 272, 40 Pac. Rep. 982; Craig v. Geddis, 4 W^ash. 390, 30 Pac. Rep. 396; but if there remains any material part of the work which could still reasonably be done in accordance with the contract, the architect may rightfully withhold his certificate until the contractor has completed the same; and so long as he can rightfully withhold his certificate, there can be no recovery without it: Craig v. Geddis, supra; Schmidt v. City of North Yakima, 12 Wash. 121, 40 Pac. Rep. 790. See also Gritman v. United States F. & G. Co. (W^ash.), 83 Pac. Rep. 6. =" Tally V. Parsons, 131 Cal. 516, 63 Pac. Rep. 833. =^ See § 238, ante, and § 242, post. Washington. Windham v. Independent T. Co., 35 Wash. 166, 76 Pac. Rep. 936. Diiitsatisfactlon with work, if done according to tlie contract, is not ground for withholding the certificate: Olson v. Snake River Val. R. Co., 22 Wash. 139, 60 Pac. Rep. 156. =" Dishonesty of architect: See Tally v. Parsons, 131 Cal. 516, 63 rac. Rep. 833. Certificate withlield by engineer fraudulently, same not required: Donegan v. Houston (Cal. App.), 90 Pac. Rep. 1073." Hawaii. Fraud of architect excuses procuring certificate of archi- tect as condition precedent: High v. Dunn, 11 Hawn. 37. Architect cannot be compelled, in a court of equity, to give such certificate, there being a plain, speedy, and adequate remedy at law: High V. Dunn, supra. 189 BUILDING CONTRACTS — COMMON CLAUSES. §§240,241 § 240. Waiver of certificate. Clauses in contract requir- ing certificate of architect are generally for the benefit of the owner of the building, for his satisfaction, and not for the benefit of the lien-holder, and may be waived by the former, at his option, or other proof accepted.-' Likewise as to ac- ceptance of the building by the architect.-* Waiver of the certificate as evidence of such completion is not an impair- ment of any claim or lien of any subclaimant under section twelve hundred and one.-" § 241. Same. Dismissal of architect. And where such cer- tificates are conditions precedent to payment, and the owner dismisses such architect and employs another, such action renders strict performance impossible ; and if the contractor " Valley L. Co. v. Struck, 146 Cal. 266, 270, 80 Pac. Rep. 405; Blethen v. Blake. 44 Cal. 117, 120. See McLaughlin v. Perkins, 102 Cal. .502, 36 Pac. Rep. 839. See Loup v. California So. R. Co., 63 Cal. 97; Newport W. & L. Co. v. Drew, 125 Cal. 585, 58 Pac. Rep. 187. New Mexico. And so where the owner was "to audit" the amounts certified by the engineer, he cannot avoid payment by refusing to audit the estimates: Ford v. Springer L. Assoc, 8 N. M. 37, 41 Pac. Rep. 541. Utah. Culmer v. Caine, 22 Utah 216, 61 Pac. Rep. 1008, 1009; and if the owners Intend to insist upon their rights to a final certifi- cate from the architect, they should notify the contractor; and if the certificate is refused, they can properly refuse payment for that reason: Id. \VaHhiii|:;:ton. Windham v. Independent T. Co., 35 Wash. 166, 76 Pac. Rep. 936; Washington Bridge Co. v. Land & R. Imp. Co., 12 Wash. 272, 40 Pac. Rep. 982. For the benefit of sureties: De Mattos v. Jordan, 15 Wash. 378, 393, 46 Pac. Rep. 402. Fact that i>uyiiieiit.s had been made from time to time, without requiring strict performance as to certificates and presentation of voucliers that tlie labor and materials liad been paid for, will not be held to be a waiver; and notwitlistanding the fact that tlie contract provided tliat tlie taking possession of the building witliout notice of any reservation of rights would be a waiver of a riglit to demand such certificate, the proof must be clear; for " wlien parties have entered into a solemn agreeinent in writing, by the terms of which certain things are to be required as a condition pre- cedent to payment, or other act by either party, and such conditions are of such a nature that tlieir performance or non-performance will also be evidenced by writings, public policy demands that neither of the parties sliall be held to have waived sucli conditions without proof of the clearest and most satisfactory kind": Brown v. Wine- hill, 3 Wash. 524, 28 Pac. Rep. 1037. ^ Valley L. Co. v. Struck, 146 CaL 266, 80 Pac. Rep. 405; Castagnino V. Balletta, 82 Cal. 250, 260, 23 Pac. Rep. 127. ■" Kerr's Cyc. Code Civ. Proc, § 1201. See also Valley L. Co. v. Struck, 146 Cal. 266, 271, 80 Pac. Rep. 405. § 242 mechanics' liexs. 190 obtaius the certificate of the architects in charge of the work, it is a sufficient compliance with the contract in that respect.^** § 242. Conclusiveness of certificate. But where the con- tract provides that payments shall be made on the certificate of an architect, who was required by the contract, among other things, to show that all the work of the mechanics, laborers, and others employed by the original contractor had been paid, the court said : " Whatever faithlessness there may have been on the part of the architect in giving his cer- tificates to the contractor, it cannot affect or prejudice the good faith of the owner in making her payments upon the faith of those certificates, for it was the mode of payment which had been agreed upon; and not only is the original contractor bound by his contract, but his material-men and workmen are also presumed to have had notice and knowl- edge of the terms of it, and of the rights and obligations of the parties thereto.^^ There is nothing in the contract or the mechanic's-lien law which required the architect to give notice of his decision that the contractor was entitled to his certificates. Such a provision, if it existed in the law, might afford some protection to those who have to do with dishon- est contractors. But, in the absence of such a provision, the certificate of the architect must be considered conclusive of the rights of the parties under the contract, unless it can be shown that it was obtained by the owner by collusion, or fraud, or mistake.'' ^- Such a rule, however, of course, has 3* Griffith V. Happersberger, 86 Cal. 605, 613, 25 Pac. Rep. 137, 487. Oregon. So where the owner prevents performance, so that the claimant cannot procure a certificate: Justice v. Elwert, 28 Oreg. 460, 43 Pac. Rep. 649. Waslilngton. Where the certificate of a firm of architects, which was dissolved, was required, the final certificate of the arcliitect acting in relation to the work was sufficient: Lavanway v. Cannon, 37 Wash. 593. 79 Pac. Rep. 1117. 3» Dingley v. Greene, 54 Cal. 333. 336, citing Shaver v. Murdock. 36 Cal. 293. '^ Dingley v. Greene, 54 Cal. 333, 336 (this case was decided before the enactment of §1201, Code Civ. Proc; q. v.). See Scanlan v. San Francisco & S. J. V. R. Co. (Cal.), 55 Pac. Rep. 694 (engineer's estimate): and compare Moore v. Kerr, 65 Cal. 519, 4 Pac. Rep. 542, See § 239, ante. 191 BUILDING CONTRACTS COMMON CLAUSES. §§243,244 reference only to those matters of which the certificate of the architect is made evidence by the terms of the contract. ^^ But where the certificate of the architect is not acted upon, and no payments are made thereon to the contractor, even if based upon falsely receipted bills provided in the contract to be furnished to the architect before such certificate is given, it seems that such certificate is not conclusive against nor an estoppel upon the contractor's material-men who may have given such false receipts.^* § 243. Extra work. Generally.^^ Many bitter contests have arisen over misunderstandings respecting the common clause of a building contract relating to " extra work." Whether such work is done under the original contract, or under an independent contract, is sometimes dil^cult to determine, depending for its solution upon the peculiar facts of each case, § 244. Same. Definition. Extra work may be tentatively defined to be such work as is not required to be performed Idaho. Final certificate and estimate of architect held not con- clusive: See Huber v. St. Joseph's Hospital, 11 Idaho 631, 83 Pac. Rep. 768. Utah. Fraud of engineers in estimates: See Garland v. McMartin, 8 Utah 150, 151, 30 Pac. Rep. 365. But see " Evidence," ^ 790, post. Washing^ton. Conclusiveness of certificate, made so by contract: See De Mattos v. Jordan, 15 Wash. 378, 393, 46 Pac. Rep. 402. See also Schmidt v. City of North Yakima, 12 Wash. 121, 40 Pac. Rep. 790, in which it was held that a city was not estopped from showing the fraudulent acceptance by the engineer of the work and mate- rials, and that the work and materials were inferior. Certiflcate of engineer an to completion of work according to con- tract, which provided that such certificate should be conclusive between the parties, held conclusive in favor of the contractor, although certificate was not in the language of the. contract: East- ham V. Western Const. Co., 36 Wash. 7, 77 Pac. Rep. 1051. '' See •' Evidence," §§ 789 et seq., post. " Washburn v. Kahler, 97 Cal. 58, 60, 31 Pac. Rep. 741. See also "Fraud," §239, ante. '= See Stimson v. Dunham Co., 146 Cal. 281, 284, 79 Pac. Rep. 968. Construction of contract as to wlietlior work is extra work, or work under the original contract, is for the court: See Gray v. La Societe Frangaise de B. M., 131 Cal. 566, 572, 63 Pac. Rep. 848. Evidence of extra work: See Sweeney v. Meyer, 124 Cal. 512, 516, 67 : ac. Rep. 479. See "Evidence," §797, post. § 2-15 mechanics' liens. 192 under the terms of the original contract, and which is not in pursuance of an adequate performance of such contract, but which is performed under an independent contract, express or implied. ^'^ § 245. Same. Extra work provided for in contract. Where the contract fixes a certain price for the work, and also provides that for any extra work a certain price shall be charged, whatever extra work is performed by the con- tractor is part of the work done under the contract. ^^ And ^ Colorado. The question of what constitutes extra work depends, as a general rule, upon the construction of the contract, and the contractor cannot recover for increased cost, as extra work, upon discovering- that he has made a mistake in his estimate of the cost, or that the work is more difficult and expensive than he anticipated; but where the contractor is ordered to make changes from the original contract plans, or to do work in some way connected with tlie original contract, but substantially independent of it. and the circumstances are such that the owner must know that tlie execution of such orders will cause extra labor and expense to the contractor, not contemplated by the original contract, he is liable to compen- sate the contractor tlierefor, as for extra work, in the absence of some express provision in the original contract to the contrary. An extra is somethir beyond or outside of the contract; it is something not provided for, and tlierefore not covered by the com- pensation stipulated: Hennessey v. Fleming Bros. (Colo.), 90 Pac. Rep. 77. " Gray v. Wells, 118 Cal. 11, 17, 50 Pac. Rep. 23. Colorado. Removing rubbish at the request of the owner, not within the terms of the contract, is extra work, and the reasonable value thereof may be recovered; but where more work than is antici- pated is required to carry out tlie contract, no recovery can be had for extra work to perform the contract; Hennessey v. Fleming Bros. (Colo.), 90 Pac. Rep. 77. As to -whether T»-ork is under the original contract, or is extra worlt, see Flick v. Hahn's Peak & E. R. C. & P. M. Co., 16 Colo. App. 485, 66 Pac. Rep. 453, 455. Hav^-aii. Work done to complete the contract is not extra work, although ordered in writing, as required for extra work in the con- tract; American-Hawaiian E. & C. Co. v. Territory, 17 Hawn. 195. Idaho. W'here a contract defined certain classes of material to be excavated, and in the progress of the work an unclassified mate- rial (hard-pan) was struck, and the contractor applied for a "hard- pan " classification, and was informed that he should have a fair classification, the contractor was held entitled to recover the reason- able value of removing the hard-pan; Spaulding v. Co^ur D'AIene R. & N. Co., 5 Idaho 528, 51 Pac. Rep. 408. Nevada. Where changes were made in the specifications by the owner, so that the contractor was obliged to supnly extra machinery and materials for a mill, they were held to have been supplied under the original contract, and not under a separate contract; Salt Lake H. Co. v. Chainman M. & E. Co., 137 Fed. Rep. 632, 635 (this case does not seem to be in line with the authorities). 193 BUILDING CONTRACTS — COMMON CLAUSES. §245 whatever work is done at the request of the owner to com- plete a contract is a continuation of the previous work, and done under the same contract.^* Where the question arose as to whether the work was done by the claimant under a contract of novation in place of the original contract, or w^hether the work was extra w^ork done under the original contract by the claimant as subcontractor, it was held that the expression " extra work " evidently had reference to the original contract for the conditions and terms under which it was done.^" Where, notwithstanding the contract is entire and indivis- ible, the work is done satisfactorily as agreed, according to the specifications of the contract, and, through the fault of Oregon. Changing- chimneys from common to pressed brick as part of the waU provided in contract: Chamberlain v. Hibbard, 26 Greg. 428, 38 Pac. Rep. 437. Where the contract requires the contractor "to rub down the brickwork on the street sides," the use of acids in so doing does not convert the work into "extra work": Id. The contractor cannot recover for columns to support balconies of a building, which were required, owing to the malperformance of the contract by the contractor, on any theory that the same are extras: Vanderhoof v. Shell, 42 Oreg. 578, 72 Pac. Rep. 126. WaHhiii)i;tun. Where one offered to furnish, at a certain price speci- fied, items of lumber for a building, extras to be furnished at the market price, and the offer was accepted, with the proviso that the price named should include all extras, and the seller furnished the lumber without objection, he was not entitled to additional com- pensation for extras furnished: Littell v. Saulsberry, 40 Wash 550 82 Pac. Rep. 909. As to alterations, see Brown's Exrs. v. Farnandis, 27 Wash. 232, 67 Pac. Rep. 574. See Cowles v. United States F. & G. Co., 32 Wash. 120. 72 Pac. Rep. 1032, 98 Am. St. Rep. 838 (as to alterations not material so as to make a new contract). Changes by oral agreement, extra work: See Long v. Pierce County, 22 Wash. 330, 61 Pac. Rep. 142, 146 (contract for erection Of schoolhouse, requiring contractor to proceed with work on written order of architect, notwithstanding objection to architect's valuation, which was to be submitted to arbitration; held, written order not prerequisite to recovery for extra work not called for in specifications, but required by detail plans subsequently furnished by architect). '*' Mclntyre v. Trautner, 63 Cal. 429, 430. See Conlee v. Clark 14 Ind. App. 205, 212, 42 N. E. Rep. 762, 56 Am. St. Rep. 303; General F. & E. Co. V. Schwartz Bros. Com. Co., 165 Mo. 171, 181, 65 S. E Rep. 318; Shaw v. Fjellman, 72 Minn. 457, 468, 75 N. W. Rep 705- Minneapolis T. Co. v. Great N. R. Co., 74 Minn. 30, 33, 76 N. W. Rep. 593* Disapproved: Avery v. Butler, 30 Oreg. 287. 293. 47 Pac. Rep. 706 ^* See Downing v. Graves. 55 Cal. 544, 550. Mech. Liens — 13 §§ 246-248 mechanics' liens. 194 the owner, a tunnel caved in, the work in repairing the tunnel is extra work.*** § 246. Same. Contract in writing. Where the original contract is not required to be in writing, the contract for extra work is not required to be in writing.^^ Where the con- tract provides, " No extra work to be paid for, unless the price has been fixed by the parties, the work named, and the agreement made at the time the extra work is done," there can be no recover^' for extra work, unless the provisions of the contract are complied with.*^ Likewise when the con- tract provides that the character and valuation of the extra work shall be agreed to and in writing consented to by the owner, although the architect gaVe verbal instructions to do such extra work.*^ § 247. Same. Verbal alteration of original contract. In those cases where the statute does not require an alteration of a written contract to be in writing, and the written con- tract provides that " no extra work is to be paid for except by contract in writing," the parties may verbally rescind this provision and agree to the alterations.** § 248. Same. Estoppel. But where the extra work is done with the knowledge and consent of the owner and his « McConneU v. Corona City W. Co., 149 Cal. 60, 63, 85 Pac. Rep. 929. " Barilari v. Ferrea. 59 Cal. 1, 4 (decided under § 1183 as it stood in 1876. Tliere was no provision for extra work in the original con- tract). ^ Likewise as to a written order, even wiiere the contract also pro- vides that the engineer may direct additions to the work: White v. San Rafael & S. Q. R. Co., 50 Cal. 417, 420; Meigs v. Bruntsch, 54 Cal. 601, 602. Montana. Wliere the contract provided that the order for such extra work should he in writing, it was held that no recovei-y could be had upon an express oral order for the work, or upon an implied contract without such written order: Wortman v. Kleinschmidt. 12 Mont. 316, 30 Pac. Rep. 280. Neva«la. See, as to waiver of similar clause, Truckee Lodge v. Wood. 14 Nev. 293, 305. *3 Gray v. La Socl6t6 Frangaise de B. M., 131 Cal. 566, 63 Pac. Rep. 848. " McFadden v. O'Donnell, 18 Cal. 160. 165. See Wortman v. Kleinschmidt, 12 Mont. 316, 343, 30 Pac. Rep. 280 (dis. op., De Witt, J.): Truckee Lodge v." \\'ood. 14 Nev. 307; Crowley v. United States F. & G. Co., 29 Wash. 268, 274, 69 Pac. Rep. 784. 195 BUILDING CONTRACTS — COMMON CLAUSES. §§249-251 agent, and they waive the written stipulation for a separate written estimate required by the contract, by orally agreeing to a continuance of the work without written estimates, which would not have been done but for such consent of the owner, he will not, on the principle of estoppel, be permitted to repudiate the extra work so done.^^ In the absence of the principle of estoppel, or of an express agreement to rescind an express clause of the contract re- quiring a written order or estimate before liability for extra work shall be incurred, no such liability arises.**' § 249. Same. Arbitration. A provision is sometimes in- serted for the determination of the value of the extra work by arbitration, and such provisions have been upheld as con- ditions precedent to recovery."*' § 250. Same. Void contract. Where the contract is void for non-compliance with the provisions of section eleven hun- dred and eighty-three of the Code of Civil Procedure, it was held that no lien could be enforced for extra work upon an implied contract, when the lieu could not have been enforced for the extra work under the original contract, if valid ; *^ but the extent of this doctrine, in the light of the recent de- cisions relative to the effect of the invalidity of the statutory original contract, has not been established.*** § 251. Payments. How considered herein. The subject of payments is closely connected with that of arbitrations,^" « Wyman v. Hooker, 2 Cal. App. 36, 41, 83 Pac. Rep. 79 (hearing In supreme court denied). <« J. M. Griffith Co. v. City of Los Angeles (Cal., Sept. 3, 189S), 54 Pac. Rep. 383; and see Gray v. La Society Frangaise de B. M., 131 Cal. 566, 570, 63 Pac. Rep. 848. " Holmes v. Ricliet. 56 Cal. 307, 312, 38 Am. Rep. 54. See "Arbi- tration," §§ 230-235, ante. Extra work subsiMiueut to nioTtgase: See "Priorities," §§ 486 et seq. Oregon. But as to waiving it by pleading to the merits, and not in abatement, see Chamberlain v. Hibbard, 26 Oreg. 428, 38 Pac. Rep. 437. Wiishington. Hughes v. Bravinder, 9 Wash. 595, 38 Pac. Rep. 209. See §§ 230-235, ante. *" Morris v. Wilson, 97 Cal. 644, 646, 32 Pac. Rep. 801. *» See "Void Contract," §§ 319 et seq., post. •• See §§ 230-235, ante. §§ 252, 253 mechanics' liens. 196 certificates,''^ extra work,^^ and performance,^^ and what is said elsewhere on those subjects will not be repeated here. The subject of the statutory requirements of California as to the provisions of the contract with reference to payments is considered under the head of " Statutory Requirements." ^* § 252. Same. Conditions precedent. Conditions prece- dent in a building contract are like conditions precedent in any other contract, and they must be performed by the con- tractor before payment can be required under the contract.^^ si 253. Same. Waiver. Where a contract contemplates the privilege of the owner to pay at his pleasure for mate- rials delivered, in advance of their delivery, conditioned that " See §§ 238-242, ante. B? See §§ 243-250, ante. ^3 See "Performance," §§334 et seq., post. Oregon. Where, by the terms of the building- contract, the con- tractor bound himself to " promptly pay, or cause to be paid, for all materials used by him under this contract, and for all labor ... in the construction and completion " of said building, held, that a fail- ure to promptly pay, or cause to be paid, for any such work or materials constituted a breach of such contract: Thompson v. Coffman, 15 Oreg. 631, 16 Pac. Rep. 713. AVashington. Failure to make payments, breach of contract: Anderson v. McDonald, 31 Wash. 274. 91 Pac. Rep. 1037. "* See Kerr's Cjc. Code Civ. Proe., § 1184. 65 Holmes v. Richet, 56 Cal. 307, 312, 38 Am. St. Rep. 54. See § 232, ante. As to eonditions preeedent, generally, see very full treatment in Kerr's Cje. Civ. Code, § 1439, note pars. 1-45; see also § 256, post. Contractor's order in favor of liis material-man, accepted by a third party, payable upon completion of the building, is not payable, where the building was destroyed by fire before completion, without fault of the material-inan or contractor, and nothing becomes due from the owner to the contractor: Hogan v. Globe M. B. & L. Assoc, 140 Cal. 610, 74 Pac. Rep. 153. Payment made before the comiueneenient of tlie ^'ork, indepen- dent promise: See Carpenter v. Ibbetson, 1 Cal. App. 272, 274, 81 Pac. Rep. 1114. Payments, ^vben due, acceptance of -ivork: See Newport W. & L, Co. V. Drew, 125 Cal. 585, 592, 58 Pac. Rep. 187. Arizona. See O'Connor v. Adams (Ariz.), 59 Pac. Rep. 105. Colorado. Orman v. Ryan, 25 Colo. 383, 55 Pac. Rep. 168. Montana. McGlauflin v. Wormser, 28 Mont. 177, 72 Pac. Rep^ 428. ]Ve-»v Slexico. Payment by deed of land: Ford v. Springer Li. Assoc, 8 N. M. 37, 41 Pac. Rep. 541. Oregon. Payment to agent: See Harrisburg L. Co. v. Washburn, 29 Oreg. 150, 44 Pac. Rep. 390. Payment to contractor's material-man at former's request: Allen V. Elwert. 29 Oreg. 428, 440, 44 Pac. Rep. 823, 48 Id. 54. 197 BUILDING CONTRACTS — COMMON CLAUSES. §254 such materials are satisfactory to the architect, this condi- tion is not waived by such advance payment.^" § 254. Same. Application of payments. The general principles of application of payment arc set forth in the Civil Code of California,^^ and they will not be considered here in detail. When, at the time that the owner pays an amount to the contractor, the former manifests an intention to apply it upon a particular obligation, and the latter knows of such intention, it is sufficient to fix the application of the payment, and the mode by which the debtor manifests his intention is immaterial. ^^ Pending the delivery of bricks, and within a few days thereafter, the original contractor paid money to his material-man without specially directing the application of the payment, and the plaintiff applied a portion of the money to the payment of a debt due him from the contractor previous to the time of the contract, and it was held that he 6« Bateman Bros. v. Mapel, 145 Cal. 241, 243, 78 Pac. Rep. 734. See S 240, ante. Oregon. Waiver of final certificate of architect as a condition to suit for final payment: See Vanderhoof v. Shell, 42 Oreg. 578, 72 Pac. Rep. 126. See also Hand Mfg. Co. v. Marks, 36 Greg. 523, 59 Pac. Rep. 549, 552. ■■' KerrVs Cye. Civ. Code, § 1479, and note. ■■" Hanson v. Cordano, 96 Cal. 441, 31 Pac. Rep. 457 (valid statutory- original contract. In this case the original contractor attempted to apply the payment to a former debt owing to him by the owner). Oregon. A debtor, when he pays a sum of money to his creditor, may direct to which of different debts due from him to his creditor it shall be applied. If he does not so direct, the creditor may make the application of the payment, and if neither of the parties make the application, then the court may make it, and will generally apply it on a debt that is unsecured, in preference to one that is secured: Trullinger v. Kofoed, 7 Oreg. 228, 33 Am. Rep. 70S. Utah. Application of payments: See Sierra Nevada L. Co. v. Wliitmore, 24 Utah 130, 66 Pac. Rep. 779, 781. Wushingrton. Where a joint mechanic's lien against several houses was released as to one of the houses, in consideration of payments already made, such payments should be applied, first to the amount due on account of the house released, and then pro rata to the others: Powell v. Nolan, 27 W'ash. 318, 67 Pac. Rep. 712, 720. Applieation of payments: See Burnett v. Ewing, 39 Wash. 45, sul) nom. Burnett v. Kirk, 80 Pac. Rep. 855; Spaulding v. Burke, 33 Wash. 679, 74 Pac. Rep. 829. Creditor has right to apply paynients ivhen the debtor does not make application: Powell v. Nolan, 27 Wash. 318, 67 Pac. Rep. 712 718. Application of pnynientH, mortgage, extras: See likewise Powell V. Nolan, 27 Wash. 318, 67 Pac. Rep. 712, 719. § 255 mechanics' liens. 198 had no right to do so, the court saying, " If this could be done, it would have the effect of subjecting the owner to the payment of other debts between the contractor and his em- ployees outside of his building contract." ^^ Where subclaimants apply payments made to them by the contractor, to another building contract, and other uncon- nected claims against the contractor, the owner of the build- ing cannot apply such payments to reduce the demand of the subclaimants, even if the contractor uses the receipt from the subclaimants in obtaining a credit on the building con- tract, and in inducing the owner to make further advances, if the subclaimants repudiate such application by the owner, and the subclaimants settle with the contractor, without his claiming the benefit thereof, and the procuring of additional money from the owner, by such receipt of the contractor, was without the knowledge or consent of the subclaimants • but the rule may be otherwise if the owner is misled, or would otherwise pay the contractor or other creditor more money than the amount of his indebtedness to the contractor.*" § 255. Liens. Statutory provision. California. Section twelve hundred and one of the Code of Civil Procedure pro- vides : " It shall not be competent for the owner and con- tractor, or either of them, by any term of their contract, or otherwise, to w^aive, affect, or impair the claims and liens of other persons, whether with or without notice, except by their written consent, and any term of the contract to that effect shall be null and void." °^ s» Goss V. StreUtz, 54 Cal. 640, 645. Montana. See Christnot v. Montana G. & S. M. Co., 1 Mont. 44 (owner's laborer may appropriate, if owner does not do so). «» Schallert-Ganahl L. Co. v. Neal, 91 Cal. 362, 365, 27 Pac. Rep. 743. Oregon. Where the owner, relying upon a waiver of subclaim- ants, pays the balance due to the contractors, the lien is lost: Hug-hes V. Lansing, 34 Oreg. 118, 55 Pac. Rep. 95, 75 Am. St. Rep. 574. Equal application o£ payment on two bonnes: Smith v. 'Wilcox, 44 Oreg. 323. 74 Pac. Rep. 708. «i Whittier v. W^ilbur, 48 Cal. 175, 177 (1867-68). In Bowen v. Aubrey, 22 Cal. 566, 571 (1858), the contract provided that the con- tractor should not sublet without the written permission of the owner, and should not encumber, nor suffer to be encumbered, t!)e building or lot by any liens, and it was held that the contractor having waived his right to a lien, his subcontractor, having notice of the contract, and having performed the said contract without the written consent, was held bound by the terms of the original con- 199 BUILDING CONTRACTS COMMON CLAUSES. §-56 § 256. Same. Condition precedent. Where the contract provides " that for each of said payments a eertificate shall be obtained from and be signed by the architect, and also, that at the time of the presentation of either of said certifi- cates there be neither opposition against the said payments, nor any liens against the aforesaid building," the existence of such a lien constitutes a good and sufficient reason for non-payment.*^- tract, and to have waived his lien; but thei'e was no provision in the statute like § 1201, Kerr's Code Civ. Proe. \%"a)!ihingtoii. See Huttig- Bros. Mfg. Co. v. Denny Hotel Co.. 6 Wash. 122, 125, 34 Pac. Rep. 774. 62 Holmes v. Richet, 56 Cal. 307, 316, 38 Am. St. Rep. 54. As to condition precedent, see § 252, ante. Agreement of contractor not to tile lien: See Knowles v. Baldwin, 125 Cal. 224, 226, 57 Pac. Rep. 988. See note 1 Am. & Eng-. Ann. Cas. 954. Colorado. Where a contractor is not to allow any subliens to be set up, or, otherwise, to cause them to be satisfied, and there is no provision in the contract prohibiting the contractors themselves from filing a claim of lien, subclaimants may nevertlieless claim a lien, the contract merely providing for the satisfaction thereof by the con- tractor, if asserted: Aste v. Wilson, 14 Colo. App. 323, 59 Pac. Rep. 846. And the contractors themselves might file a lien: Id. Hawaii. An agreement by the contractor to give sufficient evi- dence that the premises are free from liens, and to indemnify the owner for payments made in discharging liens, does not estop the material-men and contractor's subcontractor from enforcing a lien: Allen v. Redward, 10 Hawn. 151, 157; but it might estop the original contractor from filing a lien (dictum): Id. Montana. Payment cannot be demanded except only upon satis- factory proof that there was no claim or lien against the building, when the contract so provided: Franklin v. Schultz, 23 Mont. 165, 57 Pac. Rep. 1037. Nevada. Lien not waived by stipulating in the original contract that the title to machinery should not pass to the purchaser until all payments should be made in cash : Salt Lake H. Co. v. Chainman M. & E. Co., 128 Fed. Rep. 509, s. c. 137 Fed. Rep. 632. See Hooven v. Featherstone, 111 Fed. Rep. 81, 95 C. C. A. 229, and authorities cited. Xew Mexico. But where the contract provides for such certificate of an engineer, and a showing that no claims of lien have been filed, and the contractor complies therewith, and subsequently files his claim by reason of failure of the owner to pay, the fact tliat claims of lien are subsequently filed by subclaimants will not affect his lien : Ford v. Springer L. Assoc. 8 N. M. 37, 41 Pac. Rep. 541, s. c. affirmed. 168 U. S. 513, bk. 42 L. ed. 562, 18 Sup. Ct. Rep. 170. Oregon. Where the building is to be kept free from liens for a certain period beyond the time for malting the last payment, the contractor is not entitled to such payment, if such liens were then upon the building : Henry v. Hand, 36 Oreg. 492, 59 Pac. Rep. 330. Where the contract provided that the owner should be satisfied, before making tlie final payment, that no liens had been placed on the property, this is no defense to the contractor's claim, where the owner incurred the indebtedness for which a material-man filed a lien ; Vanderhoof v. Shell, 42 Oreg. 578, 72 Pac. Rep. 126. 131. § 257 mechanics' liens. 200 § 257. Same. Public property. And where the contract is to erect a monument upon public property, a clause in the contract, that " before any payment is made under the con- tract the contractor shall satisfy the said architects " that all materials furnished, and all the work of mechanics, laborers, and others employed or hired by the contractor, " have been fully paid, so that no lien can be filed against said work," etc., is unnecessary, since no lien can be had upon public property.^^ W'a.shiugton. The contractor may recover the balance of the con- tract price, when the contract provides that when it has been fully performed, and upon a showing made that there are outstanding no claims by reason of work performed or materials furnislied that could be made the basis of a lien, the owner would pay the con- tractor the balance due and unpaid, if the contractor exhibits to the owner receipts and vouchers for all labor performed and materials furnished, showing- them to be fully paid for : Lavanway v. Cannon, 37 Wash. 593, 79 Pac. Rep. 1117. "3 Griffith v. Happersberger, 86 Cal. 605, 613, 25 Pac. Rep. 137, 487. See "Public Property," S 192, ante. 201 NON-STATUTORY ORIGINAL CONTRACTS. § 258 CHAPTER XIV. BUILDING CONTRACTS (CONTINUED). NON-STATUTORY ORIGINAL CONTRACTS. § 258. Method of treatment. § 259. Statutory and non-statutory original contracts compared. § 260. Same. Implied contract. § 261. Same. Contract price less than one thousand dollars. S 262. Same. Contract price computable. § 263. What in no event a statutory original contract. f 264. Provisions not applicable to non-statutory original contracts. § 265. Same. Writing. Filing. Payments. § 266. Same. Notice to owner. Premature payments. § 267. Same. Payment in land. § 268. Same. Alteration of contract. Conspiracy. § 258. Method of treatment. In this chapter will be con- sidered : 1. Non-statutory original contracts in general; that is, contracts not required by the mechauic's-lien law to be in the form prescribed by the statute/ and their differentiation from statutorj^ original contracts. In the following chapter - will be considered : 2. Statutor}^ original contracts ; and herein : A. Statutory requirements not essential to the validity of the whole statutory original contract ; and hereunder : a. Provisions imposing a penalty; and b. Provisions avoiding certain clauses. And in the second chai)ter following-' will be considered: B. Statutory requirements essential to the validity of the whole statutory original contract. In the succeeding or third chapter following * this chapter will be discussed : 3. The effect of the validity and invalidity of the statu- tory original contract. ' Kerr's Cyc. Code Civ. Proc, § 1183. ^ Chapter xv. ' Chapter xvi. * Chapter xvii. §§ 259-261 mechanics' liens. 202 § 259. Statutory and non-statutory original contracts compared. The definitions of statutory and non-statutory original contracts have already been given. ^ A " non-statu- tory " original contract, under the California statute, can be distinguished from a " statutory " original contract by a careful examination of the terms of section eleven hundred and eighty-three of the Code of Civil Procedure,^ and "vvill be specifically pointed out and illustrated in this and suc- ceeding chapters. In the statutory original contracts the amount agreed to be paid must exceed one thousand dollars.'' § 260. Same. Implied contract. It is evident from what has been said, that where the contract price is not expresslj^ agreed to be paid, but is left to implication of law, it is not a " statutory original contract," but is a " non-statutory ori- ginal contract " ; ^ and in such case the implied contract for labor or materials is not complete until after the labor is done, or the materials are furnished, at the request of the owner of the contemplated structure.® § 261. Same. Contract price less than one thousand dol- lars. In those cases where the original contract price, " See § 214, ante. '• Non-statutory and statutory orii^inal contracts. Care must be taken, in considering- decisions with reference to this point, to note that the section was first amended in 1885 so as to create this dis- tinction, and that cases of contracts previous to that time, where the agreed value was over one thousand dollars, stand upon the same footing as '" non-statutory original contracts " (except, in a sligiit degree, in the case of any decision rendered under § 2 of the act of April 26, 1862). Colorado. Laws 1899, pp. 261, 262, § 1 (3 Mills's Ann. Stats., 2d ed.. § 2267), provides for a similar statutory original contract, when the amount to be paid exceeds five hundred dollars; but the statute simply makes the property of the owner subject to the lien for the value of the labor performed and materials furnished, and does not make the original contract void. ' The t;:eueral riu'litis and duties under statutory orig:inal contracts wnll be further considered under the head of "Valid Statutory Origi- nal Contracts," §§ 315 et seq., post. » Rebman v. San Gabriel V. L. & W. Co., 95 Cal. 390, 393, 30 Pac. Rep. 564. Colorado. See Small v. Foley, 8 Colo. App. 435, 47 Pac. Rep. 64 (1893). See preceding note. » Rebman v. San Gabriel V. L. & W. Co., 95 Cal. 390, 393, 30 Pac. Rep. 564. Colorado. See Small v. Foley, S Colo. App. 435. 47 Pac. Rep. 64 (ISn.l). II 203 NON-STATUTORY ORIGINAL CONTRACTS. § 262 although express, does not exceed one thousand dollars, it is not a " statutory original contract," but is a " non-statutory original contract." ^° In this connection the court has said : " It was not in- tended, we think, that, in order to preserve the right of lien, a laborer [sic] or contractor should be put to the trouble of entering into a written contract, and reserving twenty-five per cent of the contract price for thirty-five days after the completion of the work, in cases where the contract price is less than one thousand dollars. The rule contended for would be a harsh one in cases where the contract price was less than one thousand dollars, — small amounts." ^^ § 262. Same. Contract price computable. When the con- tract necessarily shows that the agreed price is more than one thousand dollars, as by fixing a rate per yard, and the number of yards would bring the price to more than one thousand dollars, it is a statutory original contract, and must comply Avith the provisions of section eleven hundred and eighty-three ; ^- but otherwise if it does not expressly appear from the contract that the agreed price is more than one thousand dollars.^'' Evading statute. The requirements of the statute as to statutory original contracts cannot be evaded by failing to express the contract price in the contract, when, as a matter of fact, a price in excess of one thousand dollars is actually and necessarily agreed upon.^* >" Sidling-er v. Kerkow, 82 Cal. 42, 45, 22 Pac. Rep. 932; Kerckhoff- Cuzner M. & L. Co. v. Cummings, 86 Cal. 22, 25, 24 Pac. Rep. 814; Deni- son V. Burrell. 119 Cal. 180. 51 Pac. Rep. 1; Southern California L. Co. V. Jones, 133 Cal. 242, 245, 65 Pac. Rep. 378. " Sidlinger v. Kerkow, 82 Cal. 42, 45, 22 Pac. Rep. 932. " Smith V. Bradbury, 148 Cal. 41, 82 Pac. Rep. 367, 113 Am. St. Rep. 189. This case, however, failed to notice the opinion on the same con- tract in Snell v. Bradbury, 139 Cal. 379, 383, 73 Pac. Rep. 150, in which case the question arose as to effect of the failure to state the con- tract price expressly in the contract, and it was held that the contract need not express a price when no expressed price was agreed upon. It is believed that the doctrines contained in the text are all that can be safely said to have been decided in these cases as they stand. '•■' Snell v. Bradbury, 139 Cal. 379, 383, 73 Pac. Rep. 150; but see same contract in Smith v. Bradbury, 148 Cal. 41, 82 Pac. Rep. 367, 113 Am. St. Rep. 189. '^ Smith v. Bradbury, 148 Cal. 41, 82 Pac. Rep. 367, 113 Am. St. Rep. 189. See '• Original Contract," § 211, ante. §§ 263-265 mechanics' liens. 204 § 263. What in no event a statutory original contract. Where the contract is not an original contract at all, as, for instance, in the case of the contract of a mere material-man, the provisions of sections eleven hundred and eighty-three and eleven hundred and eighty-four of the Code of Civil Procedure as to the formalities of the contract have no application whatever, whether the agreed price is more or less than one thousand dollars. ^° And, likewise, a contract for street-work, under section eleven hundred and ninety- one, is not a statutory original contract.^*^ § 264, Provisions not applicable to non-statutory original contracts. It may be stat(^d generally that the statutory pro- visions specially applicable to statutory original contracts are not required in the case of non-statutory original con- tracts.^' And unless the language used in the statute, " his contract," " the contract," ete., is construed to allude only to the statutory original contracts prescribed by the stat- ute, ^'^ it may be somewhat difficult to determine when such provisions are or are not applicable to a contract under investigation. § 265. Same. Writing. Filing, Payments. The supreme court has held that, under the California statute, non- statutory original contracts need not be in writing ; ^® nor filed, if written ; ^° neither, under these decisions, need twenty-five per cent of the whole contract price be payable at least thirty-five days after the final completion of the '^ Extremely inisleadini; are some expressions of the court in tlie decisions in Santa Monica L. & M. Co. v. Hege. 119 Cal. 376, 378, 51 Pac. Rep. 555, and Madera F. & T. Co. v. Kendall, 120 Cal. 182, 184, 52 Pac. Rep. 304, 65 Am. St. Rep. 117, althougli the judgments are un- doubtedly correct. " See § 215, ante. " Sidlinger v. Kerkow, 82 Cal. 42, 45, 22 Pac. Rep. 932. And see Kerckhoff-Cuzner M. & L. Co. v. Cummings, 86 Cal. 22, 25, 24 Pac. Rep. 814. " Kerr's Cyo. Code Civ. Proo., § 1183. »» Southern Cal. L. Co. v. Jones, 133 Cal. 242, 244, 65 Pac. Rep. 378. "> Southern Cal. L. Co. v. Jones, 133 Cal. 242. 244, 65 Pac. Rep. 378; Nason v. John, 1 Cal. App. 538, 541, 82 Pac. Rep. 566. See note 25, post, this chapter. i 205 NON-STATUTORY ORIGINAL CONTRACTS. § 266 work;-^ nor need the contract price be payable in instal- ments, nor after the commencement of the work.-- But the contract price may, in such case, be made payable before the work is commenced, or may be made payable after the build- ing is completed, or at such other time or times as the owner and contractor may have agreed.-^ § 266. Same. Notice to owner. Premature payments. In those cases in which the contract ju-ice is not required by the statute to be paid according to the provisions of section eleven hundred and eighty-four of the Code of Civil Pro- cedure, it may be paid in accordance with the terms of the contract. Thus in an early case, there being a non-statutory original contract, it was held that where the statute gives a lien " to the extent of the original contract price " to the original contractor, a lien was given only for an amount not exceeding the sum to become due to such contractor for the benefit primarily of subclaimants, and where the sub- contractor has been fully, and not prematurely, paid by the original contractor, in accordance with their contract, the former's subclaimants can demand nothing from the original contractor or owner, nor by notice intercept any amount due from the owner to the contractor ; and their right to enforce a lien is limited to the sum due from contractor to the sub- contractor at the tirae.^* =' Southern Cal. L. Co. v. Jones, 133 Cal. 242, 244, 65 Pac. Rep. 378- Sidlinger v. Kerkow, 83 Cal. 42, 45, 22 Pac. Rep. 932 (under one thou- sand doUars); Kerckhoff-Cuzner M. & L. Co. v. Cumming-s, supra (under one thousand dollars); Denlson v. Burrell, 119 Cal. 180 182 51 Pac. Rep. 1 (under one thousand dollars). Colorado. Contract was not required, under ch. Ixv, Gen. Stats., to be under seal or in writing: Williams v. Uncompahg-re Canal Co 13 Colo. 469, 479. 22 Pac. Rep. 806. =2 Kerckhoff-Cuzner M. & L. Co. v. Cumming-s, 86 Cal. 22, 25, 24 Pac. Rep. 814; Denison v. Burrell, supra. See Russ L. & M. Co.' v. Garrett- son, 87 Cal. 589, 592, 25 Pac. Rep. 747. ^ Southern Cal. L. Co. v. Jones, 133 Cal. 242, 244, 65 Pac Rep 378- Denison v. Burrell, 119 Cal. 180, 182, 51 Pac. Rep. 1; Nason v John' 1 Cal. App. 538, 541, 82 Pac. Rep. 566. ■'* Dore V. Sellers, 27 Cal. 588, 594 (1862). See Southern Cal. L. Co v Jones, 133 Cal. 242, 244, 65 Pac. Rep. 378. See also "Rights of Subcontractor," §§70-73, ante: "Lien as Lim- ited by Contract," §315, post; "Liability of Owner," §§526 et seq post. §§ 267. 268 mechanics' liens. 206 This doctrine has been broadened recently, even in the ease of original contracts, and it is now lield that where there is a non-statutory original contract, the payment of the contract instalments, if any, is subject to change l)y agreement of the owner and contractor, both as to time and amount, as in the case of private contracts relating to other matters, and section twelve hundred and one, as to the im- pairment of liens, has no application ; '^ and if the owner, under such a contract, makes a premature payment to the contractor before notice is served upon him by a subclaim- ant, he is not liable.^® § 267. Same. Payment in land. A non-statutory original contract may be made payable in money, or in anything else the parties thereto may agree upon; but a subclaimant under such a non-statutory original contract may foreclose a lien, notwithstanding the contract price is less than one thousand dollars, and is payable in something other than money, for instance, land, if it has not been in fact paid when the claim of lien was filed and the action commenced.^^ § 268. Same. Alteration of contract. Conspiracy. The terms of a non-statutory original contract, if in writing, may be altered by a contract in writing or by an executed oral agreement, and not otherwise.^^ And it seems that the provisions as to conspiracy in reference to the contract price have no application to non-statutory original contracts.-" =^ Southern Cal. L. Co. v. Jones, 133 Cal. 242, 244, 65 Pac. Rep. 378. But see certain expressions in the opinion in Nason v. John, 1 Cal. App. 538. 540. 82 Pac. Rep. 5G6, in whicli the court fails to note the great distinction, in this respect, between statutory and non-statutory original contracts. 26 Southern Cal. L. Co. v. Jones, 133 Cal. 242, 244, 65 Pac. Rep. 378. See Los Angeles Pressed Brick Co. v. Los Angeles P. B. & D. Co. (Cal. App., Jan. 23, 1908), 94 Pac. Rep. 775. =• Under Kerr's Cvc. Code Civ. Proc, §§ 1183, 1184, and Kerr'« Cyc. Civ. Code, §1201: Schmid v. Busch, 97 Cal. 184, 188, 31 Pac. Rep. 893. See, however, "Payment," §280, post, it now being held that the statutory original contract may provide for payment other than in "^°" Anderson v. Johnston, 120 Cal. 657, 659, 53 Pac. Rep. 264; Kerr'a Cyc. Oiv. Code, § 1698, and note. See " Alteration of Contracts." § 326, post. » See Sidlinger v. Kerkow, 82 Cal. 42, 46,' 22 Pac. Rep. 932. 207 STATUTORY ORIGINAL CONTRACTS. § 269 CHAPTER XV. BUILDING CONTRACTS (CONTINUED). STATUTORY ORIGINAL CONTRACTS. A. Statutory Requiremexts not Essential to the Validity of the Whole Statutory Original Contract. § 269. Provisions imposing a penalty. Payments, in general. Statu- tory provision. § 270. Same. Scope and object of these provisions. § 271. Same. Substantial compliance required. Effect. § 272. Same. Contract price not to be payable in advance of the work. § 273. Same. Contract price payable in instalments, or after com- pletion. § 274. Same. Payment of twenty-five per cent thirty-five days after completion. § 275. Same. The object of this provision. § 276. Same. General rule. § 277. Same. Illustrations. Sufficient compliance. § 278. Same. What not substantial compliance. § 279. Same. Provision as to liens. § 280. Same. Payment in money. § 281. Same. Contractor's bond. Provision unconstitutional. § 282. Same. Effect of giving bond. Common-law obligation. § 283. Same. Previous decisions concerning bond. § 284. Provisions avoiding certain clauses. Impairment of liens. Statutory provision. § 285. Same. Provision, when not applicable. A. STATUTORY REQUIREMENTS NOT ESSENTIAL TO THE VALIDITY OP THE WHOLE STATUTORY ORIGINAL CONTRACT. § 269. Provisions imposing a penalty. Payments, in gen- eral. Statutory provision. The Calit'oruia luechaiiie's-lien law ^ provides: " No part of the contraet price shall, by the terms of any such contract, be made payable, uur shall the same or any part thereof be paid in advance of the com- mencement of the work, but the contract price shall, by the terms of the contract, be made payable in instalments at specified times after the commencement of the work, or on • Kerr's Cjc. Code Civ. Proc., § 1184. §§ 270, 271 mechanics' liens. 208 the completion of specified portions of the work, or on the completion of the whole work; provided, that at least twenty-five per cent of the whole contract price shall be made payable at least thirty-five days after the final comple- tion of the contract. ... As to all liens, except that of the contractor, the whole contract price shall be payable in money, and shall not be diminished by any prior or subse- quent indebtedness, offset, or counterclaim, in favor of the reputed owner and against the contractor; no alteration of any such contract shall affect any lien acquired under the provisions of this chapter. In case such contracts and alter- ations thereof do not conform substantially to the provisions of this section, the labor done and materials furnished by all persons except the contractor shall be deemed to have been done and furnished at the personal instance and request of the person who contracted with the contractor, and they shall have a lien for the value thereof." ^ § 270. Same. Scope and object of these provisions. The expression " any such contract,"' in this provision, refers to the statutory original contract of section eleven hundred and eighty-three.^ The object of these provisions seems to be to give ample opportunity to claimants to intercept moneys in the hands of the owner, by notice to him or by filing their claim of lien,* and are for the benefit of lien claimants.^ § 271. Same. Substantial compliance required. Effect. Only substantial compliance with the provisions of section eleven hundred and eighty-four is required." This section does not declare the contract to be void in case it does not = AinendineBt o£ 1885 to this section made the whole contract void by a failure to comply substantially with its provisions; but the amendment of 1887 changed the penalty, as above shown: See San Diego L. Co. v. Wooldredge, 90 Cal. 574, 577, 27 Pac. Rep. 431; Ganahl v. Weir, 130 Cal. 237, 239, 62 Pac. Rep. 512. Colorado. Similar provision : Laws 1899, pp. 263-265, § 2, 3 Mills's Ann. Stats. Supp.. § 2868. 3 Sidlinger v. Kerkow, 82 Cal. 42, 44, 22 Pac. Rep. 932. * See "Obligations of Owner as Fixed by Notice," §§547 et seq., post. 5 Southern Cal. L. Co. v. Jones, 133 Cal. 242, 244, 65 Pac. Rep. 378. • Brill v. De Turk, 130 Cal. 241, 243, 62 Pac. Rep. 462. 209 STATUTORY ORIGINAL CONTRACTS. § 272 conform substantially to its provisions/ It requires good faith on the part of the owner, however ; ^ and only imposes a penalty upon the owner by making his property subject to liens for labor done and materials furnished," and the court indulges every reasonable intendment to avoid these penal- ties." In case of material non-conformity with these provisions of section eleven hundred and eighty-four, sublienors maj^ enforce their liens, irrespective of the amount due under the contract.^ ^ The provision in the section that, under such circumstances, the work and materials are deemed to have been done at the personal instance and request of the person w^ho contracted with the contractor does not mean that such person is personally liable, but that a lien may be enforced against the property for the value of the work or materials. ^^ § 272. Same. Contract price not to be payable in ad- vance of the work. Under the meehanic's-lien law,'^ no part of the contract price should be payable in advance of the commencement of the work, under the terms of a statutory original contract. Under section five of the act of 1862,^' which did not re- quire the contract price to be payable in any particular man- ' Stimson M. Co. v. Riley (Cal.), 42 Pac. Rep. 1072; San Diego L. Co. V. Wooldredge, 90 Cal. 574, 579, 27 Pac. Rep. 431. See Yancy v. Morton, 94 Cal. 558. 561, 29 Pac. Rep. 1111. " Stimson M. Co. v. Riley (Cal.), 42 Pac. Rep. 1072, 1074; Joost v. Sullivan. Ill Cal. 286, 296, 43 Pac. Rep. 896. 9 Stimson M. Co. v. Riley (Cal.), 42 Pac. Rep. 1072. 1" Brill V. De Turk, 130 Cal. 241, 243, 62 Pac. Rep. 462; Stimson M. Co. V. Riley (Cal.), 42 Pac. Rep. 1072; San Diego L. Co. v. Wooldredge, 90 Cal. 574, 579, 27 Pac. Rep. 431. See Yancy v. Morton, 94 Cal. 558, 561, 29 Pac. Rep. 1111; West Coast L. Co. v. Knapp. 122 C;il. 79, 54 Pac. Rep. 533. See S 26, ante. " San Diego L. Co. v. \Vooldredge, 90 Cal. 574, 579, 27 Pac. Rep. 431. " .-see "Liability of Owner." S 539, post. Kerr's Cyc. Code Civ. Proc., I 1184. seems simply to nullify any payment, under a statutory origi- nal contract, which is prematurely made, and does not affect any other payment which is valid. Colorado. See Chicago L. Co. v. Newcomb. 19 Colo. App. 265, 74 Pac. Rep. 786, 787. " Kerr's Cyo. Code Civ. Proc, § 1184. See Soutliern Cal. L. Co. v. Jones. 133 Cal. 242, 244, 65 Pac. Rep. 378. " Act of April :•«, 1S(S2. Stats. 1862. p. 385, repealing prior acts; itself repealed, Stats. 1867-68, p. 594. Principal features of statute of April 26, 1862. is embodied in § 1184, Code Civ. Proc. Mech. Liens — 14 § 273 MECHAXICS' LIEXS. 210 ner under the terms of the contract, it was held that if the contractor engages to construct a building in consideration, in whole or in part, of a debt then due from him to the em- ployer, or of a sum paid him by the employer upon the exe- cution of the contract, that portion of the contract price rep- resented by the debt or the advance payment cannot become a lien upon the building.^" § 273. Same. Contract price payable in instalments, or after completion. In a statutory original contract the con- tract price must be payable in instalments at specified times after the commencement of the work, or on the completion of specified portions thereof, or on the completion of the whole work.'*' It seems that the statute does not fix the time of any payment, except the final instalment, and it does not make the time there fixed the test of liability, as the contract must furnish the test.'^ Payments provided for, to material-men. Where the con- tract provides for payments to be made, through the owner, to the material-men when the materials were used on the building, and to the mechanics and laborers weekly for work actually done, it is specific enough as to time, and complies substantially with the statute ; '^ and where a statutory ori- ginal contract provides for progress instalments, in analogy to the rule as to the completion of the building for the pur- pose of filing claims of lien, " a trivial imperfection " in the work will not cause an instalment to be prematurely paid, where the claimant is not injured, so as to create a further liability against the owner's property to the extent of such instalment.'^ When tMrd payment to contractor was to be made when the building and improvements should be " completed and ac- 15 Dore V. Sellers, 27 Cal. 588, 593. >» Kerr's Cyc. Code Civ. Proc, § 1184. See §§ 269 et seq., ante. 1' Valley L. Co. v. Struck, 146 Cal. 266, 272, 80 Pac. Rep. 405, concur- ring opinion of Shaw, J.; and see this case generally on the whole subject. " Reed V. Norton, 90 Cal. 590, 601, 34 Pac. Rep. 333. See Brill v. De Turk, 130 Cal. 241, 242, 62 Pac. Rep. 462. ' 1" Stimson M. Co. v. Rfley (Cal.), 42 Pac. Rep. 1072, 1074. See "Premature Payments." §§269 et seq., ante; and "Obligations of Owner," §§ 522, 541, 554 et seq., and §§ 563, 600, post. 211 STATUTORY ORIGINAL CONTRACTS. § 274 cepted by the architect," the fact that the owner made such payment after the completion of the building, and before the acceptance by the architect, does not render the pay- ment invalid as to lien-holders, under section eleven hundred and eighty-four, where such lien-holders had not given pre- vious notice of their claims, as provided in that section.-*^ Provision for payment of bills. Sufficiency. Where a stat- utory original contract recites that " all bills for material and labor, when indorsed by the contractor, will be paid on demand, provided that said bills for material and labor do not exceed seventy-five per cent of the value of the material and labor employed in the erection of said building up to the date of said bills," it is a substantial compliance with the statute as to the times and amounts.-^ Provision for withholding percentage of contract price. And a statutory original contract requiring " twenty-five per cent of the contract sum to remain unpaid until thirty-five daj's from and after the completion " of the building, and its acceptance by the architect and " the remaining amount to be paid in partial payments in amount equal to seventy-five per cent of the value of the work done and materials fur- nished at the time of such payments," complies substantially with the section. -- § 274. Same. Payment of twenty-five per cent thirty-five days after completion.^^ Under a California statutory origi- nal contract, at least twenty-five per cent of the whole con- tract price must be made pa3^able at least thirty-five days '" Valley L. Co. v. Struck, 146 Cal. 266, 270, 80 Pac. Rep. 405. " The court say: "The contract goes even further than the stat- ute, because, by its terms, there must be at all stages of the work at least twenty-five per cent of the value of the work and labor fur- nished unpaid to the contractor and still in the hands of the owner of the building. The safeguard intended by the statute is accomplished in the contract, and this is all that is necessary, because the penalty for the disregard of the statute attaches only when the contract does 'not conform substantially to the provisions of this section'": Brill V. De Turk, 130 Cal. 241, 243, 62 Pac. Rep. 462. " Dunlop V. Kennedy (Cal.), 34 Pac. Rep. 92 (rehearing granted. On the subse(iuent liearing this point was eliminated). See § 274. post. ^ Ah to oftNetN against stipulated payments, see Hampton v. Chris- tensen, 148 Cal. 729, 84 Pac. Rep. 200. §§275,276 mechanics' liens. 212 after the final completion of the contract,^* and if it omits so to provide, it is void as to all persons furnishing material or performing labor upon the building, whether before or after the filing of the contract.-^ § 275. Same. Object of provision. The object of this pro- vision is for the protection of subcontractors, material-men, and laborers, thus giving them, if unpaid, ample time, after the work is completed, to file their claims of lien and secure payment of any sums of money due them.-'' Owner pays at his own risk claims of liens asserted against the final twenty-five per cent of the contract price, when he does so without an order of court or any judgment as to their validity.-' Partial payments may be safely made by the owner, it seems, provided subclaimants do not give notice, as required by section eleven hundred and eighty-four; and in the ab- sence of such notice they must rely upon the personal respon- sibility of the contractor, and the twenty-five per cent of the whole contract price required to be retained for thirty-five days after the completion of the work ; and in such case they are in no wise affected by any uncertainty as to the time when partial payments are to be made, nor by payments thereof in advance of the time specified.^^ § 276. Same. General rule. Where the provisions of the contract as to the time of final payment are substantially in conformity with the provisions of the section of the me- ehanic's-lien law, and no lien-holder is injured by a variation " Kerr's Cyc. Code Civ. Proc, § 1184. See Hogan v. Globe Mut. B. & L. Assoc., 140 Gal. 610, 613, 74 Pac. Rep. 153: Southern Cal. L. Go. v. Jones, 133 Cal. 242, 244, 65 Pac. Rep. 378. " Stimson M. Go. v. Nolan (Gal. App., June 19, 1907), 91 Pac. Rep. 262. A contract which makes the whole price due and payable at and before the completion of the building is a substantial departure from the provision of S 1183 of the Code of Civil Procedure, making one fourth payable thirty-five days after the completion of the contract: Merced L. Co. v. Bruschi (Cal. Sup., Nov. 29, 1907), 93 Pac. Rep. 844. =<= De Camp L. Co. v. Tolhurst, 99 Gal. 631, 635, 34 Pac. Rep. 438. See Southern Cal. L. Co. v. Jones, 133 Gal. 242, 244, 65 Pac. Rep. 378. " Wilson v. Nugent, 125 Cal. 280, 57 Pac. Rep. 1008. ^ Dunlop V. Kennedy "(Cal.), 34 Pac. Rep. 92 (rehearing granted. On the subsequent liearing this point was'eliminated). I 213 STATUTORY ORIGINAL CONTRACTS. § 277 from the exact provisions of the statute, it seems that it is sufficient.-^ § 277. Same. Illustrations. Sufficient compliance. Thus where there is a provision in the contract that the balance of twenty-five per cent of the contract price shall be paid after the completion of the building, but may be paid at any time between the date of completion and the expiration of the thirty-five days in case the contractors show receipts and give special bonds that all bills will be paid and that no liens or other claims exist against the premises, such payment to be optional with the owner, it is sufficient.^'' Last payment thirty-six days after completion. And so where the contract provides that the last payment shall be made " within thirty-six days " after the completion of the contract, the owner does not incur the penalty of the statute ; for when a debtor is allowed a certain period within which to make payment, the debt is not due until the expiration of the period, the court saying, " I think a debt cannot be said to be due until the creditor can rightfully demand and insist upon payment. This is the usual and conventional meaning of the language as applied to deferred payments. Unless the money is put. out upon interest, and the creditor is making a profit by having it kept out, it will be presumed that he will accept payment whenever it is tendered. The extended credit in such a case is wholly for the benefit of the payor. The con- tractor, laborers, and material-men in a building contract are presumed to be willing to receive their pay at the earliest possible moment, and, aside from the statute, it would be law- ful and proper that the owner should pay at once. Regard- ing the contract without reference to the statute, therefore, one would say the postponement of payments is solely for the benefit of the owner. Although the code requires this particular contract to be made that lienors may be protected still it must be construed as the voluntary undertaking of =» San Diego L. Co. v. Wooldredge, 90 Cal. 574. 579, 27 Pac Rep 431- Yancy v. Morton. 94 Cal. 558, 561, 29 Pac. Rep. 1111; Stimson M Co v' Riley (Cal.), 42 Pac. Rep. 1072. '0 Yancy v. Morton, 94 Cal. 558, 561, 29 Pac. Rep. 1111. "The proviso found in this contract was undoubtedly for the benefit of tlie con- ' tractor." § 278 mechanics' liens. 214 the parties, and interpreted in the same way. . . . The words of the statute must be understood in their popular sense, and, so understood, the contract does not violate the statute." *^ Substitution of thirty days after the completion of the building, instead of thirty-five days required by the me- chanic's-lien law, also has been held sufficient, since claims of lien must be filed within thirty days, and attach before the payment could be legality made under the contract. ^- Less than twenty-five per cent reserved. Likewise where a smaller amount than that required by the statute, namely, fifteen dollars, less than the twenty-five per cent of the con- tract price, is, under the contract, to be paid thirty-five days after the completion of the work, it is a substantial compli- ance, especially Avhen more than twenty-five per cent was in fact retained, upon the principle, De minimis non curat lex, the deficiency being trifling in comparison with the whole amount of such payment, and no claimant being injured.^^ § 278. Same. What not substantial compliance. On the other hand, it is not a substantial compliance with the statute where the statutory original contract provides merely, " The last and final payment is to be made thirty-five days after completion of the work according to contract," without speci- fying the amount of that payment, although it is previously provided in the contract that " seventy-five per cent of the cost of material and work completed at the time of payment is to be paid on the first and third Saturdays of each month as the work progresses." The court said : " There is a mani- fest difference between setting forth the amount that is to be paid at any particular date, and stating that a certain per- centage of the cost will be so paid. Although the cost and the contract price of the work contracted for may be the " Apparently the case of a statutory origrinal contract : West Coast L. Co. V. Knapp, 122 Cal. 79, 54 Pac. Rep. 533, 534, citing Reed v. Nor- ton, 90 Cal. 590, 26 Pac. Rep. 767, 27 Id. 426, and Yancy v. Morton, 94 Cal. 558. 561, 29 Pac. Rep. 1111. 32 San Diego L. Co. v. Wooldredge, 90 Cal. 574, 579, 27 Pac. Rep. 431. See Stimson M. Co. v. Riley (Cal.), 42 Pac. Rep. 1072, 1074. 33 Stimson M. Co. v. Riley (Cal.), 42 Pac. Rep. 1072, 1074. In thia case it was intended to have twenty-five per cent reserved for thirty- five days, and the other provision was inserted by a mistake of figures. 215 , STATUTORY ORIGINAL CONTRACTS. § 279 same, yet there is no necessary connection between the two. It is easy to see that a contract might be entered into at such a figure for the entire work that a payment of seventy-five per cent of the cost of the material and work completed at stated times as the work progressed Avould exhaust the entire contract price at or before the completion of the building, so that there would be nothing with which to meet the liens that might be filed within thirty days thereafter." ^* A provision in a statutory original contract, that the final payment shall be made upon the production of receipts in full to the owner, is not a substantial compliance with the statute as to the time for making the final payment, nor even an attempt in that direction."^ § 279. Same. Provision as to liens. In a case where the contract provided that the final payment should be paid " thirty-five days after completion and date of acceptance, provided said building and premises were free and clear from any and all liens and encumbrances arising from or created or placed thereon by the said contractor, or any person claiming to have furnished him labor or materials for the erection and completion of said work," and before the thirty-five daj's expired the contractor filed a claim of lien, it was held that the clause quoted was not equivalent to an ex- press agreement that no lien should be filed by the con- tractor until after the expiration of the thirty-five days, the complaint being filed after the thirty-five days.^° »* WiUamette S. M. L. & Mfg-. Co. v. Los Angeles College Co., 94 Cal. 229, 235, 29 Pac. Rep. 629. The court viewed the word "cost" from the standpoint of the contractor, and not trom that of the owner. The contract price was the cost to the owner. From this point, and to avoid the penalty (see §§ 266, 269 et seq., ante), perhaps, the ruling would have been otherwise. Orej^un. The fact that a payment has been made before thirty days from the expiration of the completion of the building will not have ti.e effect to discharge any part of the lien, unless such payment was made to the person furnishing material or performing work : Watson V. Noonday M. Co., 37 Oreg. 287, 60 Pac. Rep. 994, 996. 3^ Stimson M. Co. v. Nolan (Cal. App„ June 19, 1907). 91 Pac. Rep. 262, quoting from Hampton v. Christensen, 148 Cal. 729, 735, 84 Pac. Rep. 200. '■"■ ^no.vIeN V. Baldtvin, 125 Cal. 224, 226, 57 Pac. Rep. 988. The court say: " The code (Code Civ. Proc, § 1184) provides that by the terms of the contract at least twenty-five per cent of the contract price shall § 280 mechanics' liens. , 216 § 280. Same. Payment in money. The requirement as to payment of the statutory original contract price in money, under section eleven hundred and eighty-four, was held to have no application to non-statutory original contracts,^^ or to contracts which were not original contracts, such as sub- contracts, and contracts between the owner and his laborer.^* It has already been shown ^^ that this clause of the section has been declared an unconstitutional invasion of the right of the owner in the possession of his property, and to contract respecting the use to which it may be subjected and the manner in which it may be enjoyed;*" and so a statutory original contract which provides for payment partly in ma- terials and partly in money is not only valid, but if the statute is otherwise complied with, all lien claimants have notice of its terms, and are bound thereby ; and the contract price, and not the value of the labor performed or materials furnished, is the measure of the owner's liability.*^ be made payable at least thirty-five days after tlie final completion of the contract. In this case there is no question but tliat the contract complied with the said section. Section 1187 provides that the con- tractor, at any time after the completion of his contract, and until the expiration of sixty days, may file his notice of lien. Reading the two sections together, it is plain that by the terms of the contract at least twenty-five per cent of the contract price must not become due until thirty-five daj-s after its completion, and that at any time after the completion and before the expiration of the sixty days the notice of lien may be filed. In fact, the giving of credit for a longer period would not affect the time within which the notice of lien must be filed. This is shown by § 1190, which provides that suit must be brought to enforce a lien within ninety days after filing the lien, unless by the terms of the contract credit was given, and in such case within ninety days after the expiration of the credit." As to «aiver of nieeliunio's lien by contract inconsistent witli lien, see 1 Am. & Eng. Ann. Cas. 954. ••" See §§ 214, 259, 264, ante. =* See fckym v. Weske Consol. Co. (Cal.), 47 Pac. Rep. 116; Pacific Mut. L. Ins. Co. V. Fisher, 109 Cal. 566, 569, 42 Pac. Rep. 154. See "Definition of 'Original Contract,'" § 211, ante. Material furnished by o^vner as partial payment on contract price, held valid payment : Dunlop v. Kennedy (Cal.), 34 Pac. Rep. 92 (re- hearing granted). ^' See §§ 31 et seq., ante, and §S 264 et seq., ante. *o Stimson M. Co. v. Braun, 136 Cal. 122, 125, 126, 68 Pac. Rep. 481, 89 Am. St. Rep. 116, 57 L. R. A. 726. Contra, Jones v. Great Southern F. H. Co., 86 Fed. Rep. 370, 30 C. C. A. 108, reversing s. c. 79 Fed. Rep. 477 (C. C). As to constitutionality of niechanic's-lien la^vs, see 4 Am. & Eng. Ann. Cas. 620-622. " Stimson M. Co. v. Braun, 136 Cal. 122, 125, 126, 68 Pac. Rep. -481, 89 Am. St. Rep. 116, 57 L. R. A. 726. See Hampton v. Christensen, 148 Cal. 729, 735, 84 Pac. Rep. 200. 217 STATUTORY ORIGINAL CONTRACTS. § 281 This provision, however, did not prohibit the owner from contracting to pay the original contractor in anything but money, the provision being, " as to all liens, except that of the original contractor, the contract price shall be payable in money." *^ § 281. Same. Contractor's bond. Provision unconstitu- tional. The provision of the statute '^ requiring the statu- tory original contract, when filed, to be accompanied by a bond of the contractor, as already shown,"** after having been declared constitutional, as against the objection that the act should embrace but one subject, to be expressed in the title, and that it was not a special law,*^ was afterwards held to be *" In this connection the court said : " Upon a breach of the agree- ment to pay one hundred and fifty dollars in land, tlie damages would be liquidated and certain, and precisely the same as they would be in case of the breach of an agreement to pay so much money. The ex- ception in favor of the contractor, in the provision of the code above quoted, indicates, if it does not imply, that he may contract and have a lien for the value of his work, payable otlierwise than in money: and this is in perfect accord with § 1183, which provides that he shall have a lien for the value of the labor done and materials furnished. In other states, under statutes not substantially different from our code in this respect, mechanics' liens for the contract price of labor and materials, payable in property, have been enforced, and I have found no case to the contrary (Phillips on Mechanics' Liens, § 129, and authorities cited) ": Baird v. Peall, 92 Cal. 235, 237, 28 Pac. Rep. 285. See Schmid v. Busch, 97 Cal. 184, 188, 31 Pac. Rep. 893. See " Non-Statutory Contract," §§ 259 et seq., ante. Colorado. It is only in case the owner fails to contract in con- formity with the statutory provisions that his liability extends to the value of the material, regardless of the contract price. If he desires to exchange property for his building or improvement, instead of making the cost payable in money, he is not prohibited from so doing. The contract, as between himself and his contractor, will be valid, but he enters into it with full knowledge tliat in such case the lien claims to which the property may be subjected will be measured by amount in value, and not by contract price : Cliicago L. Co. v. Newcomb, 19 Colo. App. 265, 74 Pac. Rep. 786, 789. These tloetrines lire oppiised to tlie well-considered California cases cited above. « Kerr's Cjc. Code Civ. Proe., § 1203. « § 39, ante. «» Carpenter v. Purrey, 128 Cal. 665, 668, 61 Pac. Rep. 369. Colorado. Where a contractor gives a bond to the people of the state, conditioned to discharge, pay, and satisfy all just claims and demands and all expenses incurred in the con.struction of a public structure and to pay all charges justly made against him in the con- struction thereof, the people may obtain a judgment for the sum due his subclaimants : People v. Dodge, 11 Colo. App. 177, 52 Pac. Rep. 637 (breach of two or more conditions of bond — misjoinder). § 282 mechanics' ijens. 218 unconstitutional, as against the owner/® as well as against the contractor/^ on the ground that it places an unreasonable restraint upon the owner of property in regard to the use thereof, and the power to make contracts, and as depriving him of his property without due process of law ; and the sec- tion has been declared not to be effective for any purpose.*^ § 282. Same. Effect of giving bond. Common-law obli- gation. A bond given by the contractor pursuant to section twelve hundred and three, which is thus unconstitutional, is without consideration, and void ; *^ and a failure to file the bond as required by the section does not make the original contract void, nor is it followed by any of the consequences denounced in the section.^" A bond expressly stating that it is given in compliance with section twelve hundred and three cannot be sustained as a voluntary common-law bond f^ and where the bond does not expressly recite that it is given pursuant to the section, and it yet otherwise appears that it was executed pursuant thereto, it is void, and cannot be en- <« Gibbs V. Tally, 133 Cal. 373, 65 Pac. Rep. 970, 60 L. R. A. 815. Some of the reasoning employed in this opinion is erroneous; for in- stance, the contractor is not personally liable to his subcontractor's material-men, nor to subcontractors in the second degree, and yet such subclaimants might assert a lien against the property of the owner. The owner is not, therefore, the only person against whom the penalty would be visited, as argued. See Stimson M. Co. v. Braiin, 136 Cal. 122, 126, 68 Pac. Rep. 481, 89 Am. St. Rep. 116, 57 L. R. A. 726. ■" Shaughnessy v. American S. Co., 138 Cal. 543, 546, 71 Pac. Rep. 701. « San Francisco L. Co. v. Bibb, 139 Cal. 192, 194, 72 Pac. Rep. 964; San Francisco L. Co. v. Bibb, 139 Cal. 325, 72 Pac. Rep. 864; Snell v. Bradbury, 139 Cal. 379, 380, 73 Pac. Rep. 150; W. W. Montague & Co. V. Furness, 145 Cal. 205, 78 Pac. Rep. 640. *" Shaughnessy v. American S. Co., 138 Cal. 543, 546, sub nom. Shaunessy v. American S. Co., 69 Pac. Rep. 250. ™ Snell V. Bradbury, 139 Cal. 379, 380, 73 Pac. Rep. 150. =' Shaughnessy v. American S. Co., 138 Cal. 543, 546, sub nom. Shaunessy v. American S. Co., 71 Pac. Rep. 701; San Francisco L. Co. V. Bibb, 139 Cal. 192, 72 Pac. Rep. 964; W. W. Montague & Co. v. Furness, 145 Cal. 205, 78 Pac. Rep. 640. Hatvaii. Seal not necessary: See Campbell v. Manu, 4 Hawn. 459; In re Congdon, 6 Hawn. 633. AVasliington. Where a bond contained all the conditions required by 1 Hill's Code, § 2415. a recital that it was taken, not as a statutory, but as a common-law bond, does not vitiate it, and subclaimants may avail themselves of the bond: Baum v. Whatcom Co., 19 Wash. 626, 54 Pac. Rep. 29; State v. Liebes, 19 Wash. 589, 54 Pac. Rep. 26, over- ruling, on this point. Sears v. W^illiams, 9 Wash. 428, 37 Pac. Rep. 665, 38 Pac. Rep. 135, 39 Id. 280. Action for failinji; to take bond under same section : See Rounds v. Whatcom Co., 22 Wash. 106, 60 Pac. Rep. 139. II 23 9 STATUTORY ORIGINAL CONTRACTS. §283 forced as a common-law obligation.^- When, however, no reference is made in the bond to section twelve hundred and three, and the bond itself fulfils all the requirements of the laAV as a common-law bond, it will be upheld as such ; ^^ and the owner may take such a common-law bond for his own protection.®* § 283. Same. Previous decisions concerning bond.'''^ The bond provided for in section twelve hundred and three was required to be filed at the same time with the statutory origi- nal contract ; otherwise no recovery could be had thereon ; and it was held the duty of the owner and the contractor to see that the bond was properly filed, and for a failure to do so, subclairaants had their remedy against the owner and contractor for damages. ^^ ^- San Francisco L. Co. v. Bibb, 139 Cal. 192, 72 Pac. Rep. 964; and see San Francisco L. Co. v. Bibb, 139 Cal. 325, 73 Pac. Rep. 864. But see Towle v. Sweeney, 2 Cal. App. 29, 83 Pac. Rep. 74. •"'3 Alcatraz M. H. Assoc, v. United States F. & G. Co., 3 Cal. App. 338, 341, 85 Pac. Rep. 156, 157. Washington. In a suit on the bond referring to the contract, con- tract and bond are to be read together : Peters v. Mackay, 20 Wash. 172, 54 Pac. Rep. 1122. =•• Hampton v. Christensen, 148 Cal. 729, 735, 84 Pac. Rep. 200. 5= Bond held insuflioient, under §1203, when given to " F. [the owner], his legal representatives or assigns," and not in terms invir- ing to the benefit of any one else : See Gibbs v. Tally (Cal.), 63 Pac. Rep. 168 (reversed, 133 Cal. 373, 69 Pac. Rep. 970). Complaint in action on bond: See Cai-penter v. Furrey, 128 Cal. 663, 669, 61 Pac. Rep. 369. IJmitation of action on bond : See Towle v. Sweeney, 2 Cal. App. 29, 83 Pac. Rep. 74. Action for damages for failure to file bond: See Gibl)S \. Tally, 133 Cal. 373, 69 Pac. Rep. 970, 63 Pac. Rep. 168, 60 L. R. A. 815 (meas- ure of damages; action for damages not affected by bringing action to foreclose lien). Tlie l>ond i.s collateral oblii^atioii. enforcesible by .•*iib<-l:iiiii:)iits .ile Civ. Proc, § 1184. See ■' Memorandum." §S 300 et seq., post. It thus appears that tlie memorandum should contain matters which may not be contained in the original contract. Mech. Liens — 15 §§ 290-292 mechanics' liens. 226 the construction of the statute, or as to whether the defend- ant complied with the contract, the owner should have the benefit of the doubt.^ § 290. Statutory original contract must be entered into before work is commenced. Under the provisions of the mechanic's-lien law, the statutory- original contract is re- quired to be entered into before the commencement of work on the building or other improvement ; and a statutory origi- nal contract entered into between the owner and the con- tractor after the commencement of the work is void as to all sublien-holders, whether before or after the commencement of the work.^° § 291. Same. Estoppel as to invalidity of contract. Where the original statutory contract is invalid by reason of the parties to such contract having failed to sign the plans and specifications under and in accordance with which the build- ing or other improvement is to be made, although such plans and specifications are referred to in and attached to the written contract, the material-man is not estopped from claiming that the contract is void by reason of the fact that he has contracted to furnish the lumber for such improve- ment, and has rendered one bill with express reference to the plans and specifications.^^ § 292. The statutory original contract must be in writing. The provision of the mechanic's-lien law requiring a writ- ing applies only to statutory original contracts.^- If the 9 Joost V. Sullivan, 111 Cal. 286, 296, 43 Pac. Rep. 896. See " Construction," §S 24-27, ante, and " Effect of Non-compliance," §§ 315 et seq., post. !» Stimson M. Co. v. Nolan (Cal. App., Aug. 17, 1907), 91 Pac. Rep. 262. " The court said, however: "They probably did not then know that the contract was void. They have not misled the defendants, nor in- duced them to change their position, and it does not appear that they have expressed knowledge of the invalidity while dealing with the contractor": West Coast L. Co. v. Knapp, 122 Cal. 79, 54 Pac. Rep. 533. " Kerr's Cyc. Code Civ, Proe., § 1183, and note; Madera F. & T. Co. V. Kendall, 120 Cal. 182, 52 Pac. Rep. 304, 65 Am. St. Rep. 117; Sid- linger v. Kerkow, 82 Cal. 42, 44, 22 Pac. Rep. 932. See Rebman v. San Gabriel Valley L. & \V."Co., 95 Cal. 390, 393, 30 Pac. Rep. 564; Kreuz- berger v. Wingfleld, 96 Cal. 251, 257, 31 I'ac. Rep. 109; Barber v. Rey- 227 REQUIREMENTS ESSENTIAL TO VALIDITY. § 292 writing signed b}' the parties does not of itself determine what constitutes the contract, then it is not wholly in writ- ing, as is required, and cannot, as a whole, be filed in the recorder's office. ^^ When the plans and specifications are referred to in the contract as having been signed by the parties to the con- tract, when in fact they were not so signed, the contract is inchoate. ^"^ Contract referring to adjoining house as pattern. A build- ing contract, otherwise valid, is not rendered void because of a reference therein to an adjoining house and certain work therein as patterns and samples for corresponding work pro- vided for in such contract, instead of setting forth in detail, in plans and specifications, the work to be done and then referring to such plans and specifications.^^ nolds, 44 Cal. 519. 533, s. c. 33 Cal. 497, 502 (under § 2 of the act of 1862, requiring building contracts for a price of over two hundrec' dollars to be in writing, etc., otherwise they were void). See " Alterations," §§ 326 et seq., post. Colorado. A contract by which the owner of a mining claim agrees to sell an interest tiierein, in consideration of the expenditure of a certain sum for its development, is not within § 1, p. 316, Laws 1893, and the contract need not be recorded: Maher v. Shull, 11 Colo. App. 322, 52 Pac. Rep. 1115. 13 "What occurred after the contract was signed, by «ay of putting It beyond doubt as to what plans and specifications were intended, such as by attaching them togetlier and filing them as one document, and building a house upon the lots indicated, according to the plans and specifications, can have no bearing upon the question whetlier the whole contract was rediiced to writing and signed by the parties. Tlie reference is to specifications signed by the parties. . . . Under general rules pertaining to contracts, one could make a builder's con- tract so referring to plans and specifications as to give very little in- formation as to what the contractor had agreed to do, unless the plans and specifications can be found. The material part of the con tract may really be in them. Independently of the statute, one miglit agree to build in San Diego a house which should in all respects be a duplicate of a designated house in London. Such a contract would not help persons who proposed to furnisli material, or perforni labor upon tlic house. Not much more satisfaction would be afforded by placing on file plans and specifications which, when found, do not accord with the reference made in tlie written contract. And certainly it cannot be contended that in such case the plans and specifications have been so referred to as to become part and parcel of the contract signed by the parties" : West Coast L. Co. v. Knapp, 122 Cal. 79, 83, 54 Pac. Rep. 533, 534. See Donnelly v. Adams, 127 Cal. 24, 25, 59 Pac. Rep. 208. See §208, ante, and §§309, 310. post. " Donnelly v. Adams, 115 Cal. 129, 46 Pac. Rep. 916. 127 Cal. 24, 59 Pac. Rep. 208. '■' California I. Const. Co. v. Bradbury, 13S Cal. 328, 71 Pac. Rep. 346, 617. § 293 mechanics' liexs. 228 § 293. The statutory original contract must be subscribed. The mechanic's-lien law ^'' reciuires that the statutory origi- nal contract " shall be subscribed by the parties thereto." ^^ The contract is not void, where it recited the construction of a building conformable to certain drawings and specifica- tions " signed hj the parties and hereunto annexed," and the contract consisted of three items or parts fastened together in the following order: 1. The formal contract, signed on the last page thereof by the parties; 2. The specifications, signed only by the owner; and 3. The drawings or plans, the last or bottom sheet of which was signed by the con- tractor and owner.^^ « Kerr's Cyc. Code Civ. Proc, § 1183, and note. " Joost V. Sullivan, 111 Cal. 286, 294, 43 Pac. Rep. 896. It vras held by the commissioners, in Dunlop v. Kennedy (Cal.), 34 Pac. Rep. 92, that the statute does not require that the contract shall be sig-ned by the owner, and that it is sufficient if it is signed by the "reputed owner": fee §§28 et seq., §287, and note, ante; but this case was subsequently heard in bank, and the decision of the commis- sioners reversed, this question being eliminated from the inquiry: Dunlop V. Kennedy, 102 Cal. 443, 36 Pac. Rep. 765. See Donnelly v, Adams, 127 Cal. 24, 25, 59 Pac. Rep. 208. Compare Kerr'-s Cyc. Civ. Code, §§ 1276, 1624. and notes. A.S to signing plans and specifications referred to in the contract, under § 1183 1^, Code Civ. Proc. (repealed. Stats. 1903, p. 21), see Sulli- van V. California R. Co., 142 Cal. 201, 203, 204, 75 Pac. Rep. 767. ^* Signingr. DraTiingrs and specifications. In Howe V. Schmidt, 151 Cal. 436, 438, 90 Pac. Rep. 1056, the court said: "The contention is that the reference in the contract being to drawings and specifica- tions ' signed by the parties,' as well as annexed, the failure of one of the parties to place his signature somewhere upon the speci- fications made it impossible to identify the specifications intended, except by the aid of oral evidence, and rendered the contract void. We see no good reason, however, for holding that this reference to the ' drawings and specifications, . . . signed by the parties and here- unto annexed,' is not fully satisfied by pages of specifications and sheets of drawings fastened together and annexed to the contract, and signed on the last page thereof by the parties. So fastened together and annexed to the contract, the drawings and specifications in fact constituted one document, fully identified as to the signatures of the parties in the manner required by the contract by the signatures on the last page. This being the situation, it is unnecessary to deter- mine what would have been the effect had the drawings and specifi- cations been simply 'annexed,' without any compliance with the re- quirement as to signing, and the cases cited by appellants in support of their claim are inapplicable. Worden v. Hammond, 37 Cal. 61, was a case where the agreement was to build according "to the draft, plan, and explanation hereto annexed, marked " A," ' and no draft, plan, or explanation was attached, and. it was sought to show by parol that an original paper produced by plaintiff was the one referred to. It was held that, where the reference is false, it cannot be helped out by oral evidence; the court saying that if the written 229 REQUIREMENTS ESSENTIAL TO VALIDITY. § 294 The actual time of signing is immaterial, where limited to work done after the signing; but the dates attached to the signatures of claimants, whether they are the true dates when the signatures were written or not, are, in the absence of satisfactory evidence to the contrary, conclusive evidence that the labor performed after that date was done under its terms and conditions. ^^ § 294. Filing contract.^" Before the work is commenced, either the statutory original contract,-^ or a sufficient mem- contract had contained a reference to the specifications in such a manner that their connection would be apparent upon their produc- tion, it would be regarded as a sufficient compliance with the statute. San Francisco L. Co. v. O'Neil, 120 Cal. 455, 52 Pac. Rep. 728, was a case wliere the contract was held void, simply because the entire con- tract was not filed as required by law; a sun-print copy of the plans and drawings having been filed instead of the original. West Coast L. Co. V. Knapp, 122 Cal. 79, 54 Pac. Rep. 533, was a case where the drawings and specifications were referred to simply as ' identified by the signatures of the parties,' and no plans and specifications corre- sponding to this reference were produced. In Donnelly v. Adams, 115 Cal. 129, 46 Pac. Rep. 916, the only reference was to 'plans, drawings, and specifications, . . . made by C. El. Henriksen, . . . and which are signed by the parties hereto, and are to be kept and remain in the office of said architect,' and there were no signed plans and specifica- tions. In TVillamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 229, 29 Pac. Rep. 629, the contract provided that the work should be done 'conformable to the drawings and specifications made by R. B. Young, architect, and signed by the parties, and hereto annexed,' and no plans and specifications were in fact annexed. None of these cases lend support to the contention that the plans and specifications an- nexed to the contract in this case did not fully correspond with the reference." '■' Skym V. Weske Consol. Co. (Cal.), 47 Pac. Rep. 116. -'" Failure to file contract to build exten.sion of railroad. Avoiding same: Bringham v. Knox, 127 Cal. 40, 59 Pac. Rep. 198. =■ Kerr's Cyc. Code Civ. Proc, § 1183, and note. See Giant Powder Co. V. San Diego F. Co., 78 Cal. 193. 196, 20 Pac. Rep. 419, s. c. 97 Cal. 263, 266, 32 Pac. Rep. 172; Willamette S. M. L. & M. Co. v. Kremer, 94 Cal. 205, 207, 29 Pac. Rep. 633; Joost v. Sullivan, 111 Cal. 286, 293^ 43 Pac. Rep. 896; Coss v. MacDonough, 111 Cal. 662, 667, 44 Pac! Rep. 325; Booth v. Pendola, 88 Cal. 36, 41, 25 Pac. Rep. 1101, 24 Pac. Rep. 714; Morris v. Wilson, 97 Cal. 644, 645, 32 Pac. Rep. 801; Marchant v. Hayes, 120 Cal. 137, 138, 49 Pac. Rep. 840; San Francisco L. Co. v. O'Neil, 120 Cal. 455, 456, 52 Pac. Rep. 728; West Coast L. Co. v. Knapp, 122 Cal. 79, 54 Pac. Rep. 533, 534; Laidlaw v. Marye, 133 Cal. 170, 173, 65 Pac. Rep. 391; Bringham v. Knox, 127 Cal. 40, 59 Pac. Rep. 198. But see Dunlop v. Kennedy (Cal.), 34 Pac. Rep. 92 (rehear- ing granted, and decision reversed). See Kiessig v. Allspaugh, 91 Cal. 234, 236, 27 Pac. Rep. 662. 13 L. R. A. 418; White v. Fresno Nat. Bank, 98 Cal. 166, 168, 32 Pac. Rep. 979; Gnekow v. Confer (Cal.), 48 Pac. Rep. 331; MclNIenomy v. White, 115 Cal. 339, 342, 47 Pac. Rep. 109; Macomber v. Bigelow, 123 §§ 295, 296 mechanics' liens. 230 orandum thereof,^- must be filed with the county recorder; otherwise the contract is void.^^ The contract need not be recorded, under the California statute, as there is uo provision therein for recording the same. Nearly every opinion of the California courts relating to the subject states that the contract must be " recorded," otherwise it is void. This looseness of expression is entirely unwarranted, as the statute -* expressly provides that the contract or memorandum shall be merely " filed " with the recorder.^^ § 295. The duty of filing the contract rests upon all the parties thereto,-'^ and it is as important for the owner as for the contractor to see that it is filed, since, on failure to file, the obligations of the former to subclaimants are not limited to the contract price, and as to the latter, his lien is lost.-^ But the duty to file the contract is primarily on the con- tractor, for the reason that he can always defeat the law and the owner's interest by commencing work before such filing, the owner being helpless in the matter.^* § 296. Necessity and object of filing contract. While the filing of the contract is for notice, yet it is not for that pur- pose merelj^; it is one of the essentials to a valid original Cal. 532, 56 Pac. Rep. 449; CaUfornia I. Const. Co. v. Bradbury, 138 Cal. 328, 71 Pac. Rep. 346, 617; Camp v. Behlow, 2 Cal. App. 699, 700, 84 Pac. Rep. 251; Stimson M. Co. v. Los Angeles T. Co., 141 Cal. 30, 32, V4 Pac. Rep. 357; Jones v. Kruse, 138 Cal. 613, 614, 72 Pac. Rep. 146 (prior to amendment of § 1187, March 27, 1897). 2» Kerr's Cyc. Code Civ. Proc, § 1183, and note; Willamette S. M. L. & M. Co. V. Los Angeles College Co., 94 Cal. 229, 233, 29 Pac. Rep. 629; Joost V. Sullivan, 111 Cal. 286, 293, 43 Pac. Rep. 896. See "Memorandum," §§300-311, post. 23 See "Effect of Non-compliance,' §§315 et seq., post. Colorado. In this state, those performing labor or furnisliing materials before the contract is filed will have a lien, independently of the contract: Laws 1899, § 1, pp. 261, 262; 3 Mills's Ann. Stats., 2d ed., § 2867. " Kerr's Cyc. Code Civ. Proc., § 1183. » Colorado. But, as to this state, see Laws 1899, § 1, pp. 261, 262; 3 Mills's Ann. Stats., 2d ed., § 2867. =« Giant P. Co. v. San Diego F. Co., 78 Cal. 193, 197, 20 Pac. Rep. 419; Laidlaw v. Marye,.133 Cal. 170, 175, 65 Pac. Rep. 391. =' Willamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 229, 233, 29 Pac. Rep. 629. See §§81, 127, 130. ante: Laidlaw v. Marye, 133 Cal. 170. 175, 65 Pac. Rep. 391, Los Angeles P. B. Co. v. Higgins (Cal. App., Aug. 8, 1908), 7 Cal. App. Dec. 164. 2» Laidlaw v. Marye, 133 Cal. 170, 175, 65 Pac. Rep. 391. 11 231 REQUIREMENTS ESSENTIAL TO VALIDITY. § 296 statutory contract. By the express provision of the statute, a failure to file the contract renders the statutory original contract void.-" The object of the statute in requiring contracts of an agreed price in excess of one thousand dollars to be filed seems to be twofold : 1. As a security to the owner, who is thereby shielded from liability to subcontractors, con- tractors, laborers, and material-men, beyond his contract price; 2. To afford information to all others furnishing materials or performing services in and about the contem- plated improvement upon which to predicate an opinion, founded upon the value of the property, the price to be paid, and the dates of payment, as to whether or not the con- tract price is such as will probably be adequate security, together with the lien therefor given to them by the statute, sufficient to warrant them in bestowing their labor or fur- nishing materials for the proposed improvement. Mani- festly, if the improvement, when completed, taken with the property upon which it is situated, is of a' character having no extrinsic or market value, as, for instance, a mill for crush- ing quartz-rock, where there is not, and cannot be, any quartz-rock to crush, or if the property be valueless, and the price agreed to be paid be far below the value of the work to be done, it is of the utmost importance that these facts shall be known to those about to become interested. ^° A further object of filing the contract, it may be added, is to give a test of the completion of the contract or build- ^ Kellogg- V. Howes, 81 Cal. 170, 179, 22 Pac. Rep. 509, 6 L. R. A. 588, 11 Pac. Coast L. J. 589; Butterworth v. Levy, 104 Cal. 506, 510, 38 Pac. Rep. 897. Contractual re;ation.<« of parties not affected: contractor may sue upon the contract, but cannot claim lien: Los Angeles P. B. Co. v. Higgins (Cal. App., Aug. 8, 1908), 7 Cal. App. Dec. 164. ™ Substantially in the laugruage of Greig v. Riordan, 99 Cal. 316. 319, 33 Pac. Rep. 913. See San Francisco L. Co. v. O'Neil, 120 Cal. 455, 457, 52 Pac. Rep. 728. in which the court say: "While the mechanic's-lien law certainly interferes to a great extent with the right of the property-owner to contract according to his own best judgment for the erection of improvements thereon, still it is apparent that the property-owner might take advantage of mechan- ics and laborers by making a contract with a contractor financially irresponsible for the construction of a house actually worth twice the amount of the named contract price." Colorado. See Chicago L. Co. v. Newcomb, 19 Colo. App. 265, 74 Pac. Rep. 786, 790. §§ 297-299 mechanics' liens. 232 ing, so that claimants may know when to file their claims of lien.^^ § 297. Whole contract must be filed. Where the statu- tory original contract is filed, the whole of it must be filed.^- It is a compliance with the statute if the contract filed be sufficient, under the ordinary rules of law, to constitute a written contract. ^^ § 298. Same. Reference to matters dehors the contract do not necessarily make the contract void, provided it is not a reference to another writing.'* Thus a reference to pat- terns, in an adjoining house, for samples of the work to be performed, has been held to be a peculiarly satisfactory mode of specification.^^ § 299. Same. Where the plans and specifications are referred to, and form a part of the building contract, they ==1 Barker v. Doherty, 97 Cal. 10, 12, 31 Pac. Rep. 1117. See "Time of Completion," *;§ 334 et seq., post, and "Filing Claim," |§ 416 et seq., post. ^- Willamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 229, 234, 29 Pac. Rep. 629; Donnelly v. Adams, 127 Cal. 24, 25, 59 Pac. Rep. 208. See California I. Const. Co. v. Bradbury, 138 Cal. 328, 71 Pac. Rep. 346, 617. ^ California I. Const. Co. v. Bradbury, 138 Cal. 328, 331, 71 Pac. Rep. 346, 617. Executed transiiaotion, antecedent to the contract as executed, and forming no part of it, although referred to in the specifications: See California I. Const. Co. v. Bradbury, 138 Cal. 328, 330, 71 Pac. Rep. 617. "■> California I. Const. Co. v. Bradbury, 138 Cal. 328, 331, 71 Pac. Rep. 346, 617. See § 292, ante. ^ In California I. Construction Co, v. Bradbury, 138 Cal. 328, 331, 71 Pac. Rep. 346, 617, the court say: "Nor do we think the objection tenable that the old house thereby became part of the contract, and hence that the whole contract was not filed in the recorder's office. All written contracts refer to matters dehors the instrument, but such matters (except where, as in West Coast L. Co. v. Knapp. 122 Cal. 79, 54 Pac. Rep. 533, the matter referred to is another writing) do not become a part of the instrument. Thus monuments and natural objects called for In a deed cannot with any propriety be said to be part of the deed; nor where goods are" sold or contracted to be sold by sample can the sample be said to be part of the contract, though conformity to sample doubtless is. Nor is the case different here, where work is contracted to be done according to a specified pattern or sample." 233 REQUIREMENTS ESSENTIAL TO VALIDITY. § 299 must be filed in the office of the recorder as a part of the contract.''' The rule is the same, where the plans and specifica- tions are referred to as being in the office of the architect ; ^^ and likewise where the contract simph' refers to the plans and specifications.^^ The fact that the contract does not state, in terms, that the plans, drawings, and specifications were annexed to it and made a part of it is no excuse for lack of filing, where they constitute an essential part of it.^® When contract refers to plans and specifications as signed by the parties, and they are not so signed, the statement is a misreference or misdescription that cannot be cured by any oral waiver or oral agreement. The plans and specifi- cations in such a case are a most important part of the contract, for, without them, the nature and extent of the work and materials to be furnished cannot be ascertained, and they should, under such circumstances, be made a part 38 Holland v. Wilson, 76 Cal. 434, 436, 18 Pac. Rep. 412; Willamette S. M. L. & M. Co. V. Los Angeles College Co., 94 Cal. 229, 233, 29 Pac. Rep. 629; Yancy v. Morton, 94 Cal. 558, 562, 29 Pac. Rep. 1111; Barker v. Doherty, 97 Cal. 10, 31 Pac. Rep. 1117; Sunimerton v. Hansen, 117 Cal. 252, 253, 49 Pac. Rep. 135; Kuhlman v. Burns, 117 Cal. 469, 49 Pac, Rep, 585, See " Memorandum," §§ 300 et seq,, post. " Greig v. Riordan, 99 Cal. 316, 320, 33 Pac. Rep, 913; Pierce v. Birkholm, 115 Cal. 667, 660. 47 Pac. Rep. 681. See Donnelly v. Adams, 115 Cal. 129, 130, 46 Pac. Rep. 916. See §§ 192, 292, ante, and § 307, post. See also White v. Fresno Nat. Bank, 98 Cal. 166, 168, 32 Pac. Rep. 979, where it was held that it was too late to raise the question for the first time on appeal, no demurrer having been interposed, the answer admitting the contract set out in the complaint, and the contract itself being introduced in evidence without objection, 3s McMenomy v. White, 115 Cal, 339, 341, 47 Pac, Rep. 109. See authorities in foot-note 37, ante. Filing; copy of contract. In San Francisco L. Co. v. O'Neil, 120 Cal. 455, 456, 52 Pac. Rep, 728, it was held that § 1183 of the Code of Civil Procedure makes no provision for the filing of a copy of the contract, or of any part thereof, and the court say: "It is the established law that where the plans and specifications are part of the contract, they must be filed," The contract in this case stated that the contractor agreed to construct a certain building " in conformity with the plans, drawings, and specifications for the same made by D,, the authorized architect, . . . which are signed by the parties hereto, and are to be kept and remain in the office of said architect, ... in addition to which a duplicate copy of said plans and specifications is to be filed in the county recorder's office." The question whether the contract filed would have been sufficient as a memorandum was not decided. See "Memorandum," §309, post, ""Pierce v. Eirkholm, 115 Cal. 657, 661, 47 Pac. Rep, 681, See Kuhlman v. Burns, 117 Cal. 469, 472, 49 Pac. Rep. 585. §§300,301 mechanics' LIENS. 234 of the written contract, which is signed by the parties in such a way that no resort to oral evidence is necessary to show that it was the intention of the parties that they should be a part of such contract ; otherwise the contract is void.'*'^ In order that there may be a sufficient filing of the con- tract, it seems that no part of it can be a copy ; for instance, a copy of the plans and specifications. If the contract is filed, it must be the whole original contract.*^ § 300. Memorandum of contract. Statutory provision. The mechanic's-lien law *- provides : " And the said contract, or a memorandum thereof, setting forth the [1] names of all the parties to the contract, [2] a description of the prop- erty to be affected thereby, [3] together with a statement of the general character of the work to be done, [4] the total amount to be paid thereunder, and [5] the amounts of all partial payments, [6] together with the times when such pajnnents shall be due and paj^able, shall, [7] before the work is commenced, be [8] filed in the office of the county recorder of the county, or city and county, where the prop- erty is situated, who shall receive one dollar for such filing." " § 301. Same. General effect of provision. In 1887, the legislature amended this section, as it is set forth in the preceding section, by providing that instead of filing the contract in the recorder's office, as had been previously required, a memorandum thereof might be filed. After this amendment was made, the owner or contractor could satisfy « DonneUy v. Adams, 127 Cal. 24, 25, 59 Pac. Rep. 208. « San Francisco L. Co. v. O'Neil, 120 Cal. 455, 456, 52 Pac. Rep. 728. In that case the question of whether a copy of the contract might be treated as a memorandum was not involved, and was not decided. See Blinn L. Co. v. Walker, 129 Cal. 62, 65, 61 Pac. Rep. 664. See foot-note .38. ante, this chapter. « Kerr's Cyc. Code Civ. Proc., § 1183. " Before aineinlnient of 1SS7 to this section, the statute impera- tively demanded that the contract should be filed.* Joost v. Sullivan, 111 Cal. 286, 294, 43 Pac. Rep. 896. Orepron. Under act or 1874. w!iere there wa.s no written con- tract, the right to a lie-n attached only in case the person erecting the building refused to furnish u niemora!>dum in writing- of the terms of the contract: Tatum v. Cherry, 12 Oreg. 135, 6 Pac. Rep. 715. 235 REQUIREMENTS ESSENTIAL TO VALIDITY. §§ 302-304 the statute by filing eitlier tiie contract or such memoran- dum; but if he filed the contract, he must still file the whole of it, including the drawings and specifications, if they were made a part thereof; while if he preferred to file the memo- randum, such memorandum must contain the matters which are prescribed in the statute as the equivalent of the cou- tract.-** § 302. Same, Purpose and object. It is apparent that the design of the amendment was to require less than was required before. How much less, must be determined from the language used, construed in the light of the purpose to be effected by the filing of anything giving information of the contract and the original contractor.*^ The objects of filing the memorandum seem to be the same as those of filing the contract.*** § 303. Same. What not required in memorandum. AVhat the statute does not expressly require to be stated in the memorandum need not be stated therein. Thus the statute does not require the memorandum to be signed ; '*'^ nor was it necessary that the signatures to the plans and drawings should be copied into the memorandum, to make it sufficient, the drawings and specifications being signed by the parties, as appeared by the recital in the copy of the articles of agreement, which constituted a part of the memorandum filed.*^ § 304. Same. Contract, or copy thereof, as memorandum. General principles. The claim is frequently made that an insufficient filing of a contract is a sufficient filing of a memorandum thereof. It is evident that a memorandum sufficient under the statute could not cure a contract void *■' Willamette S. M. L. & M. Co. v. Los Angeles CoUege Co., 94 Cal. 229, 235, 29 Pac. Rep. 629. « Joost V. Sullivan, 111 Cal. 286, 295, 43 Pac. Rep. 896. « See § 296, ante. " Blinn L. Co. v. Walker, 129 Cal. 62, 65, 61 Pac. Rep. 664; Joost v. Sullivan. Ill Cal. 286, 294, 43 Pac. Rep. 896. See § 305, post. " Blinn L. Co. v. Walker, 129 Cal. 62, 66, 61 Pac. Rep. 664. § 305 mechanics' liens. 236 for non-compliance therewith.*^ It is equally clear that if the original contract itself is filed, and it is insufficient as such contract under the statute, it would avail nothing as a memorandum, even though it expressed every requirement of the statute as a memorandum ; for the statute does not demand that the contract and memorandum thereof shall set forth the same facts or be made in the same form. If, however, a copy of the original contract, or what purports to be a copy thereof, is filed, and the same is sufficient as a memorandum, containing the matters and in the form set forth in the statute, and there exists, independently thereof, an original contract, of which the instrument filed purports to be a copy, whether it is a copy or not, the statute is satis- fied in this regard. Where there was nothing in the memo- randum, except the style of the writing, to indicate that it was a copy of anything, its language, though reading like a contract, must be deemed that of a memorandum or state- ment of the substance of the contract.^" § 305. Same. Names of all the parties to the contract. It is not necessary that the memorandum shall be signed or sub- scribed by the parties. The statute only requires that the memorandum shall " set forth the names of all the parties to the contract." ^^ ■" In this connection, Mr. Justice Harrison, speaking for tlie court, said: " W^li ether the document which was filed in the recorder's office is to be regarded as the original contract, or as a memorandum thereof, is immaterial. A memorandum of the contract can have no higher force than the contract itself, and if the contract fails to comply with the requirements of the statute, the memorandum itself must be equally insufficient": Willamette S. M. L. & M. Co. v. Los Angeles College Co., .94 Cal. 229, 235, 29 Pac. Rep. 629. It is sub- mitted that this language is not quite accurate, and that the text inore correctly states the law. See Greig v. Riordan, 99 Cal. 316. 320, 33 Pac. Rep. 913; San Francisco L. Co. v. O'Neil, 120 Cal. 455, 457, 52 Pac. Rep. 723; Blinn L. Co. v. Walker, 129 Cal. 62, 66, 61 Pac. Rep. 664. »» Blinn L. Co. v. W^alker, 129 Cal. 62, 66, 61 Pac. Rep. 664 (con- curring opinion). "We can hardly conceive of a more complete memorandum of a contract than is to be found in a verbatim copy of it": Blinn L. Co. v. Walker, 129 Cal. 62. 65, 61 Pac. Rep. 664. This dictum is not in consonance with the authorities, nor in accord with the requirements as to the memorandum, which, under § 1183. as already shown (§§ 287, 288, ante), is required to contain matters not required by the statute to be placed in the contract. »' .Joost V. Sullivan, "111 Cal. 286, 294, 43 Pac. Rep. 896; Blinn L. Co. V. Walker, 129 Cal. 62, 65, 61 Pac. Rep. 664. See § 303, ante. 237 REQUIREMENTS ESSENTIAL TO VALIDITY. §§ 306, 307 § 306. Same. Description of the property to be affected thereby. The statutory provision ^- requires the memoran- dum to contain a " description of the property to be affected thereby." Section eleven hundred and eighty-seven ^^ requires the claim of lien to contain a " description of the property to be charged, sufficient for identification." The previous dis- cussion of the latter section may have some bearing upon the former.^* At any rate, where the description contained in the memorandum was such that, by the instrument itself, and without the aid of oral evidence, the building, and property on Avhich it was situated, and necessary for the convenient use of sucii building, could have been identified on the ground, it was held sufficient. °^ § 307. Same. Statement of the general character of the work to be done. The statute ^*^ requires that the memoran- dum filed shall set forth the names, etc., " together with a statement of the general character of the work to be done." ^' If the statute had omitted the words last above quoted, and had simply said that the contract, or a memo- randum of it, should be filed, it would have been under- stood that the word " memorandum," ex vi termini, implied " Kerr's Cyc. Code Civ. Proc, § 1183. =3 Kerr's Cye. Code Civ. Proc, § 1187. ^* See " Claim of Lien," §§ 399 et seq., post. ^^ The drawings and plans, wliich ^vere part o£ the contract, repre- sented tlie liouse as facing tlie longer way on A. Street, with a veranda the entire length of the A. Street front; one end of the house was shown to front on H. Street, and in the drawings of the H. Street front, standing in H. Street, facing tlie house, the veranda appeared to the left of the drawing, which established the house on the north side of A. Street, and the northwest corner of H. and A. streets; the drawings also showing where the house was located witli reference to the streets, property lines, etc.: Blinn L. Co. v. Walker, 129 Cal. 62. 64, 65, 61 Pac. Rep. 664. Where the memorandum filed erroneously described the adjoinin; lot, upon which certain improvements were also to be made, as run- ning "easterly," but adjoining a lot described upon which a build- ing was to be erected, and which was described in the contract as running " westerly," the error does not destroy the sufficiency of the memorandum, nor avoid the contract, being capable of correction by proper averment and proof: Dunlop v. Kennedy (Cal., Aug. 31, 1893), 34 Pac. Rep. 92, 96 (rehearing granted, and decision of commissioners reveFsed), citing Yancy v. Morton. 94 Cal. 558, 29 Pac. Rep. 1111. « Kerr's Cyc. Code Civ. Proc, § 1184. *' See, generally) §§ 286 et seq., antr?. § 308 mechanics' liens. 238 that it need not contain a full and particular statement of the contract.^* § 308. Same. Statement of work. General principles. It seems that if the description of the general character of the work is substantially complete, and is not fraudulently made, and the claimants are not misled or deceived because of any imperfection in it, and the owner acts in good faith, it is sufficient.^^ The memorandum filed should show the dimensions and character of the work ; '■'° and the general material of which the building is to be constructed, whether of wood, brick, or stone, and the like ; "^ and the size and shape of the house.'^- The statement must not be too general, however; for instance, simply that " the building is to be a frame build- ing." ®^ To say that the building is to be a stone building, or a brick building, or a frame building, entirely fails, in 5s Joost V. Sullivan, 111 Cal. 286, 294, 43 Pac. Rep. 896. in which it was said: "Webster defines it thus: '(Law.) A brief note in writ- ing of some transaction, or an outline of some intended Instrument: an instrument drawn up in brief and compendious form.' . . . The words ■ general character ' do not mean a special, particular, minute, or detailed description of the work to be done. The adjective 'gen- eral,' as defined in Webster's Dictionary, means: ' 1. Relating to a genus or kind: pertaining to a whole class or order; belonging to a whole rather than to a part; ... 3. Not restrained or limited to a precise or detailed import; not specific; lax in signification'; and of the noun 'character' he gives, as applicable here, '9. Account; description.' The definition given of the word ' general,' in Black's Law Dictionary, so far as pertinent, is: 'Universal, not particular- ized; as opposed to special.' The same author defines the word 'character' only as applied to individuals, but it is nevertheless per- tinent here: 'The aggregate of the moral qualities which belong to and distinguish an individual person; the general result of one's distinguishing attributes.' " «• Joost V. Sullivan, 111 Cal. 286, 296, 43 Pac. Rep. 896. «» Greig v. Riordan, 99 Cal. 316, 320, 33 Pac. Rep. 913. " Willamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 229, 236, 29 Pac. Rep. 629: Greig v. Riordan. 99 Cal. 316. 320. 33 Pac. Rep. 913: Pierce v. Birkholm, 115 Cal. 657, 661. 47 Pac. Rep. 681; Butterworth v. Levy, 104 Cal. 506, 508, 38 Pac. Rep. 897. See Joost V. Sullivan, 111 Cal. 286. 295, 43 Pac. Rep. 896. 62 Pierce v. Birkholm, 115 Cal. 657, 661, 47 Pac. Rep. 681. See But- terworth V. Levy. 104 Cal. 506. 508. 38 Pac. Rep. 897. As to purpose for vi-hicb building: is intended, see Joost v. Sullivan, 111 Cal. 286, 295, 43 Pac. Rep. 896. <» Blythe v. Torre (Cal., Dec. 14, 1894), 38 Pac. 639. A rehear- ing was granted in this case, but it was dismissed by stipulation before final determination. 239 REQUIREMENTS ESSENTIAL TO VALIDITY. § 309 essentials, to give that notice to the public which the law contemplates. By consulting the memorandum, it would be impossible to say whether the building is to be a dimin- utive cottage or a large public caravansary, or whether the contract price is at all in proportion to the character of the building to be erected."* § 309. Same. Reference to plans and specifications. Where the memorandum is filed as such,''^ or where the contract is attempted to be filed, and, owing to its insufficiency as the proper filing of a contract, it is claimed to be sufficient as the filing of a memorandum,"" and such memorandum of contract so filed contains a reference to the plans and specifications, and where they form an essential part of the contract, and where, without them, the contract would be indefinite and uncertain, such filing does not comjjly with the terms of sec- tion eleven hundred and eighty-three."^ ** Blythe v. Torre, supra. Where the niemoranduni gave the siase of the lot, and It was suf- ficient in other respects, and set forth, "that a contract has been entered into for raising, making- alterations, additions, and repairs to the two-story frame-house building' to be used for tenements, situate, etc. [describing the lot]; . . . that tlie following is a statement of the general character of the work to be done under said contract, to wit, raising, making alterations, additions, and repairs to a two- story frame building to be used for two tenements, situated as above stated, and prosecuted under the direction of M. J. Welch, architect," — it is sufficient in this respect: Joost v. Sullivan, 111 Cal. 286, 295, 43 Pac. Rep. 896. "'^ Dunlop V. Kennedy, 102 Cal. 443, 445, 36 Pac. Rep. 765; Butter- Worth V. Levy, 104 Cal. 506, 508, 38 Pac. Rep. 897. «« See §§ 294 et seq., ante. " Greig v. Riordan, 99 Cal. 316, 320, 33 Pac. Rep. 913. See "Preliminary Statement," §208, ante. Contract providiu!; that building is to be erected " in confonnitj with the plans, dra>viuf;;M, and .specitications for the same, made l)y Huerne and Everett, the architects employed by tlie owner, and which are signed by the parties hereto, and are to be kept and remain in the office of said architects, subject to the inspection of the j^arties hereto, and others concerned in said erection," and containing the further provision, that " the specifications and drawings are in- tended to co-operate, so that any work exhibited in drawings, and not mentioned in specifications, or vice versa, is to be done as though mentioned in both." is insuffic-ient; and the same cannot be treated, if filed, as containing a sufficient statement of the general character of the work to stand as a memorandum: Greig v. Riordan, 99 Cal. 316, 320, 33 Pac. Rep. 913. Where, in addition to such statements, the contract filed provides that the contractor is to erect "a two-story dwelling-house and shed," the contract filed is insufficient as a memorandum: Pierce v. Birkliolm, 115 Cal. 657, 661, 47 Pac. Rep. 681. § 309 mechanics' liens. 240 Where memorandum does not disclose that there were any plans or specifications, and it otherwise states the gen- eral character of the work, it is sufficient.^^ The expression in a memorandum, " drawings hereto an- nexed," is to be construed as referring, not to the original contract, of which it is a memorandum, but to the memoran- dum itself; and where the drawings and specifications are referred to as signed by the parties, the memorandum will be construed to assert them to be parts of itself, and as stating nothing concerning the mode in which they were identified in the making of the written contract ; and if a defect, it is one in the memorandum only, and the maxim. Falsa demonstratio non nocet, applies.®® When, in addition to such statements, the attempted contract pro- vides that " the drawings and specifications are liereto annexed," Instead of stating, as in the foregoing illustrations, that they " are in the office of the architect," and it also provides that the " building is to be three stories high," but does not set forth the materials of which the building is to be constructed, or any item from which its " general character " can be ascertained, the contract filed is insuffi- cient as a memorandum: Willamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 229, 236, 29 Pac. Rep. 629. Where the memorandum states the general character of the work as a " one-story brick building, and all work mentioned in the speci- fications in connection therewith, in a workmanlike manner, and in conformity with the plans, drawings, and specifications for the same made by tlie construction committee of said company," etc., and the plans, drawings, and specifications are neither set out, nor filed in the recorder's office, and there is no other attempt to state either their contents or character in the memorandum, it is insufficient: Wood v. Oakland & B. R. T. Co., 107 Cal. 500, 503, 40 Pac. Rep. 806. «••* Joost V. Sullivan, 111 Cal. 286, 294, 43 Pac. Rep. 896 (although the work, according to the memorandum, as shown above, was to be "prosecuted under the direction of M. J. "Welch, architect." See Reed v. Norton, 90 Cal. 590, 601, 26 Pac. Rep. 767, 27 Id. 426, the record of which shows that tlie memorandum referred to the plans and specifi- cations, and the general character of the work was "to build a two- story frame dwelling-house on said lot, resting upon a brick founda- tion and cellar, including all excavations and grading, all brick and masonry work, lathing and plastering, all carpenter and joiner work, doors, windows and glazing, all hardware, plumbing, gas-fitting, and trimming, all painting, and everything called for and in accord- ance with the plans and specifications prepared by H. S. Laird, archi- tect." The court said that the memorandum did not specify tliat any plans or specifications should be filed, "nor is it necessary to a proper memorandum that they should be." «» Blinn L. Co. v. Walker, 129 Cal. 62, 66, 61 Pac. Rep. 664. The court say: "The case is not directly within Donnelly v. Adams, 115 Cal. 129, 46 Pac. Rep. 916", nor the case of West Coast L. Co. v. Knapp, 122 Cal. 79, 54 Pac. Rep. 533. These cases 'hold, substantially, that the contract is not wholly in writing, as required by the statute, unless 241 REQUIREMENTS ESSENTIAL TO VALIDITY. §§ 310, 311 § 310. Same. Reference to detail drawings. Enlarged detail drawings, prepared during the course of construc- tion for the instruction of the workmen, which do not add to or change the contracts, specifications, or drawings on file, but merely show to the eye of the workmen how that which is called for in the contract is to be done, need not be filed with the memorandum, even if made a part of the same, nor filed at all, if made after the work was commenced. Reference to them in the contract is unnecessary, and w^orks no change therein, and such a reference is not to the signed plans and drawings made part of the contract ; but the phrase " detail drawings " is sufficiently ambiguous to allow an oral explanation of the architect to prove that it refers to such an amplification of the drawings constituting part of the contract. The architect, without such detail draw- ings, could stand over the workmen and give directions to the same end. Without such detail drawings, the original contract may be valid. ■^° § 311. Same. Payments. The mechanic's-lien law '^ re- quires that the memorandum of the contract shall contain a statement of " the total amount ''^ to be paid thereunder, and the amounts of all partial payments, together with the times when such payments shall be due and payable." ^^ The analogies suggested by defective statements of the statutory requirements as to statutory original contracts with reference to payments may be profitably considered in this connection, in the light of the object to be accomplished.^* the plans and specifications referred to are identified in writing- as part of the contract. The memorandum liere asserts notliing- as to the mode in whicli tliis was done in the making of the contract. If a defoct, it is one in the memorandum only. ; . . The specifications are otherwise sufllciently identified; they are attached to the memoran- dum as a part thereof." ■" Blinn L. Co. v. Walker, 129 Cal. 62, 67, 61 Pac. Rep. 664 (concur- ring opinion). " Kerr's Cyo. Code Civ. Proc, § 1183. « Snell V. Bradbury, 139 Cal. 379, 381, 382, 73 Pac. Rep. 150. " See Neihaus v. :Morgan (Cal.. June 2, 1896), 45 Pac. Rep. 255, 256 (no point, however, seems to have been made on these matters). " See S§ 272 et seq., ante. and. generally. §§ 286 et seq., ante; also Kerr'M Cjc. Code Civ. Proc, § 1184, and note. Mech. Liens — 16 §§312-314 mechanics' LIENS. 242 § 312. Time of filing contract or memorandum. The statutory t)riginal eoiitraet, or a proper memoraiidum thereof, must be filed before the commencement of the work; other- wise the contract is void.'^ The general rule, heretofore stated, '•* as to requirements not essential to the validity of the statutory original contract, seems applicable ; namely, that a substantial compliance with this provision is all that is necessary, provided no one is injured thereby, and there is no evidence of bad faith. '^^ § 313. Place of filing contract or memorandum. The statute '* regulating the i)lace of filing provides that the con- tract or the memorandum " shall ... be filed in the office of the county recorder of the county, or city and county, where the property is situated." No express provision seems to have been made where the property is situated in two coun- ties. On the other hand, the requirement of the statute '" in reference to the filing of the owner's notice of completion of the building and the claimant's claim of lien is, that the same must be filed with or in the office of the recorder of the county, or city and county, in which such property, or some part thereof, is situated.*" § 314. Conspiracy as to contract price. Under the stat- ute,*^ " if the owner and his contractor shall directly or in- ■"• Kerr's Cyc. Code Civ. Proo., § 1183, and note. See Willamette S. M. Co. V. Kremer, 94 Cal. 205, 207, 29 Pac. Rep. 633. As to materials furnished before filing eontraet. see Giant Powder Co. V. San Diego F. Co., 97 Cal. 263, 32 Pac. Rep. 172. See "Filing Contract," §294, and see, generally, §§286 et seq., ante. Colorado. Laws 1893, § 1, p. 315, seems to allow the filing after the commencement of the work, but work done or material furnished prior thereto " are deemed to have been done at the personal instance of the owner." '« §§ 270 et seq., ante. " Thus where the memorandum of contract was filed on a certain day, at 10:30 a. m., and the work, if any at all, commenced before t! e filing was of the most trifling nature, and was not commenced, at the earliest, until 8 or 8:30 a. m. of the same day. it is a sufficient filing before the work was commenced : Reed v. Norton, 90 Cal. 590, 600, 26 Pac. Rep. 767, 27 Id. 426. " Kerr's Cyc. Code Civ. Proc., § 1183. " Kerr's Cyc. Code Civ. Proc. § 1187. «" See, generally, "Filing Claim," §416, -post. " Kerr's Cyc. Code Civ, Proc, § 1202, as amended March 18, 1885. 243 REQUIREMENTS ESSENTIAL TO VALIDITY. § 314 directly conspire to or agree that the written contract filed shall appear to show the contract price to be less than it really is, and it shall accordingly so show, then such contract shall be Avholly void, and no recovery shall be had thereon by either party thereto, and in such case the labor done and materials furnished by all persons, except the contractor, shall be deemed to have been done and furnished at the per- sonal instance of the owner, and they shall have a lien for the value thereof." *- Penalties for conspiracy. It is to be observed that the conspiracy mentioned in the foregoing provision is attended with the same penalties as a failure to comply with the provisions of section eleven hundred and eighty-three,*^ as to statutory original contract. It is evident that this provision applies only to the statutory original contract ; «* and the same rules of construction to avoid penalties, it seems, would be equally applicable, as in the case of other similar penalties set forth in the statute. ^^ "= See Reed v. Norton, 99 Cal. 617. 618, 34 Pac. Rep. 333; California I. Const. Co. V. Bradbury, 138 Cal. 328, 334, 71 Pac. Rep. 346, 617, and dissenting- opinion of Beatty, C. J. "^ Kerr's Cyc. Code Civ. Proc., § 1183. and note. "^ See " Definition of Statutory Original Contract," §§ 214. 259, ante. And see Sidlinger v. Kerkow, 82 Cal. 42, 46, 22 Pac. Rep. 932. ''- See "Construction," §26, ante. 315 mechanics' liens. 244 CHAPTER XVII. BUILDING CONTRACTS (CONTINUED). C. Effect of Validity or Invalidity of Statutory Original Contract. § 315. Effect of validity of contract. Owner's liability. § 316. Same. Valid contract as notice. § 317. Same. Abandonment of contract. § 318. Same. How far subclaimants are bound by other terms of valid original contract. § 319. Effect of invalidity of statutory original contract. Gener- ally. § 320. Same. Classes affected by invalidity of contract. § 321. Same. Effect as between parties to the contract. § 322. Same. Contractor's lien on express or implied contract. § 323. Same. To what extent contract may be looked to by the parties. § 324. Same. Lien claimants, other than original contractor. § 325. Same. How far effective. C. EFFECT OP VALIDITY OR INVALIDITY OF STATUTORY ORIGINAL CONTRACT. § 315. Effect of validity of contract. Owner's liability.^ Where there is a valid contract between the owner and the contractor, sneh contract is the absolute measure of the owner's liability ; ^ and where there is such a valid contract, 1 Lien as limited by contract: See §§14, 33, 71, 28S, ante; "Lia- bility of Owner," §§ 523 et seq., post. 2 Hampton v. Christensen, 148 Cal. 729, 735, 84 Pac. Rep. 200; Stim- son M. Co. V. Braun, 136 Cal. 122, 124, 68 Pac. Rep. 481, 89 Am. St. Rep. 116, 57 L. R. A. 726; McDonald v. Hayes, 132 Cal. 490, 64 Pac. Rep. 850; Kellog-g- V. Howes, 81 Cal. 170, 175, 22 Pac. Rep. 509. Owner's liability under contract. " Wlien an owner of property has contracted with another to erect a building or otlier superstructure, or do any other work, or furnisli materials therefor, all subcontractors and parties ag'reeing to furnish labor or materials to such original contractor do so with reference to such original contract, in subordi- nation to its provisions and to the rights of the respective parties thereto, so far as they relate to the liability of the owner or the property, or so far as they rely on such liability; and any agreement such parties may make with such original contractor is, so far as relates to the owner or the property, subject to all the terms, agree- ments, conditions, and stipulations of such original' contract; and the owner or the property cannot be held liable or bound to any extent beyond the terms of the original contract, or such new or further contract as he may make with the original contractor or the sub- contractors. Any other rule' would place the owner and his property 245 EFFECT OF VALIDITY. § 316 under which the work is done, and which is performed bv the owner, all that the statute assumes to do, and in fact all that can be done, is to enable the subclaimants to cause the contract price to be applied to the payment of their de- mands. All that has been held upon this point is, that it is not an unreasonable interference with the right of the owner ; that whatever contract he makes shall be so executed and published that the constitutional policy may be carried out.^ Limitation on power of legislature. The legislature can- not give a right to a lien to an extent greater than the con- tractual price, under a valid contract, and the lien is limited by the terms of such contract.* § 316. Same. Valid contract as notice. Knowledge that there is a contract between the owner and the contractor, where the claimant is a subcontractor under the contractor, is sufficient to put the claimant upon inquiry, and he is to be considered as affected by notice of the eontents and stipu- lations of the contract when it is valid.^ And of the existence of the valid original contract, and its terms, subordinate lien claimants are presumed to have knowledge, and to have taken subcontracts and furnished labor and materials in sub- ordination thereto." completely at the mercy of the contractor; would give the contractor the power, without any authority whatever, to make contracts bind- ing- the owner and his property. There is nothing- in the relation of the parties which can, by any rule of law, vest in the contractor any such power" : Bowen v. Aubrey, 22 Cal. 566, 571 (1858). 3 Gibbs V. Tally, 133 Cal. 373, 377, 65 Pac. Rep. 970, 60 L. R. A. 815. * Stimson M. Co. v. Braun, 136 Cal. 122, 125, 126, 68 Pac. Rep. 481, 89 Am. St. Rep. 116, 57 L. R. A. 726. It must be admitted that the reason- ing- of this case, carried to the logical conclusion, could enable a con- tractor and owner to enter into a contract which would prevent any mechanic's lien from being enforced against the property. The quotation of the court from Gibbs v. Tally, 133 Cal. 373, 65 Pac. Rep. 970, 60 L. R. A. 815, does not go to the extent apparently claimed for it in the opinion. The former case goes very close to the doctrine that although the legislature may require the filing of a statutory original contract as a condition of its validity, yet it cannot interfere with any provision of the contract, which may contain such terms as the parties may see fit to agree to. The development of the rule laid laid down in tliis case may therefore be watched with interest. = Bowen v. Aubrey, 22 Cal. 566, 571 (1858). « Shaver v. Murdock, 36 Cal. 293, 298 (1862); Henley v. Wadsworth, 38 Cal. 356, 361 (1862); Dingley v. Greene, 54 Cal. 333, 337; Kellogg v. Howes, 81 Cal. 170. 175, 6 L. R. A. 588. 11 Pac. Coast L. J. 589; Walsh V. McMenomy, 74 Cal. 356, 359, 16 Pac. Rep. 17. See Wilson v. Barnard, C7 Cal. 422, 423, 7 Pac. Rep. 845. §§ 317, 318 mechanics' liexs. 246 Subclaimants, in the absence of fraud or misrepresentation by the owner, are conehisivelv presumed to have knowledge of the provisions of such original contract, and its terms are binding upon them, with reference to any demand against the owner or his property/ § 317. Same. Abandonment of contract. The statute * provides a mode in which the owner may limit his liability; viz., by causing the statutory original contract to be filed in the recorder's office ; but it is only " in the case of a contract for the work " duly filed that the amount of the lien is lim- ited by the contract price, where the contract price exceeds one thousand dollars, and such limitation remains even though the contractor " shall fail to perform his contract in full, or shall abandon the same before completion." ° And if the statutory original contract is valid, the owner cannot be held liable beyond the cg^ract price, whether the contract is performed or abandoned.^" § 318. Same. How far subclaimants are bound by other terms of valid original contract. It must be admitted, at the outset, that the California authorities are neither clear, logi- cal, nor consistent upon this point. So far as the mere extent of liability is concerned, there is no faltering decision that, under a valid contract, the price agreed is the limit of the owner's responsibility and the boundary which marks the claim against his land. The cases, for the most part, have arisen upon completion of the contract, upon abandonment of the same, or malperformauce of the terms thereof, or for Colorado. Jensen v. Brown, 2 Colo. 694, 696: Davis v. Mouat L. Co., 2 Colo. App. 381, 31 Pac. Rep. 187; Ditto v. Jackson, 3 Colo. App. 281, 33 Pac. Rep. 81 (1889). ' Henley v. Wadsworth, 38 Cal. 356, 361 (1862). See Downing v. Graves, 55 Cal. 544, 548. See "Void Contract," §§319 et seq., post; "Liability of Owner," §§ 523 et seq., post; " Rights of Subcontractors," § 71, ante « Kerr's Cye. Code Civ. Proc, § 1183. » Willamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 229, 237. 29 Pac. Rep. 629. 10 McDonald v. Hayes, 132 Cal. 490, 495, 64 Pac. Rep. 850; Greig v. Riordan, 99 Cal. 316, 319, 33 Pac. Rep. 913; Johnson v. La Grave, 102 Cal. 324, 325, 36 Pac. Rep. 651; Stimson v. Dunham Co., 146 Cal. 281, 79 Pac. Rep. 968. 247 EFFECT OF VALIDITY. § 318 delay in its perforniance, upon wiiich the owner may recoup the damages for failure properly to perform the contract, except as against the final payment of twenty-five per cent. But there are many other provisions of a valid contract be- sides the mere payment of the contract price, or so much thereof as would be due to the contractor from the owner, after deducting such counterclaims. Lumber and workmanship below contract requirements. Where, for instance, the contractor obligates himself to construct with first-class lumber, and he uses second-class lumber, in what sense is a subclaimant bound by the pro- vision in the original contract requiring the use of first-class lumber only? Is the material-man to lose his lien because he has knowledge that the original statutory contract on file, of which he is bound to take notice, declares that only first-class lumber is to be used in the structure, and second- class lumber is furnished by him to the contractor for the building, upon the latter's order? And likewise as to the work performed by subcontractors under such original con- tract. It has been held that the w^ork of the subcontractor must comply with the terms of such original contract,^^ and, more recently,^^ that the material-man and subcontractor, under such circumstances, in the absence of conspiracy or fraud, have liens upon the property, and this, in our view, is the better doctrine ; for the same rule would otherwise apply " Downing v. Graves, 55 Cal. 544, 549. Subcontractor bound by contract of person through whom he claims, and his right to lien is measured by contractor's right under the contract : Culmer v. Caine, 22 Utah 216, 61 Pac. Rep. 1008. See Van Clief v. Van Vechten, 130 N. Y. 571. As to iiiateriaLs and liens being- such as contract calls for to entitle material-man or suljcontractor to a lien, see Tabor v. Armstrong, 9 Colo. 285, 12 Pac. Rep. 157; also 20 Am. & Eng. Encyc. of L., 2d ed., pp. 362, 369. '^ See S§ 71, 103, ante. Materials must be suitable for the purpose for wliich furnished, or there will be no right to a lien: Boynton F. Co. v. Gilbert, 87 Iowa 15, 53 N. W. Rep. 1085; Harlan v. Rand, 27 Pa. St. (3 Casey) 511. Materials not of quality required to be used in particular building, but of such a character as miglit ordinarily be used in such buildings, there is a right on part of material-man to a lien: Odd Fellows' Hall V. Masser, 24 Pa. St. (12 Harris) 507, 64 Am. Dec. 675. L,ien for inferior materials, where used in the improvement : Odd Fellows' Hall v. Masser, supra: Wisconsin R. P. B. Co. v. Hood, 67 Minn. 329, 69 N. \V. Rep. 1091, 64 Am. St. Rep. 418. § 318 mechanics' liens. 248 to all subclaimants, and would require the mere laborer of the contractor constantly to inspect the plans and specifica- tions and the provisions of the contract at each step of his work, and would lead to a reductio ad absurdum, and cause the statute to become a snare, if not an absolute impediment to all work of construction. Owner's redress for failure to comply with terms. But, vet, the owner should in some way be protected against the non- compliance with the terms of such contract, and he is so protected; for the fund to which such liens attach may be great or small, in accordance with the counterclaims which the owner may assert, owing to the non-performance or mal- performance of the original contract. If the contractor should not recover on the contract because he failed to per- form to an extent justifying the court in refusing any .judg- ment for any amount in favor of the contractor, no doubt his subclaimants, in case the original contract were valid, would be bound by such failure to perform ; and if the con- tractor can recover nothing, and subclaimants under such valid contract should find the fund evaporated, and while their liens might be valid, as such, there would be nothing to which they could attach. So far, perhaps, the authorities go, except, it may be, the recent case which holds that the final pa.yment of twenty-five per cent, required by the statute in cases of statutory original contracts, is not subject to deduc- tions for malperformance, if not for non-performance.^^ " The decision in Hampton v. Cliristensen, 148 Cal. 729, 735, 84 Pac. Rep. 200, does not fuUy coincide with the doctrine of the text; for it holds that, as to the final payment of twenty-five per cent, the owner cannot counterclaim his right to damages for omissions or failure to carry out the statutory original contract (and the rule laid down can apply to such contract only), or for damages for delay, until sub- claimants have their liens first satisfied. This is based upon the alleged policy of the constitution that such claimants shall have a lien; but it may be answered : 1. That the constitution does not pro- vide for the liens of all claimants under the protection of the statute: See § 28, ante; 2. That it has also been held that this provision of the constitution is subordinate to other provisions of the same instrument guaranteeing the right to possess and enjoy proi)erty, etc.: See §§ 32 et seq., ante; 3. That it is contrary to Reed v. Norton, 90 Cal. 590, 593, 602, 26 Pac. Rep. 767, 27 Id. 426. See " Abandonment," ■§§ 358 et seq., post. The mere fact that the owner can, as contended in the Hampton case, make the payment upon completion of the structure sufficiently large to enable him to protect himself against malfeasance or nonfeasance of the contractor in carrying out his contract, it is sub- 249 EFFECT OF VALIDITY. § 318 If the valid contract is not entirely broken by the non- feasance or malfeasance of the contractor, but such omissions or breaches of contract can be compensated to the owner in damages," there may be some fund to the extent of which the subclaimants may go upon the property as security for their demands. mitted, is no answer; for, in the first place, such payment may not possibly be made large enough, outside of the final payment of twenty- five per cent, and in the next place, it would require the owner to make certain definite provisions in his contract, which would be as much an interference with his right to contract as the provision of § 1184 of the Code of Civil Procedure, requiring him to make payment only in money, which was held unconstitutional: Stimson M. Co. v. Braun, 136 Cal. 122, 125, 126, 68 Pac. Rep. 481, 89 Am. St. Rep. 116, 57 L. R. A. 726. DeeiKiions unsatisfactory. The decisions in these matters are far from being in a satisfactory condition. If the effect of the consti- tutional provision (§ 15, art. xx, Henning's General Laws, p. civ), as to "mechanics, material-men, artisans, and laborers of every class," is to give a lien to such persons, wliy should they not have a lien for the full value of their materials or labor? The constitution ex- pressly says so. Here again arises the question as to whether a direct or indirect lien is given: See §§ 10 et seq., ante. Under the constitu- tion, it seems that no indirect lien is provided for, although it has not been so expressly decided. It may vrell be que.>«tioned whether the provision as to final pay- ment, as contended in the Hampton case (148 Cal. 729, 735, 84 Pac. Rep. 200), is a law enacted by the legislature in obedience to the con- stitutional mandate that it "shall provide by law for the speedy and efficient enforcement of such liens": for the provision, it seems, can in no sense be said to be a law relative to the enforcement of the lien, which would relate rather to matters of procedure: but, on the con- trary, it is a provision predetermining what the original contract in certain cases shall contain. As far as the material-man i.s concerned, upon abandonment the material on the ground belongs to the owner, under § 1200 of the Code of Civil Procedure. That is one way by which the statute attempts to present value to the owner, for which, upon the general theory of such liens, the material-man should have a lien. The title to such material, of course, would ordinarily be in the contractor. If the laborer performs work upon the structure, the value has gone into the owner's building, and upon the same theory the laborer should have a lien. But if, notwithstanding the furnishing of this material or the performance of this work, the contractor absolutely fails to perform his contract as to the manner and mode of construction, as, for instance, to take a case not probable in practice, but possible In conjecture, the contractor should build a bathhouse when he should construct a large hotel, how are the rights of the various parties to be adjusted? Is the owner to pay the laborers from the final twenty- five per cent? The contractor would be entitled to nothing. The owner has something he does not want, possibly a great damage to hi- land — a thing which lie may have to destroy at his own loss and expense. It could hardly he urged, under sucli circumstances, tliat the material-man or laborer nad conferred value upon the owner. " See " Performance." Sg 334 ct seq., post. § 319 mechanics' liens. 250 Substantial compliance with contract. While not entirely in accord with the decisions, it is submitted that this state- ment of the law reconciles apparently conflicting decisions, makes the statute plain and comprehensive, and adequately renders justice to all concerned. The subclaimant is, to the full extent, bound by the valid contract, as to the terms of which he is presumed to have knowledge, and all the rights of the owner are preserved, without rendering the statute either a burden or an absurdity. The subclaimant, on the other hand, does not lose his lien, in the absence of fraud or conspiracy, by failure to furnish materials or perform work in accordance with the terms of the valid original contract, although by so doing, with or without actual knowledge of the terms of the contract on file, as to which he may inform himself, he takes the risk of having his lien drained of all value by consciously or unconsciously aiding the contractor in his breach of the original contract. § 319. Effect of invalidity of statutory original contract. Generally. ^■'' The failure to file a legal statutory original contract, or a sufficient memorandum thereof, within the proper time, as required by the statute, ^•' renders the con- tract, according to the language of section eleven hundred and eighty-three,^^ wholly void.^^ The same result, according to the terms of the statute, flows from a conspiracy embodied in the statutory original contract to make the contract price less than it really is.^** i» Abandonment of void contract, rigrlits of subclainiants in fund: See Stimson M. Co. v. Nolan (Cal. App.. June 19, 1907), 91 Pac. Rep. 262; Berentz v. Belmont O. M. Co., 148 Cal. 577, 584, 84 Pac. Rep. 47, 113 Am. St. Rep. 308. See "Abandonment," §§358 et seq., post. " Kerr's Cyc. Code Civ. Proc, § 1183. " Id. 18 Kerr's Cyc. Code Civ. Proc., §§ 1183, 1202, and notes. See San Diego L Co. V. Wooldredg-e, 90 Cal. 574, 578, 27 Pac. Rep. 431; Willam- ette S M Co. V. Kremer, 94 Cal. 205, 207, 29 Pac. Rep. 633; Willam- ette S.' M. L. & M. Co. V. Los Angeles CoUege Co., 94 Cal. 229, 233, 29 Pac Rep. 629; Giant Powder Co. v. San Diego F. Co.. 76 Cal. 193, 197, 20 Pac Rep. 419, s. c. 97 Cal. 263, 264, 32 Pac. Rep. 172; Barker v. Doherty, 97 Cal. 10, 31 Pac. Rep. 1117; Booth v. Pendola, 88 Cal. 36, 41, 25 Pac. Rep. 1101, 24 Pac. Rep. 714; Schallert-Ganahl L. Co. v. iSTeal, 90 Cal. 213, 214, 27 Pac. Rep. 743; Smith v. Bradbury, 148 Cal. 41, 82 Pac. Rep. 367, 113 Am. St. Rep." 189. " Kerr's Cyc. Code Civ. Proc, § 1202. 251 EFFECT OF VALIDITY, §§ 320, 321 § 320. Same. Classes affected by invalidity of contract. Three classes of persons are affected by the invalidity of the statutory original contract: 1. The owner; 2. The original contractor; and 3. Material-men, subcontractors, artisans, laborers, and other persons given liens under the statute. '° It was formerly held that when such a contract is " wholly void," it is void as to everybody whose rights would be affected by it if valid,^^ and that there is neither an "original contract " nor an " original contractor." -- These rules have been modified with reference to the first and second classes above mentioned, as will be hereafter more fully discussed.-^ § 321. Same. Effect as between parties to the contract. As between the parties to such a void statutory original contract, while it was formerly held that it was void for every purpose, as if no contract had been made,-* this doc- trine has been considerably modified. The evident intent of the statute was to make it an object for both the contractor and owner to put in writing and record their building contract, where the amount agreed to be paid is in excess of one thousand dollars. The penalty which attaches to the owner for failure to do so is, that he may be held liable for the value of all labor done and ma- terials furnished by all persons other than the contractor, without reference to the contract price.-^ The contractor suffers the penalty, on a like failure, of being excepted from the class of persons who may take liens under the law.-** ^ Laidlaw v. Marye, 133 Cal. 170, 172, 62 Pac. Rep. 391. " Kellogg V. Howes, 81 Cal. 170, 178, 22 Pac. Rep. 509, 6 L. R. A. 588. 11 Pac. Coast L. J. 589, explaining Giant Powder Co. v. San Diego F. Co., 78 Cal. 193, 20 Pac. Rep. 419 (as to the "contract remaining to mark the extent of the recovery of lien-holders," etc.). " Willamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 229, 237, 29 Pac. Rep. 629; Rebman v. San Gabriel V. L. & W. Co., 95 Cal. 390, 395, 30 Pac. Rep. 564. See " Original Contractor," § 52, ante. ^ See §§ 321 et seq., post. " Kellogg V. Howes, 81 Cal. 170, 178, 22 Pac. Rep. 509, 6 L. R. A. 588, 11 Pac. Coast L. J. 589; Willamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 229, 236, 29 Pac. Rep. 629; Davis v. MacDonough, 109 Cal. 547, 549, 42 Pac. Rep. 450. But see "Evidence." §§ S07, 808, post. ^ Morris v. Wilson, 97 Cal. 644, 645, 32 Pac. Rep. 801; Stimson M. Co. V. Nolan (Cal. App.. June 19. 1907), 91 Pac. Rep. 262. =" IMorris v. Wilson. 97 Cal. 644, 645, 32 Pac. Rep. 801; McClain v. Hutton, 131 Cal. 132, 142, 61 Pac. Rep. 273, s. c. 63 Pac. Rep. 182, 622. §§322,323 MECiiAxics' LIENS. 252 Void contract cannot be basis of recovery by the contrac- tor against the owner ; nor can it be looked to for the purpose of determining when any payment is to be made." Neither can it be the basis of a recovery by the contractor against the owner for damages thereunder, as for not being allowed to complete the building ; -^ nor by the owner against the contractor, as for not completing the building in time ; -^ nor as a foundation of the right to complete the building accord- ing to its terms.^° § 322. Same. Contractor's lien on express or implied con- tract. The failure to file such contract or memorandum, as before stated, deprives the contractor of his lien, and also 6f his remedies on the express contract, but he does not, by such means, acquire any greater right to a recovery for his labor and materials than he would have had if he had brought the action irrespective of his right to a lien.^^ Nor can the contractor, under such circumstances, tile a claim of lien upon the implied contract for the demand upon which a recovery could be had on the original contract if valid. ^^ § 323. Same. To what extent contract may be looked to by the parties. The statutory original contract, although void, may be looked to for the purpose of determining what should be treated as a part of the building.^^ It constitutes the measure and test of recovery by the contractor upon the implied contract,^* and though it cannot be the basis of 2' Willamette S. M. L. & M. Co. v. Los Angeles College Co., 229, 236, 29 Pac. Rep. 629; Rebman v. San Gabriel V. L. & W. Cal. 390, 395, 30 Pac. Rep. 564. -■* Palmer v. White, 70 Cal. 220, 221, 11 Pac. Rep. 647. =» Rel man v. San Gabriel V. L. & W. Co., 95 Cal. 390, 396, Rep. 564; Holland v. Wilson, 76 Cal. 434, 18 Pac. Rep. 412. 3» Willamette S. M. L. & M. Co. v. Los Angeles College Co., 229, 240, 29 Pac. Rep. 629; Rebman v. San Gabriel V. L. & W. Cal. 390, 396, 30 Pac. Rep. 564. 31 Marchant v. Hayes, 117 Cal. 669, 671, 49 Pac. Rep. 840. 32 Morris v. W"ilson, 97 Cal. 644, 646, 32 Pac. Rep. 801. 33 Macomber v. Bigelow, 126 Cal. 9, 12, 58 Pac. Rep. 312. 3» Camp V. Behlow, 2 Cal. App. 699, 701, 84 Pac. Rep. 251. The lan- guage of this decision, that the " contract is not void between the parties," and the fact that the contract was not filed is immaterial, where no lien is involved, seems to show a misconception of the decision in Laidlaw v. Marye, 133 Cal. 170, 173, 65 Pac. Rep. 391. If 94 Cal. Co ., 95 30 Pac. 94 Cal. Co i.. 95 253 EFFECT OF VALIDITY. § 323 a recovery by the contractor, upon implied assumpsit, with- out attempting to enforce a lien, the measure of his recovery must, in any event, be limited by the contract price, and he must show a substantial compliance with its terms to Avar- rant any such recovery at all.^^ the contract were not void between the parties, a recovery could be had upon the express contract. AH that the Laidlaw case holds is, that the void contract may be looked to as evidence to determine the outside limit of the owner's liability on the implied contract, and whether a benefit has been conferred at the request of the owner as evidenced by such void contract, upon which to base an action on the implied contract, under the general principles of law; in other words, the void contract survives, not as a contract, but merely as evidence of another contract for certain purposes, between the parties. '= Laidlaw v. Marye, 133 Cal. 170, 176, 65 Pac. Rep. 391, in which it is said: "We thinlt further, that the error arose in Rebman v. San Gabriel V. L. & W. Co., 95 Cal. 390, 30 Pac. Rep. 564, by misapplication to orig-inal contractors of language directed solely to the case of subcontractors, material-men, artisans, and laborers. Heretofore, as will subsequently be pointed out, the court, by the logic of necessity, if from no other consideration, has felt compelled to modify the force of the Rebman decision, but it is certainly preferable that it sliould at once be overruled, if it be untenable, rather than that it should be undermined and eaten away after a long course of vexatious and expensive litigation, tilling the books with discriminated cases, all receding further and further from, and growing more and more dis- similar to, the parent case. When the statute declares that the con-, tract shall be wholly void, it means, as Willamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 229, 230, 29 Pac. Rep. 629, decided, that it is wholly void as to the third class above designated, who there upon become entitled to liens for the full value of their material and service, and are deemed to have furnished them to the owner at his special request. By thus allowing full compensation to this class, the owner is sufficiently punished for any remissness on his part, while, with like measure, the original contractor is penalized by losing his lien. But the law never meant to reward the contractor for his dis- obedience, by conferring upon him, for its violation, greater rights than would have been his had he obeyed it. Therefore, as between him and the owner, the contract must remain, not the basis of his recovery, but the measure and test of his right to recover. He must still show a substantial compliance with its terms, to warrant any recovery at all, and the measure of his recovery, even under implied assumpsit, must be limited, as to him, by the contract price. Thus only is the law given a just and harmonious operation. In Barker v. Doherty. 97 Cal. 10. 31 Pac. Rep. 1117, the cases of Kellogg v. Howes! 81 Cal. 170, 22 Pac. Rep. 509, and Willamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 230, 29 Pac. Rep. 629, were the subject of review, and it is said: 'Those cases decided that the contract was void as forming the basis of a recovery, and no legal liability could be created by any of its provisions. This would seem to be apparent from a cursory reading of the provision itself. It was never intended to hold, in those cases, that the writing could not be used as evidence to determine the character of the building to be erected, and thereby to furnisli the test by which it could be known when the building was completed. Such is evident from the fact that in those cases the test § 324 mechanics' liens. 254 § 324. Same. Lien claimants, other than original con- tractor. Sections eleven hundred and eighty-three and twelve hundred and two ^'^ provide that when the statutory original contract is void " the labor done and materials fur- nished by all persons aforesaid, except the contractor, shall be deemed to have been done and furnished at the personal instance of the owner, and they shall have a lien for the value thereof." This simply preserves the right of claimants under the original contractor to a lien when the original contract is void for the statutory reasons,^^ but does not give a right of personal judgment against the owner, when no privity exists, and then the lien of subclaimants is not limited by the amount due the contractor from the owner.^^ Where there is no contractual relation between the owner and the claimant, the statute, in order to effectuate the lien in the contingencies mentioned, in deeming that the labor is per- formed or the material is furnished at the personal instance of the owner, does so simply for the purpose of the liens, and the statute creates, by its own force and vigor, such a relation for a specific purpose, namely, to uphold the liens. In such case, the statute does not, however, create, or attempt to create, a contractual relation or privity between the owner and the claimants upon which a personal action wnll lie.^^ This liability of the owner for the amount of liens above the contract price is a statutory liability, and not by of completion of the buildings was furnished by an inspection of the very contracts which were held to be " wholly void." Any other inter- pretation of this provision of the statute would lead to inextricable confusion, and practically nullify the entire section.'" And see Sulli- van V. California R. Co., 142 Cal. 201, 203, 204. 75 Pac. Rep. 767: Camp V. Behlow, 2 Cal. App. 699, 84 Pac. Rep. 251, holding that Kuhlman v. Burns, 117 Cal. 469, 49 Pac. Rep. 585, is no longer the law, as it was overruled by Laidlaw v. Marye, 133 Cal. 170, 65 Pac. Rep. 391. See also note 34, this section. 36 Kerr's Cyc. Code Civ. Proc, §§ 1183, 1202. " Southern Cal. L. Co. v. Schmitt, 74 Cal. 625, 627, 16 Pac. Rep. 516; McMenomy v. White, 115 Cal. 339, 47 Pac. Rep. 109; First Nat. Bank V. Perris Irr. Dist., 107 Cal. 55, 65, 40 Pac. Rep. 45; Madera F. & T. Co. V. Kendall, 120 Cal. 182, 184, 52 Pac. Rep. 304, 65 Am. St. Rep. 177. 3s San Francisco L. Co. v. O'Neil, 120 Cal. 455, 456, 52 Pac. Rep. 728. 39 Gnekow v. Confer (Cal., March 31, 1897), 48 Pac. Rep. 331. Se<; Kellogg V. Howes, 81 Cal. 170, 179, 22 Pac. Rep. 509, 6 L. R. A. 588. 11 Pac. Coast L. J. 589; San Francisco L. Co. v. O'Neil, 120 Cal. 455, 456. 52 Pac. Rep. 728. 255 EFFECT OF VALIDITY. § 324 virtue of the contract with the contractor.*" And where the contract is void, the statute, and not the contract, measures the extent of the recovery on liens, and there is no contract of which the subcontractor is bound to take notice, and his knowledge that a contract was attempted to be made, but was not, cannot affect his rights.*^ And in any action against the owner by subclaimants, their rights are to be determined by other rules, and irrespective of any provision of such contract.*- There being no contract, it would follow, even though the statute had not said so, that the owner himself is building the structure, and in that case the so- called contractor is (as to other lienors) but the statutory agent of the owner. *^ By the failure to file such contract, subclaimants have no means of knowing whether the contract is in writing or not, or whether it is for more or less than one thousand dollars.** They have no notice of payments to be made, or when they will fall due, or at what time they are required to give the owner notice. As a penalty for not affording them this means of knowledge by filing such contract as is required by the statute, the owner is deemed to have con- tracted for the material, so far as the right of lien is con- cerned, and his property is bound for the value of such material.*^' Lien claimants must follow^ statute. But the subclaimants, if they desire to enforce the lien upon the property, must follow those provisions of the statute which are prescribed for preserving the lien when the claimant has in fact per- formed his labor or furnished his materials at the personal instance of the owner ; *" and a lien can be had for labor or *" Boas V. Maloney, 138 Cal. 105, 107, 70 Pac. Rep. 1004. " Kellogg V. Howes, 81 Cal. 170, 179, 22 Pac. Rep. 509, 6 L. R. A. 588, 11 Pac. Coast L. J. 589. « Willamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 229, 236, 29 Pac. Rep. 629. " Gibbs V. Tally, 133 Cal. 373, 377, 65 Pac. Rep. 970. 60 L. R. A. 815. " Berentz v. Belmont O. M. Co., 148 Cal. 577, 584, 84 Pac. Rep. 47, 113 Am. St. Rep. 308. ^= Davies-Henderson L. Co. v. Gottschalk, 81 Cal. 641, 645, 22 Pac. Rep. 860. ''• Davis V. MacDonough, 109 Cal. 547, 549, 42 Pac. Rep. 450; Southern Cal. L. Co. vJ Schmitt, 74 Cal. 625, 627, 16 Pac. Rep. 516. § 325 mechanics' liens. 256 materials furnished before the filing of a void statutory original contract.^^ § 325. Same. How far effective. While it has been said that a void statutory original contract is absolutely void as against lien claimants other than the contractor,^* yet the contract may be looked to by claimants other than the con- tractor to determine the character of the building to be erected, and thereby to furnish a test by which it can be known when the building is completed.*® And although the contract may be void, a bond guaranteeing performance of all the conditions of the contract, and that the house to be constructed by the contractor should be delivered free from all liens that might arise from and be filed against the build- ing on account of material or labor furnished to the contrac- tor and used in or about the structure, is valid, and binding upon the sureties.^*' The material-man is not estopped from claiming that the contract is void from the fact that he has contracted to furnish the lumber and made out bills with express refer- ence to the plans and specifications.^^ Deduction from the authorities may fairly be made, that, notwithstanding the formal statements that the void statu- tory original contract is entirely void as to all claimants other than the original contractor, it may still be looked to for the purpose of working out some necessary benefit for those whom the statute intended to favor, and not to penalize. « WiUamette S. M. L. & M. Co. v. Los Angeles CoUege Co., 94 Cal. 229, 237, 29 Pac. Rep. 629; Giant Powder Co. v. San Diego F. Co., 97 Cal. 263, 264, 32 Pac. Rep. 172. « Laidlaw v. Marye, 133 Cal. 170, 176, 65 Pac. Rep. 391. " Baker v. Doherty, 97 Cal. 10, 12, 31 Pac. Rep. 1117; Joost v. Sul- livan, 111 Cal. 286, 292, 43 Pac. Rep. 896. See "Void Contract as Evidence," §§ 807, 808, post. =0 Void contract, effect on sureties: Blyth v. Robinson, 104 Cal. 239, 241, 37 Pac. Rep. 904; Kiessig v. Allspaugh, 91 Cal. 234, 237, 27 Pac. Rep. 662, 13 L. R. A. 418, s. c. 99 Cal. 452, 454, 34 Pac. Rep. 106; McMenomy v. White, 115 Cal. 339, 344, 47 Pac. Rep. 109; Summerton V. Hanson, 117 Cal. 252, 49 Pac. Rep. 135. See " Sureties," §§ 605 et seq., post. " W^est Coast L. Co. v. Knapp, 122 Cal. 79, 54 Pac. Rep. 533, 534, in which the court say, however: " They probably did not then know that the contract was. void. They have not misled defendant, nor induced him to change his position, and it does not appear that they have suppressed knowledge of the invalidity while dealing with the contractor." 257 EXTINCTION OF CONTRACT. § 326 CHAPTER XVIII. BUILDING CONTRACTS (CONTINUED). EXTINCTION OF CON- TRACT. § 326. Alteration of original contract. Statutory provisions. § 327. Same. To what original contracts provisions applicable. § 328. Same. Statutory original contract. § 329. Same. Alterations, how evidenced. Effect. § 330. Same. Extending credit. § 331. Same. Payments. § 332. Same. Power of architect to alter contract. §333. Novation. § 334. Performance of contract. How considered herein. § 335. Same. Original contract valid. § 336. Same. Original contract void. § 337. Same. Time of performance. § 338. Same. General rule. Conditions. § 339. Same. Excuses for non-performance. S 340. Same. Performance of warranty. § 341. Same. " Trifling imperfection." § 342. Same. Substantial performance generally required. § 343. Same. General principles. § 344. Same. Slight difference in value. § 345. Same. Conveniences. § 346. Same. Erection of structure iu part only. § 347. Same. " Completion " of mining claim. § 348. Statutory equivalents of completion for the purpose of filing claims of lien. § 349. Same. Statutory provisions. § 350. Same. Occupation and use. Scope and object of statutory provisions. § 351. Same. Character of occupation or use. § 352. Same. Void contract. § 353. Same. Acceptance. Waiver. § 354. Same. Cessation from labor for thirty days. Statutory pro- vision. § 355. Same. Scope of provision. § 356. Same. Character of cessation. § 357. Same. As affected by validity or invalidity of original con- tract. § 358. Abandonment of original contract. § 359. Same. Owner's liability. § 360. Same. Justification for abandonment. Mech. Liens — 17 § 326 mechanics' liens. 258 § 326. Alteration of original contract.^ Statutory pro- visions. The Code of Civil Procedure - provides, among other things : " No payment made prior to the time w^hen the same is due, under the terms and conditions of the contract, shall be valid for the purpose of defeating, diminishing, or dis- charging any lien in favor of any person, except the con- tractor, but as to such liens, such payment shall be deemed as if not made, and shall be applicable to such liens, not- withstanding that the contractor to whom it was paid may thereafter abandon his contract, or be or become indebted to the reputed owner in any amount for damages or other- wise, for non-performance of his contract or otherAvise. As to all liens, except that of the contractor, the whole contract price shall be payable in money, and shall not be diminished by any prior or subsequent indebtedness, offset, or counterclaim, in favor of the reputed owner and against the contractor ; no alteration of any such contract shall affect any lien acquired under the provisions of this chapter. In case such contracts and alterations thereof do not conform substantially to the provisions of this section, the labor done and materials furnished by all persons except the contractor shall be deemed to have been done and furnished at the per- sonal instance and request of the person who contracted with the contractor, and they shall have a lien for the value thereof." 1 Modification of contract: See Booth e v. Squaw Springs W. Co., 142 Cal. 573. 577, 76 Pac. Rep. 385: GiUiam v. Brown, 116 Cal. 454, 48 Pac. Rep. 486. Modification of contract for street-worlc: See Flinn v. Mowry, 131 Cal. 481. 485, 63 Pac. Rep. 724, 1006. Modification of contract to con.struct tunnel: See SuUivan v. Grass Valley F. M. & M. Co.. 77 Cal. 418, 422, 19 Pac. Rep. 757. Premature payment: See Ganahl v. Weir, 130 Cal. 237, 239, 62 Pac. Rep. 512. Hawaii. See Pacific H. Co. v. Lincoln, 12 Hawn. 358, 359. Oregon. Modification of orig-inal contract, whereby owner pur- chased materials: See Cline v. Shell. 43 Oreg. 372, 73 Pac. Rep. 12. Alterations in contract affecting sureties: See Enterprise Hotel Co. V. Book (Oreg.), 85 Pac. Rep. 333, 336. W'asliington. Provision in contract as to modifications: See Drum- heller V. American S. Co., 30 W^ash. 530, 71 Pac. Rep. 25, 29. Interlineation altering contract not avoiding same: See Young- v. Borzone, 26 Wash. 4, 66 Pac. Rep. 135, 421. Altersitions of contract affecting sureties: See De Mattos v. Jor- dan, 15 Wash. 378. 46 Pac. Rep. 402. » Kerr's Cyc. Code Civ. Proc, § 1184, in effect March 15, 1887. M 259 EXTINCTION OP CONTRACT. §§327,328 Another section^ of the same code provides: "It shall not be competent for the owner and contractor, or either of them, by any term of their contract, or otherwise, to waive, affect, or impair the claims and liens of other persons, whether with or without notice, except by their written con- sent, and any term of the contract to that effect shall be null and void." § 327. Same. To what original contracts provisions applicable. All of the provisions set forth in the foregoing section undoubtedly apply to statutory original contracts; and the extent of their application to non-statutory original contracts has been elsewhere considered.'* The provisions as to contracts apply only to " original contracts." ^ The expression " any such contract," used in the first part of section eleven hundred and eighty-four, above quoted, relating to payments, and the expression " such contracts," in the last sentence in the above quotation, have been held to relate only to statutory original contracts.** § 328. Same. Statutory original contract. While there are points at which questions will arise," it has been said that » Kerr's Cyc. Code Civ. Proc., J 1201. * See §§ 258 et seq., ante. In Anderson v. Johnston, 120 Cal. 657, 659, 53 Pac. Rep. 264, the question arose between the contractor and the owner, and an executed oral agreement changing the terms of a written non-statutory original contract was allowed. Some of tlie provisions do not seem to be applicable to non-statutory original contracts: Denison v. Burrell, 119 Cal. 180, 183, 51 Pac. Rep. 1. See §§ 258 et seq., ante. = See § 211, ante. " Sidlinger v. Kerkow, 82 Cal. 42, 44, 22 Pac. Rep. 932. See §§ 269 et seq., ante, and " Payments," §§ 272 et seq., ante. ' See " Impairment of Liens," S 284, ante. Before the enactment of §§ 1184 and 1201, Code of Civil Procedure, in present form, where the contract provided "in case any additions, omissions, or alterations of the plans may be required by the owner during the progress of the work, they shall be acceded to by the contractor or contractors, and be carried into effect without in any way violating or vitiating any contract that might have been made for work or materials connected therewith," it was held that the owner might insist upon departures from the specifications without violating the contract between them: Downing v. Graves, 55 Cal. 544. 548 (decided in 1880; suit by a per.son deemed to be a sub- contractor for labor and materials, but no lien was attempted to be enforced). § 328 mechanics' liexs. 260 the statutory original contract is subject to change and modification by the parties thereto.^ The statute/' however, does not, in express terms, make the alterations of a valid statutory original contract void for failure to comply with any of the essential formalities of the statutes; but, under the provision of section eleven hundred and eighty-four,^" above quoted, the alterations of such contracts, so far as they relate to payments, must comply substantially with the provisions of the last-named section ; otherwise the claim- ant maj' have a lien for the value of the labor done and materials furnished.^^ Section twelve hundred and one, above quoted, applies to the alterations of statutory original contracts which affect or impair a lien already acquired, but not to non-statutory original contracts; ^- and, independently of such a provision, where there was an original contract, the owner and con- After aineniliiieut o£ § 11S4 and enactment of § 1201, where the statutory orig-inal contract provided that tlie owner is at liberty to have changes or alterations made without affecting the contract, the cost thereof to be added or subtracted, as the case mig-ht be, and a second and unrecorded contract was made amending the first, the court deemed it unnecessary to consider the fact of such amendments, as the first and original contract was held void for want of filing, the court adding (Downing v. Graves, supra): "They were not filed, and neither add to nor detract from the original as a valid contract": Greig v. Riordan, 99 Cal. 316. 31S, 321, 33 Pac. Rep. 913. Section 1183 does not expressly reauire the filing of alterations of the original contract, and where the contract was abandoned, and there was a cessation of work for more than thirty days, which con- stituted a statutory completion of the building (see §§ 326 et seq., ante), for the purpose of setting the time running within which claims of lien inust be filed, for all purposes of claiming a lien, it was held that a subsequent original contract entered into with another original contractor was as disconnected from the first original contract as if it had been for the construction of a different building: Johnson v. La Grave, 102 Cal. 324. 326, 36 Pac. Rep. 651. AVashington. Where the material-man delivered a quantity of brick at the ruling price in the market, and when the price fell he threw off fifty cents a thousand, it was held that "this was a mere modification of the contract, and not a different one": Fairhaven L. Co. V. Jordan, 5 Wash. 729, 734, 32 Pac. Rep. 729. " Howe V. Schmidt (Cal. Sup.), 90 Pac. Rep. 1056 (dictum). » Kerr's Cyc. Code Civ. Proc., § 1183. " Kerr's Cyc. Code Civ. Proc, § 1184. " Previously, and under the amendment of 1885 to § 1183, Kerr's Cyc. Code Civ. Proc, the penalty for failure to comply substantially with § 1184 was to render the contract or alteration wholly void. " Southern Cal. L. Co. v, Jones, 133 Cal. 242, 245, 65 Pac. Rep. 378. aoc f 214, ante. 261 EXTINCTION OF CONTRACT. § 329 tractor could not, by an alteration of the contract, impair the liens of sublienors alread}' acquired, without their consent. ^^ § 329. Same. Alterations, how evidenced. Effect. It has been held that a contract for extra work, or for an extension of time,^* under a building contract, is not required to be in writing, if the original contract was not required to be writ- ten. ^^ A substantial performance of the contract, according to the terms and conditions agreed upon, is a condition precedent to the contractor's right to maintain an action to foreclose a lien, but a contract in writing may be altered by a contract in writing, or by an executed oral agreement, '^ I'mler act of 18«:i. § 10 of which simply provided, as § 1184 now does, that payments made prior to the time when they fell due were of no effect against the claimants under the original contractor, and the act contained no provision as above set forth as to the contract. And it was said in Davis v. Living-ston, 29 Cal. 283, 291: "It is assumed in the theory of the act that tradesmen, before furnishing- materials to the contractor, and laborers, before entering his service, will inform themselves as to whether a written contract has been made, and if so, then that they will, by inspection or otherwise, ascertain its provisions; and if they conclude to deal with the con- tractor, the one supplying him with materials, and the other with labor, they are presumed to do so on the faith of the original con- tract to which they have thus had access. And it follows that no agreement subsequently made between the principal parties, unless seasonably disclosed to the workmen and material-men, can be set up to their disadvantage." And. under the same act, it was held that a change could not be made in the original contract without the consent of subordinate lien claimants, or timely notice thereof to them before the interest of the lien-holder attached: Shaver v. Murdock, 36 Cal. 293, 297; White V. Soto, 82 Cal. 654, 657, 23 Pac. Rep. 210 (an action by a con- tractor on a contract providing for alterations). At this time the contract was not required to be filed, and § 1201 was not in force; but it seems to have been then held that, between tlie original con- tractor and the owner, the contract may be changed subsequently by oral agreement: White v. Soto, supra. SiihHequcnt aKreeiiient, whereby the owner, in consideration of a deduction of two hunured dollars made by the contractor from tlie contract price, agreed to perforin certain specified woi-k after the completion of the building, and released the contractor from his con- tract obligation to perform the same, is governed by the same rule of law: Shaver v. Murdock. 36 Cal. 293, 297. " Time tor perforiiiuiico of oontraet (non-statutory) may be subse- quently enlarged by parol: Luckhart v. Ogden, 30 Cal. 547; Wangen- heim v. Graham. 39 Cal. 169. " Barilari v. Ferrea, 59 Cal. 1, 4 (action by contractor, under §§1183 and 1184 of the Code of Civil Procedure, as they stood in 1876; § 1201 was not in force). See KerrN Cyo. Civ. Code, § 1698, and note. § 330 mechanics' liens. 262 and when the contract as modified is thus performed in accordance with such modifications, the failure to finish the building in accordance with the original terms of the eon- tract does not affect the right to foreclose the lien.^" Where owner accepts performance of contract as modi- fied, he cannot refuse to pay the balance of the contract price on the ground that the contract was not performed as originally agreed/^ and where the contract is modified by the parties one day prior to the time when the original contract should have been completed, it necessarily extended the time of performance, and is a waiver of damages for the delay.^^ § 330. Same. Extending credit. There is nothing in sec- tion eleven hundred and ninety ^^ indicating that the credit therein mentioned refers to liens based on direct contract with the owner ; its language makes it applicable to all liens ; and were section twelve hundred and one ^^ construed as in- validating the terms of credit between the owner and the original contractor when the same affected or impaired other liens, still section eleven hundred and ninety would apply to liens other than those inhibited by section twelve hundred and one.^^ 18 Anderson v. Johnston, 120 Cal. 657, 659, 53 Pac. Rep. 264 (non- statutory original contract). Washington. Where the original contract required written evi- dence of alterations of the contract, the owner waives this provision by orally directing alterations which are accepted by the contractor: Crowley v. United States F. & G. Co., 29 W^ash. 268, 69 Pac. Rep. 784 (action on contractor's bond). " Soothe V. Squaw Springs W. Co., 142 Cal. 573, 578, 76 Pac. Rep. 385. Colorado. Where a modification of the original contract is made under a provision therein allowing such modification, the contractor cannot sue for damages resulting from such modification: City and County of Denver v. Hindry (Colo.), 90 Pac. Rep. 1028. 18 McGinley v. Hardy, 18 Cal. 115. w Kerr's Cyc. Code Civ. Proc, § 1190. 2» Kerr's Cyc. Code Civ. Proe.. § 1201, and note. " Hughes Bros. v. Hoover, 3 Cal. App. 145, 84 Pac. Rep. 681. Legislature cannot extinguish the constitutioual mandatory liens at the expiration of the credit extended, or at any other time, but may only legislate with reference to the remedy: Hughes Bros. v. Hoover, 3 Cal. App. 145, 84 Pac. "Rep. 681. See "Waiver," §§ 627 et seq., post; "Impairment," § 284, ante. 263 EXTINCTION OF CONTRACT. § 331 § 331. Same. Payments. This subject has already re- ceived attention under other heads.-- An alteration in the statutory original contract, under which a payment was to be made to the contractor when the building was " completed and accepted by the architect," is not invalid as against lien claimants who have not served notice on the owner under section eleven hundred and eighty-four,-^ when the owner waives the certificate of the architect, the provision of sec- tion twelve hundred and one ^* as to waiving, affecting, or impairing the liens of other persons not applying to an instalment payable at the completion of the building.^^ Rights of owner aud claimant. It was held in an early case that the owner and claimant have the right to rescind an arrangement for the extension of payment of a debt legally and justly entered into under mistake as to tlie application of a law allowing such exten- sion, provided that tlie riglits of no third party intervened, wliich it would be inequitable to disturb: Gamble v. VoU, 15 Cal. 508, 510. =" See §§ 251, 269-280, ante. *3 Kerr's Cyc. Code Civ. Proc, § 1184. " Kerr's Cyc. Code Civ. Proo., § 1201. == Valley L. Co. v. Struck, 146 Cal. 266, 272, 80 Pac. Rep. 405 (but such payment, or waiver of the certificate, not valid as against lien claimants who had given such notice before such payment. Per Shaw, J., Angellotti, J., and Beatty, C J., concurring). See also New- port W. & L. Co. V. Drew, 125 Cal. 585, 58 Pac. Rep. 187. Compare § 10, act of 1862. It seems to have been held that if the payment had been made previous to the time set forth in the contract, whether notice is given or not, the subclaimant would have a lien for the amount so paid, under a contract to which this provision is applicable: Henry v. Wadsworth, 38 Cal. 356, 360 (1862). See Quale V. Moon, 48 Cal. 478, 482. See " Payments," §§ 269-280, ante, and "Notice," §547, post, and see Valley L. Co. v. Struck, 146 Cal. 266, 80 Pac. Rep. 405, concurring opinion of Shaw, J. (p. 272): "Nor does the statute declare, as the main opinion seems tacitly to assume, that it is only payments made prior to tlie times mentioned in the statute itself which cannot be prematurely made without subjecting the owner to liability to pay again." In tlie absence of direction, application of payments is made to the earliest debt in date of maturity, and application should be made pro rata on obligations maturing at the same time, although they may not have been contracted at the same time: Star M. & L. Co. V. Porter (Cal. App., Nov. 24, 1906), 88 Pac. Rep. 497, 498 (under § 1479, subd. 3, Kerr's Cyc. Civ. Code; and see note to same). See also § 254, ante. Colorado. A covenant in the original contract to relieve the owner from any liability for liens is void, under Laws of 1893, p. 316, § 2, requiring the owner to withhold a certain percentage of the con- tract price for thirty-five days after the completion of the con- tract: Aste V. Wilson, 14 Colo. App. 323, 59 Pac. Rep. 846; 3 Mills's Ann. Stats., 1st ed., § 2867a, repealed by 3 Mills's Ann. Stats., 2d ed., § 2887. Utah. See Morrison v. Carey-Lombard L. Co., 9 Utah 70 (1890), 33 Pac. Rep. 238. See Carey-Lombard L. Co. v. Partridge, 10 Utah 322 (1890); Teahen v. Nelson, 6 Utah 363, 23 Pac. Rep. 764 (1888). §§ 332, 333 mechanics' liens. 264 § 332. Same. Power of architect to alter contract. The architect has no power, as such, to change the contract or plans in material respects, of his own volition, unless such power is expressly conferred on him by the contract ; other- wise it would be in his power to give the owner a different building than that he contracted for, and perhaps bankrupt the owner. So he cannot raise the foundation of a building eighteen inches, which involved an increased cost of seven- teen hundred dollars.^® § 333. Novation. Novation is the substitution of a new obligation for an existing one.^' The assignee of the con- tractor takes the assignment with the burdens.^^ Where the original contractor assigns his whole contract before performance, and a new contractor steps into his shoes, with the knowledge and consent of the owner, and assumes all liabilities, without any new contract, he is the only person with whom the owner is to settle, and there is but one contract on the part of the owner ; and the first con- tractor, on final settlement, is entitled to nothing.^^ 26 Gray v. La Societe Frangaise de B. M., 131 Cal. 566, 571, 63 Pac. Rep. 848. See § 125, ante. -' Kerr's Cyc. Civ. Code, § 1530, and note. See also Kerr's Cjc. Civ. Code, §§ 1531-1533, and notes. See, g-enerally, Long Beach School Dist. v. Dodge, 135 Cal. 401, 406, 67 Pac. Rep. 499. Montana. The contractor cannot plead that the owner assumed the debt of a subclaimant, unless it be shown that there was a nova- tion whicli released the contractor: Aldritt v. Panton, 17 Mont. 187, 42 Pac. Rep. 767. Oklalionia. See Ryndak v. Seawell, 13 Okl. 737, 76 Pac. Rep. 170. Oregon. See Gray v. Jones (Oreg-.), 81 Pac. Rep. 813; North Pacific L. Co. V. Spore, 44 Oreg. 462, 75 Pac. Rep. 890. AVasliin^on. See Anderson v. McDonald, 31 Wash. 274, 71 Pac. Rep. 1037; Brodek v. Farnum, 11 W^ash. 565, 40 Pac. Rep. 189; Littell v. Miller, 8 W^ash. 566, 28 Pac. Rep. 1035. 2» Rauer v. Fay, 128 Cal. 523, 526, 61 Pac. Rep. 90. The original contractor cannot sliift the burden of the obligation of a bond to claimants by assigning the contract without the consent of the persons entitled to sue on the bond: French v. Powell, 135 Cal. 636, 642, 68 Pac. Rep. 92. =» Harmon v. San Francisco & S. R. R. Co., 86 Cal. 617. 619, 25 Pac. Rep. 124; Gordon H. Co. v. San Francisco & S. R. R. Co., 86 Cal. 620, 623, 25 Pac. Rep. 125. Compare: Johnson v'. La Grave, 102 Cal. 324, 326, 36 Pac. Rep. 651. See " Assignees," § 588, post. 265 EXTINCTION OF CONTRACT. § 334 Assignment made by original contractor to another person, by way of novation, before the completion of the work, vests in the assignee, prior to the expiration of thirty-five days from the date of the completion of the work, no rights differ- ent from or superior to those of the original contractor; but a mere novation of the original contract for the completion of the structure, by assignment to another contractor, would not affect the right of set-off or counterclaim as against the original contractor. "° Fact that purchaser of estate property, who assumed a debt for work done thereon under a contract with the executor, was not disturbed in possession does not estop him from avoiding a mechanic's lien on the property for such work.^^ § 334. Performance of contract. How considered herein.^- The fact of performance of the contract, or completion of the building, improvement, or structure, may be viewed from two standpoints: 1. As a circumstance giving rise to a right to a lien or cause of action ; and 2. As the point marking the commencement of the period within which claims of lien must be filed under section eleven hundred and eighty- seven.^^ As to the first, it is evident that the completion of the building may be the performance of a part, only, of the work under the contract, and that the completion of the former may not be coincident with the performance of the latter.'^ For convenience, however, these subjects will be considered under one head. The term " completion," in the absence of any statutory qualification or definition, would be construed to mean actual completion, and there would be no room for its con- struction by the court. ^^ But, for the purpose of filing liens =» First Nat. Bank v. Perris Irr. Dist., 107 Cal. 55, 63, 67, 40 Pac. Rep. 45. See Downing v. Graves, 55 Cal. 544, 548. See " Notice," §§ 547 et seq., post. '' San Francisco Pav. Co. v. Fairfield, 134 Cal. 220, 223, 66 Pac. Rep. 255. ^ See §§ 348 et seq., post. s* Kerr's Cyc. Code Civ. Proc., § 1187. ^ Ila^vaii. Completion of contract not synonymous with comple- tion of tlie l)uilding-: Pacific H. Co. v. Lincoln, 12 Hawn. 358, 361. ^ Willamette S. M. L. & M. Co. v. Los Ang-eles College Co., 94 Cal. 229, 237, 29 Pac. Rep. 629: Schallert-Ganahl L. Co. v. Sheldon (Cal.),' 32 Pac. Rep. 235. Colorado. Lichty v. Houston L. Co. (Colo.), 88 Pac. Rep. 846. §§ 335, 336 mechanics' liens. 263 section eleven hundred and eighty-seven ^^ made the occupa- tion, use, or acceptance of a building, etc., or cessation from work for thirty days on an unfinished building, the equiva- lent of completion, irrespective of its actual completion. These subjects will be considered in the following sections. § 335. Same. Original contract valid. AVhere the original contract is valid, sublienors are bound by its terms, and the non-completion or non-performance of the original contract by the original contractor would be followed by a corre- sponding limitation upon the rights of the sublienors, as well as upon those of the original contractor ; "" and proper deductions would be made for trifling imperfections in the work.^^ When the contractor has furnished, through himself or his subcontractors, all the work and materials which he has agreed to furnish, then the building is complete, so far as he and his subclaimants are concerned; and they may then file their respective claims of lien, and each will then become entitled to his proper share of the fund.^® § 336. Same. Original contract void. Where, however, the statutory original contract is void, it has already been shown *° that sublienors have a lien dependent entirely upon the statute, and not upon the contract. But the contract for the erection of a building, although void, is nevertheless admissible, in an action to foreclose the lien, to determine the character of the building to be erected, and thereby to furnish the test by which it can be known when the building is complete, and the court say : " It is sufficiently difficult, at the present time, for lien claimants to determine the true 3« Kerr's Cyc. Code Civ. Proc, § 1187. " See S§ 315-318, ante. 38 See "Liability of Owner," §§ 523 et seq., post; "Cumulative Reme- dies," §§ 638 et seq., post. AVashinRton. See Washington B. Co. v. Land & R. Imp. Co., 12 Wash. 272, 40 Pac, Rep. 982. 39 Roylance v. San Luis Hotel Co., 74 Cal. 273, 278, 20 Pac. Rep. 573, quoting and approving Perry v. Brainard (Cal.), 8 Pac. Rep. 882, 8 West Coast Rep. 4. *° See "Void Contract," §§315 et seq., and Giant Powder Co. v. San Diego F. Co., 97 Cal. 263, 266, 32 Pac. Rep. 172. 267 EXTINCTION OF CONTRACT. § 337 date at whicli they should file their notice [claim] of liens, but if the contract as to the character of the building to be erected is not to furnish a test of completion, then no test is known to the law, and the difficulties in their way would be absolutely insurmountable." '^ And where such contract is void, although it cannot be enforced, the contractor may nevertheless lawfully perform it, and the owner accept such performance, and neither party be guilty of any wrong in so doing. ■*- § 337. Same. Time of performance. Neither at law nor in equity is a contracting party excused from performing his contract within the time agreed upon, further than that, in certain contracts, failure to perform strictly according to the contract, as to time, does not authorize the other party to rescind. He may always, however, recover any damage he has suffered in consequence of such failure. The statement that time is not of the essence of the contract is misleading in any case, and has no force whatever in an action at law. In such cases, to enable one to rescind for a breach on the part of the other party, the failure must be as to a material matter, and depends upon the circumstances of the case. Cases in equity in which this rule is applied are usually for the specific performance of contracts for the purchase of land. Often the failure is merely to pay at a specified date. A slight delay in such a case is usuall}^ of no great impor- tance, and the detriment is easily compensated in interest. An agreement to construct or to render services is quite different. There, as a general rule, time is of importance.*^ Where no time is specified, the contract must be performed within a reasonable time, and this is a question of fact, depending upon the character of the enterprise, the obstacles " Barker v. Doherty, 97 Cal. 10, 12, 31 Pac. Rep. 1117. See Giant Powder Co. v. San Dieg-o F. Co., 78 Cal. 193, 197, 20 Pac. Rep. 419, s. c. 97 Cal. 263, 32 Pac. Rep. 172. Notwithstanding the amendment of 1897 to § 1187, this language seems applicable. See "Filing Claim," §§ 416 et seq., post, and § 315, ante. " Kiessig v. Allspaugh, 91 Cal. 234, 237, 27 Pac. Rep. 662, 13 L. R. A. 418. " American Type Founders' Co. v. Packer, 130 Cal. 459, 462, 62 Pac. Rep. 744. See Harlan v. Stufflebeem, 87 Cal. 508, 25 Pac. Rep. 686. §§ 338, 339 mechanics' liens. 268 to be overcome, the length of time required by diligent anu proper effort to do the work, and the surrounding circum- stances.** § 338. Same. General rule. Conditions. Where the con- tractor is employed under a special contract, he must show that he has completed the contract, and where mutual prom- ises are concurrent and dependent, neither party can demand performance without performance on his part.*^ When the contract provides that the structure shall be built under the direction and to the satisfaction of an agent or superin- tendent of the owner, his acceptance is binding and con- clusive, in the absence of fraud or mistake.**' Where perform- ance is tendered, it must not be subject to any condition to which the party is not entitled.*^ § 339. Same. Excuses for non-performanoe. The con- tractor who has contracted to do so must perform, even where the whole work is consumed by fire, without apparent fault of either party.*® In those cases where the owner re- " See Los Angeles T. Co. v. Wilshire, 135 Cal. 654, 657, 67 Pac. Rep. 1086. AVa.shiugton. Delay in performance as breach of contract: See Beebe v. Redward, 35 Wash. 615, 77 Pac. Rep. 1052. *^ Ernst V. Cummings, 55 Cal. 179, 184; First Nat. Bank v. Ferris Irr. Dist., 107 Cal. 55, 65, 40 Pac. Rep. 45; Pacific R. M. Co. v. English, 118 Cal. 123, 128, 50 Pac. Rep. 383 (subcontractor); Anderson v. John- ston, 120 Cal. 657, 659, 53 Pac. Rep. 264. See Kerr's Cye. Code Civ. Proc., § 1439, and note. Concurrent conditions: See Russ L. & M. Co. v. Muscupiabe L. & W. Co.. 120 Cal. 521, 526, 52 Pac. Rep. 995, 65 Am. St. Rep. 186. Colorado. See McGonigle v. Klein, 6 Colo. App. 306, 40 Pac. Rep. 465; Cochran v. Balfe, 12 Colo. App. 75, 54 Pac. Rep. 399. *" Moore V. Kerr, 65 Cal. 519, 521, 4 Pac. Rep. 542, citing Smith v. Brady, 17 N. Y. 177; Wyckoff v. Meyers, 44 N. Y. 145; Stewart v. Ket- eltas, 36 N. Y. 388; Hudson v. McCartney, 33 Wis. 340. " Jones V. Shuey (Cal., April 3, 1895), 40 Pac. Rep. 17; Bryson v. McCone. 121 Cal. 153, 53 Pac. Rep. 637. An offer to dig anotlier vj-ell, when the one constructed was incom- plete, is not an offer to perform: McPherson v. San Joaquin County (Cal., March 24, 1899), 56 Pac. Rep. 802. Tendering performance ^vitlioiit condition: See Schindler v. Green (Cal. App., Aug. 14, 1905), 82 Pac. Rep. 341, 631; on r-ehearing, 149 Cal. 752. « Clark V. Collier, 100 Cal. 256, 258, 34 Pac. Rep. 677. And see Hogan V. Globe Mut. B. & L. Assoc, 140 Cal. 610, 613, 74 Pac. Rep. 153. See "Construction of Contracts," § 216, ante, and § 353, post. ! 269 EXTINCTION OF CONTRACT. § 339 serves the right to terminate the contract at any stage of the work, the contractor cannot recover damages for not being permitted to complete the same ; *^ but when, entirely through the fault of the owner, the contractor fails to com- plete the contract within the time ^° or in the manner ^' agreed in the contract, the contractor may recover.^- While a prevention of performance may excuse performance,^^ yet As to destruction of building by tire before completion, and effect on right to lien, see 2 Am. & Eng. Ann. Cas. 689-691, 812. A.s to lien on land ^vhere improvement destroyed by tire before completion, see note 2 Am. & Eng. Ann. Cas. 812. Wusbingtou. So where the subcontractors fail to furnish the material to enable the contractor to complete the building in time; or where the delay was owing to the severity of the weather, if, regard- less of this, the work could have been carried on with safety and durability by the exercise of extra means or effort on the part of defendant during the continuance of sucli weather: for "presumably they took this into consideration, and demanded a higher price for their work by reason of these necessary inconveniences, and on account of the extra expenses incident to building in the winter": Reichenbach v. Sage, 13 Wash. 364, 43 Pac. Rep. 354, 52 Am. St. Rep. 15. ■•» McPherson v. San Joaquin County (Cal., March 24, 1899), 56 Pac. Rep. 802. •■" White V. Fresno Nat. Bank, 98 Cal. 166, 167, 32 Pac. Rep. 979. Likewise when the delay is owing to an agreed modification of the contract, the owner cannot set off damages for the delay: McGinley V. Hardy, 18 Cal. 116. "•^ Gray v. Wells, 118 Cal. 11, 15, 50 Pac. Rep. 23, in which it was held that a wall cannot be said to be fully constructed until the cement has had time to set and become hardened, and any act during that time which causes an injury to it may properly be treated as an act done during the process of construction. As to furnishing; of improper material by owner, see McPherson v. San Joaquin County, 56 Pac. Rep. 802. Oregon. Justice v. Elwert, 28 Oreg. 460, 43 Pac. Rep. 649. '^^ Gamache v. South School Dist., 133 Cal. 145, 149, 65 Pac. Rep. 301. See McConnell v. Corona City W. Co., 149 Cal. 60, 63, 85 Pac. Rep. 929. Montana. See Wortman v. Montana Cent. R. Co., 22 Mont. 266, 56 Pac. Rep. 316. Washington. See Cochran v. Yoho, 34 Wash. 238, 75 Pac. Rep. 815 (a subsequent notice to proceed with the work will not relieve the owner from liability for damages occasioned by wrongfully stopping the work). And see Olson v. Snake R. V. R. Co., 22 Wash. 39, 60 Pac. Rep. 156; Anderson v. McDonald, 31 Wash. 274, 71 Pac. Rep. 1037. "3 Griffith v. Happersberger, 86 Cal. 605, 613, 25 Pac. Rep. 137, 487; Adams v. Burbank, 103 Cal. 646, 649, 37 Pac. Rep. 640. Prevention of performance: See McConnell v. Corona City W. Co., 149 Cal. 60, 64, 85 Pac. Rep. 929; Cook v. Columbia O. A. & R. Co., 144 Cal. 670, 675, 78 Pac. Rep. 287. Injunction preventing performance is not an excuse for non- performance, within § 1511 of the Code of Civil Procedure; Sample v. Fresno F. & I. Co., 129 Cal. 222, 61 Pac. Rep. 1085. See "General Obligations of Original Contractor," §§64, 65, ante; "Obligations of Owner," §§ 523 et seq., post. § 339 mechanics' liens. 270 a direction, authorized by the contract, that the force of men be reduced,^* or the non-payment of an instalment,^^ is not such prevention. In order to make payment a condition precedent, a clause must be inserted in the contract to that effect.^** Such failure to make payments is a substantial breach of the contract, entitling the contractor to rescind and sue upon a quantum meruit.^' But where the contractor has not performed the contract according to its terms when he demands such pay- ment of an instalment, then it is not due, and he is not justified in leaving the work.^^ Colorado. McGonigle v. Klein, 6 Colo. App. 306, 40 Pac. Rep. 465; Cochran v. Balfe, 12 Colo. App. 75, 54 Pac. Rep. 399. Idaho. Prevention: See Spaulding v. Coeur D'Alene R. & N. Co., 5 Idaho 528, 51 Pac. Rep. 408 (plaintiff may recover on quantum meruit). New Mexico. Baca v. Barrier, 2 N. M. 131. »* Cox V. McLaughlin, 54 Cal. 605, 607. " Cox V. McLaughlin, 54 Cal. 605, 607, s. c. 76 Cal. 60, 18 Pac. Rep. 100, 9 Am. St. Rep. 164; Porter v. Arrowhead R. Co., 100 Cal. 500, 501, 503, 35 Pac. Rep. 146; Golden Gate L. Co. v. Sahrbacher, 105 Cal. 114, 116, 38 Pac. Rep. 635. See "Obligations of Owner," §§523 et seq., post; "Evidence," §§764 et seq. Application of payments: See Hanson v. Cordano, 96 Cal. 441, 442, 31 Pac. Rep. 457, and also § 254, ante. ••« Cox V. McLaughlin, 63 Cal. 196, 205. See " Complaint," § 676, post. Oregon. See Justice v. Elwert, 28 Oreg. 460, 43 Pac. Rep 649. 5' Porter v. Arrowhead R. Co., 100 Cal. 500, 501, 503, 35 Pac. Rep. 146; Golden Gate L. Co. v. Sahrbacher, 105 Cal. 114, 116, 38 Pac. Rep. 635; San Francisco B. Co. v. Dumbarton L. & I. Co., 119 Cal. 272, 274, 51 Pac. Rep. 335. See "Complaint," §§672 et seq., post. Ob.iection tliat work >va.s not done according to the contract is not a refusal to pay any sum at all, under the contract: Flinn v. Mowry, 131 Cal. 481, 486, 63 Pac. Rep. 724, 1006. Montana. See Wortman v. Montana Cent. R. Co., 22 Mont. 266, 56 Pac. Rep. 316. Oregon. And where the contractor agreed that " he will promptly pay, or cause to be paid, for all material " and labor, a failure to do so is a breach of the contract: Thompson v. Coffman, 15 Oreg. 631, 16 Pac. Rep. 713. Itah. See Bennett v. Shaughnessy, 6 Utah 273, 22 Pac. Rep. 156. Washington. See Anderson v. McDonald, 31 Wash. 274, 71 Pac. Rep. 1037. 58 Golden Gate L. Co. v. Sahrbacher, 105 Cal. 114,-116, 38 Pac. Rep. 635. See Flinn v. Mowry. 131 Cal. 481. 486, 63 Pac. Rep. 724, 1006. Colorado. Nor is he justified in abandoning the contract, simply becau.^e the owner demands the performance of services not stipulated in the contract: Cochran v. Balfe, 12 Colo, App. 75, 54 Pac. Rep. 399. 271 EXTINCTION OF CONTRACT. § 340 The fact that plaintiff continued work under the contract after default of defendant does not atfect the right of the plaintiff to cease work upon continued non-payment; but plaintiff had a right to rely for a reasonable time upon the promises of defendant to pay ; and where there appears to have been no difficulty in determining the amount due under the contract, the fact that the contract did not expressly pro- vide a specific method of determining the amount due at the end of each month for the work already performed is imma- terial; and where the defendant has first broken the con- tract by non-payment of an instalment due thereunder, he cannot insist that the plaintiff shall go on and complete the contract within the time specified; and there is no material error in excluding evidence to the point that plaintiff was informed that it was important to construct a levee within the time specified in the contract.^* § 340. Same. Performance of warranty. The statute *'*' providing that " one who manufactures an article, under an order, for a particular purpose, warrants by the sale that it is reasonably fit for that purpose," does not apply where the manufactured article is furnished under a contract demand- ing that it be made according to specific plans and specifica- tions; for, under such circumstances, the purchaser selects the article, and gets exactly what he orders, and, in the ab- sence of an express warranty, assumes the risk following the =» San Francisco B. Co. V. Dumbarton L. & I. Co., 119 Cal. 272. 274, 51 Pac. Rep. 335. Colorado. Where a building was to be completed witliin a given time, tiie value of the rental between that time and the time of actual completion may be recouped, unless by settlement, intended to be final, such damages were waived, either expres.sly or by implica- tion. Where the owner permits the contractor to continue work after the expiration of the time in which the work was to be completed, he waives the right to rescind on that ground. But by consenting to the extension, he does not thereby waive sucli damages as he may have sustained by reason of the delay: Mclntyre v. Barnes, 4 Colo. 85. See Cary v. Mclntyre, 7 Colo. 177, 2 Pac. Rep. 916. If. during the progress of construction, some portion of the work finished, or partially so, but before the entire completion of tlie building, should become broken, damaged, or be found unsuitable, tlie repairing of the same becomes a part of the work of construction: Cary li. Co. v. McCarty, 10 Colo. App. 200. 50 Pac. Rep. 744. "• See Kerr's Cyc. Civ. Code, § 1770, and note. § 341 mechanics' liens. 272 purchase.®^ But where, notwithstanding the fact that cer- tain specifications are made part of the contract, there is a guaranty of the efficiency', or an express wam-anty of the scheme, as well as an undertaking to do good work in the furnishing of the plant in accordance with the scheme, the rule is otherwise. *'- § 341. Same. " Trifling imperfection." In the last clause of section eleven hundred and eighty-seven,®^ in recognition of the general rule hereafter referred to, it is provided that any trifling imperfection in the work, or in the construction of any building, improvement, or structure, or of the altera- tion, addition to, or repair thereof, shall not be deemed such a lack of completion as to prevent the filing of any lien. Whether an imperfection in the work for which a lien is sought is a trifling one or not, is to be determined from the facts and circumstances of each particular case. No fixed or flexible rule upon the point can be laid down.*^* The term " trifling imperfection," as used in this section of the statute, relates to the question whether or not there has " And so the fact that the size of a drum specified in a contract to construct an elevator proved to be insufficient is immaterial: Ban- croft V. San Francisco T. Co., 120 Cal. 228, 232, 52 Pac. Rep. 496. See '■ Construction of Contract," §§ 216 et seq., ante. Utah. See Utah L. Co. v. James, 25 Utah 434, 71 Pac. Rep. 986 (caveat emptor). ''- Adhere a material-inau agreed to furnish an iee plant, built according^ to certain speoification.s, and guaranteed its efficiency, he is liable for its failure to do the work, though the specifications were furnished by the purchaser, and an efficient ice plant could not be constructed by following them: Bryson v. McCone, 121 Cal. 153, 53 Pac. Rep. 637, 639; and see Boothe v. Squaw Springs W. Co., 142 Cal. 573, 577, 76 Pac. Rep. 385. "= Kerr's Cyc. Code Civ. Proc, § 1187. " Scliindler v. Green, 149 Cal. 752, 754, 87 Pac. Rep. 626. Trifling imperfection: Schindler v. Green, 149 Cal. 752, 755, 87 Pac. Rep. 626, reversing, on this point, s. c. (Cal. App., Aug. 14, 1905) 82 Pac. Rep. 341, 631 (windows out of alignment, remedied at a cost of $7.50). The neg-lect to put on a door-knob, which was mislaid, and the rim of a bath-tub, has been lield a trifling imperfection: Joost v. Sullivan, 111 Cal. 286, 292, 43 Pac. Rep. 896. In tlie ca.se of a contract to excavate a cellar, and to erect walls of concrete and steps to the street, which was accepted by the owner as completed, and thereafter a carpenter, employed by the owner, finished a frame in the cellar-door, and plaintiff, at the owner's request, filled a small hole outside tlie cellar, it was held that the lack of this additional work was a trifling imperfection, within the meaning of the section, and that there was an acceptance of the work: Lippert v. Lazar (Cal.), 33 Pac. Rep. 797. 273 EXTINCTION OP CONTRACT. § 341 been an actual completion of the building,"^ and refers to im- perfect or defective performance of the work upon a build- ing Avhich is claimed to have been completed, and not to a case in which the building is admittedly uncompleted, and the workmen are still engaged in constructing substantial portions thereof.*"' It cannot be said as a matter of law that any failure of completion is a trifling imperfection."^ What constitutes a trifling imperfection,"* or whether there has been a completion, or the contract has been substantially Failure to inuke the ridge of the roof tight, or to putty the window g-Iass on the outside, is a defective performance of the work, rather than the failure to complete the building-, and was considered a "trifling imperfection": Santa Monica L. & M. Co. v. Hege, 119 Cal. 376, 379, 51 Pac. Rep. 555. Where some small place.*) in the house are not properly grained and finished, and the cost of properly finishing- them would be not more than five dollars, this was held a substantial performance of the contract: Harlan v. Stufflebeem, 87 Cal. 508, 512, 25 Pac. Rep. 686 (contract price $145). In the case of seven dollar.^' ^vorth of alterations, where the con- tract price is four thousand seven hundred dollars, same rule applies; Santa Clara V. M. & L. Co. v. Williams (Cal.), 31 Pac. Rep. 1128. In this case the contractors did nothing after they delivered their work, and there was no evidence that they did not complete the house according to the directions and designs of the owner, there being no valid statutory original contract. But in Mclntyre v. Trautner, 63 Cal. 429, the owner refused to accept the work from the contractor as perfectly complete, and the owner completed the work, wliich con- sisted in stopping some leaking pipes. Colorado. There may be a substantial performance, notwithstand- ing the amount required to remedy defects and omissions may be quite substantial: Charles v. Hallack L. Co., 22 Colo. 283, 293, 43 Pac. Rep. 548. It is not competent for mechanics, by performing work and trifling alterations, to extend the time within which a lien may be filed: Bur- leigh B. Co. V. Merchant B. & B. Co., 13 Colo. App. 455. 59 Pac. Rep. S3. Hawaii. See Pacific H. Co. v. Lincoln, 12 Hawn. 358, 359. Washington. So an expenditure of thirty dollars on a bridge cost- ing sixteen thousand dollars : Washington Bridge Co. v. L. & R. Im- provement Co., 12 Wash. 272, 40 Pac. Rep. 982. «^ Marble L. Co. v. Lordsburg Hotel Co., 96 Cal. 332, 336, 31 Pac. Rep. 164; Bianchi v. Hughes, 124 Cal. 24, 56 Pac. Rep. 610; Schindler v. Green, 149 Cal. 752, 754, 87 Pac. Rep. 626. "" Schindler v. Green, 149 Cal. 752, 754, 87 Pac. Rep. 626; Santa Monica L. & M. Co. v. Hege, 119 Cal. 376, 51 Pac. Rep. 555. " Willamette S. M. Co. v. Kremer, 94 Cal. 205, 208, 29 Pac. Rep. 633. See " Questions of Fact," § 827, post. ^ Willamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 229, 238; Marble L. Co. v. Lordsburg Hotel Co., 96 Cal. 332, 334; Willamette S. M. Co. v. Kremer, 94 Cal. 205, 208; Coss v. MacDonougp, 111 Cal. 662, 666; Santa Monica L. & M. Co. v. Hege, 119 Cal. 376, 378 (there was no test by which it could be determined when the building was completed). Colorado. Lichly v. Houston L. Co. (Colo.), 88 Pac. Rep. 846. Mech. Liens — 18 § 342 mechanics' liens. 274 performed,®^ and the time of completion,"" are all questions of fact, to be determined from the facts and circumstances of each case. § 342. Same. Substantial performance generally required. The performance of a contract need not in all cases be literal and exact, in order to entitle a party to compensation there- for. Especially is this the rule in contracts for labor by me- chanics or artisans, where the quality' of the work done, or the manner of its performance, is the sole matter in dispute, and is to be decided upon conflicting testimony. In contracts for the construction or repair of buildings, a substantial per- formance of his contract is sufficient to entitle the contractor to compensation for the work done by him under the con- tract, as well as to permit the filing of a claim of lien there- for.^^ If there has been no wilful departure from its provis- os Harlan v. Stufflebeem, 87 Cal. 508, 512; Marble L. Co. v. Lordsburg Hotel Co., 96 Cal. 332, 334; Willamette S. M. L. & M. Co. v. Los Ang-eles College Co., 94 Cal. 229, 237. ■» Willamette S. M. Co. v. Kremer, 94 Cal. 205, 208; Schallert-Gana.hl L. Co. V. Sheldon (Cal.), 32 Pac. Rep. 235. " Harlan v. Stufflebeem, 87 Cal. 508, 511, 25 Pac. Rep. 686; Schindler V. Green, 149 Cal. 752, 754, 87 Pac. Rep. 626; Griffith v. Happersberger, 86 Cal. 605, 613, 25 Pac. Rep. 137, 487; Stimson M. Co. v. Riley (Cal.), 42 Pac. Rep. 1072; Willamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 229, 238, 29 Pac. Rep. 629; West Coast L. Co. v. Apfleld, 86 Cal. 335, 342, 24 Pac. Rep. 993. And see Golden Gate L. Co. v. Sahr- bacher, 105 Cal. 114, 116, 38 Pac. -Rep. 635; Marchant v. Hayes, 117 Cal. 669, 672, 49 Pac. Rep. 840. See "Filing of Claim," §§ 416 et seq., post. Substantial performance: See Los Angeles T. Co. v. Wilshire, 135 Cal. 654, 659, 67 Pac. Rep. 1086. Substantial non-performance as to laying floor: Laidlaw v. Marye, 133 Cal. 170, 179, 65 Pac. Rep. 391. Substantial compliance to recover: Laidlaw v. Marye, 133 Cal. 170, 176. 65 Pac. Rep. 391. Montana. Substantial performance as condition to payment: Rid- dell V. Peck-Williamson H. & V. Co., 27 Mont. 44, 69 Pac. Rep. 241. Failure to plaster a portion of a house and build a flue, held a fail- ure to substantially perform contract: Franklin v. Schultz, 23 Mont. 165, 57 Pac. Rep. 1037. Nevada. Tlie original contract and modifications thereof must be completely performed, in order to start the time running within which to file claims of lien: Salt Lake H. Co. v. Chainman M. & E. Co.. 137 Fed. Rep. 632. »w Mexico. A substantial completion of the building is a comple- tion thereof, within the meaning of Comp. Laws 1897. § 2221, for the purpose of filing claims of lien: Genest v. Las Vegas M. B. Assoc, 11 N. M. 251, 67 Pac. Rep. '743 (seven or eight hours' work remaining to be doo';). 275 EXTINCTIOX OF COXTRxVCT. § 342 ions, and no omission of any of its essential parts, and the contractor has in good faith performed all of its substantive terms,^- he will not be held to have forfeited his right to a recovery by reason of trivial defects or imperfections in the work performed. If the omission or imperfection is so slight that it cannot be regarded as an integral or substantive part of the original contract, and the other party can be compen- sated therefor by a recoupment for damages, the contractor does not lose his right of action. This rule is peculiarly ap- plicable in a case where the other party has received the benefit of what has been done, and is enjoying the fruits of the work;'^^ especially where the failure of the plaintiff to comply with the strict letter of the contract was caused by the acts and consent of the parties.'^* Oregon. Substantial performance of the contract sufficient: Har- risburg- L. Co. v. Washburn, 29 Oreg. 150, 44 Pac. Rep. 390. AVashinston. Washington B. Co. v. L. & R. Improvement Co., 12 Wash. 272, 40 Pac. Rep. 982. See Craig v. Geddis, 4 Wash. 390, 30 Pac. Rep. 396; Sclimidt v. City Of North Yakima, 12 Wa*sh. 121, 40 Pac. Rep. 790. Trifling imperfeetjon: See Windham v. Independent Tel. Co., 35 Wash. 166, 76 Pac. Rep. 936 (falling within the principle of Schmidt v. North Yakima, 12 Wash. 121, 40 Pac. Rep. 790). See § 341, ante. Siib.HtantiuI failure to perform, neoe.ssary; otherwise contractor not liable: Anderson v. Harper, 30 Wash. 378, 70 Pac. Rep. 965. *' Sui>stantial performance" and '^ substantial failure" to perform: See Anderson v. Harper, 30 Wash. 378, 70 Pac. Rep. 96o. '- Good faith In performance: See Schindler v. Green (Cal. App., Aug. 14, 1905), 82 Pac. Rep. 631, s. c. on rehearing, 149 Cal. 752, 82 Pac. Rep. 341. " Schindler v. Green, 149 Cal. 752, 754, 755, 87 Pac. Rep. 626; Harlan V. Stufflebeem, 87 Cal. 508, 511, 25 Pac. Rep. 686. See Valley L. Co. v. Struck, 146 Cal. 266, 273, 80 Pac. Rep. 405. Substantial performance: See, generally, note 30 Am. St. Rep. 616. Oregon. After a structure has been completed, inspected, and approved by the owner or his lawful agent, any latent defects existing in the material or workmanship that may be cured by the builder upon the request of the owner are to be considered as repairs, and not omissions in the performance of the original contract, and the time for filing the lien will begin to run from the date when the building- was accepted, though the rule may be otherwise where work required by the contract has been omitted. And when work has been apparently completed, but not accepted, the restoration by the builder of a part to which objection has been made is considered as a sub- stitution under the *erms of the original agreement, and not a repair, and therefore the statute begins to run only from tlie final completion of the imperfectly performed obligation: Avery v. Butler, 30 Oreg. 287, 47 Pac. Rep. 706. " Griffith v. Happersberger, 86 Cal. 605, 612, 25 Pac. Rep. 137, 487. Colorado. Waiver of strict performance: See Flick v. Hahn's Peak & E. R. C. & P. M. Co.. 16 Colo. App. 485, 66 Pac. Rep. 453. § 343 mechanics' liens. 276 § 343. Same. General principles.'^ The owner has a right to have built the structure he contracted for, and not an- other. Even his caprices, if expressed in the contract, must be complied with, even though they would not have added to the value of the structure, or may have lessened its value. It is only when this plan has been substantially embodied in the work that the court can have an occasion to estimate the de- ficiencies. The authorities are very clear upon this point. There is a variety of cases to which the so-called modern equitable rule has been applied. One is where the contractor fails to complete the structure. In such case it is said, if the contractor has done or furnished anything of which the owner avails himself, such owner may be made to pay the Montana. Intention to waive defects, when not inferred: See Franklin v. Schultz, 23 Mont. 165, 57 Pac. Rep. 1037. Oregon. Or waived by them: Harrisburg- L. Co. v. Washburn, 29 Oreg. 150, 44 Pac. Rep. 390. '^ IHiistrations of failure to substantially perform. W^here, under a contract to repair an old house and build an addition, there was evi- dence that no part of the second coat of paiiit upon the new part, as required by the contract, had been put on; that the work-bench of the carpenters, and the paint for the second coat, were in the new part at the time of a fire, which consumed the building; that two of the doors were not hung, no lock or fastenings on the front door, and no fastenings on the windows; that the house had not been delivered to the owner, and the lower court found that the contractor had never finished the building or completed the house, and that the owner had never accepted it, — it cannot be said that the building was substan- tially completed: Clark v. Collier, 100 Cal. 256, 259, 34 Pac. Rep. 677. As to destruction of building- by tire, before completion, see 2 Am. & Eng. Ann. Cas. 689-691, 812. AVhere contractor used old, second-hand brick of poor quality, instead of good, hard brick, and laid them in five and six courses instead of seven, and constructed only six piers of brick laid in three courses instead of twelve piers, and used second-class lumber instead of the best kind, as agreed, it was held not to be a substantial compli- ance with the contract: Perry v. Quackenbush, 105 Cal. 299, 303, 38 Pac. Rep. 740. Failure to use designated lath and rustic. A contract calling for laths one and a quarter inches wide is not satisfied by laths one and a half inches wide, and where a contract calls for No. 1 rustic and the best quality of joist and studding, and the contractor uses second quality of joist and studding and No. 2 rustic, there is a substantial breach of the contract: Golden Gate L. Co. v. Sahrbacher, 105 Cal. 114, 117, 38 Pac. Rep. 635. Where neither the doors were hung, the plumbiug finished, the closets and bathroom completed, the ventilators placed, nor the mold- ing put in. and a number of other things were unfinished, such things are not trifling imperfections, and are necessary to be done to com- plete the building-: Schallert-Ganahl L. Co. v. Sheldon (Cal.), 32 Pac. Rep. 235 (under amendment of 1887 to §'1187, Code Civ. Proc). The 277 EXTINCTION OF CONTRACT. § 343 value of it, after deducting all damages resulting from the failure of the contractor. In such case it has been sometimes said that it does not matter why the contractor failed to per- form. Another case is where there is a defect which can be remedied. Here the contractor may recover the contract price, less damages caused by the failure, including cost of supplying the deficiency. Another ease is where the con- tractor has endeavored in good faith to perform his contract, and has substantially performed, but there are some unim- portant defects, arising through accident or inadvertence. Here, the defects not being such as defeat or materially change the design embodied in the contract, the contractor may recover, less damages occasioned by the failure. In such case there must be a substantial performance of every mate- rial covenant in the contract, and the failure must not have resulted from design or bad faith, and whether these facts exist is a matter to be determined by the jury. Since the rule as to what shall constitute performance has become so indefinite, it is an important consideration, in de- termining whether there has been a substantial performance, that the deviations are so slight that they might have been made by one who was honestly endeavoring to comply with his contract. Good faith, however, on the part of the con- tractor is not enough. The owner has a right to a structure in all essential particulars such as he has contracted for; and to authorize a court or jury to find that there has been a sub- contract probably called for this work, but it was considered void, and the court say: " It may be quite true that it would not take long- to do what remained to be done, and that what remained to be done was trifling-, compared with the whole work of building- an elegant resi- dence; but it must be obvious that if the erection and completion of the house had been provided for in a valid contract, the contractor could not have successfully insisted on the day the lien was filed that lie had complied with his contract, within the meaning of any of tlie qualifications or exceptions contained in the statute." And the court further said: "It is immaterial whether the oxidized hardware and tiling were in the written contract attempted to be made with S. & Son, or whether they were to be furnished by the owner or the con- tractor. If the use of these materials was necessary to the completion of the building, the purchase of them by tlie one party or the other could not affect the question whether the building was completed." Colorado. The lack of completion of a mantel and fireplace re- quired by the contract cannot be considered a trifling imperfection or omission from the work: Lichty v. Houston L. Co. (Colo.), 88 Pac. Rep 846. §§ 344, 345 mechanics' liens. 278 stantial performance, it must be found that he has such a structure. The court cannot say that anything is immaterial which the parties have made material by their contract. One has the right to determine for himself what he deems a good foundation, or what materials he desires to be used, and if he contracts for them, neither the contractor nor the court has the right to compel him to accept something else, which may be shown by the witnesses to be just as good or even better. No precise rule can or ought to be laid down upon this sub- ject, but whenever such a case arises, courts and juries should see to it that the design of the owner shall not be de- feated in any important respect. '^^ • § 344. Same. Slight difference in value. Although the difference between the value of the house as actually' con- structed and as it should have been constructed is only a small amount, this fact alone does not show that the contract has been substantially performed.''" Thus the marble steps by which the basement of a building was to be reached was held to be a substantial portion of the building, rather than a trivial imperfection, even though its cost was small in com- parison with the cost of the entire building.^* § 345. Same. Conveniences. The conveniences called for in plans and specifications may be a material part of the building, and when so provided for, the building is not com- pleted until the demands of the plans and specifications in this regard have been legally satisfied. So where an elevator is called for by the original plans and specifications, and the contract is let for its construction at the same time that other " Substantially in the language of the court in Perry v. Quacken- bush, 105 Cal. 299, 307, 310, 38 Pac. Rep. 740. See Marehant v. Hayes, 117 Cal. 669, 672, 49 Pac. Rep. 480. See Carpenter v. Ibbetson, 1 cal. App. 272, 274, 81 Pac. Rep. 1114. Idaho. Prospective profits as damages: See Harris v. Farls-Kesl Const. Co., 89 Pac. Rep. 760. Washington. Measure of damages on prevention by owner: See Chase v. Smith, 35 T\'ash. 631, 77 Pac. Rep. 1069; and also Anderson v. Hilker, 38 Wash. 632. 80 Pac. Rep. 848. " Perry v. Quackenbush, 105 Cal. 299, 307, 38 Pac. Rep. 740; Bianchl V. Hughes, 124 Cal. 24, 56 Pac. Rep. 610. " Bianchi v. Hughes, 124 Cal. 24, 56 Pac Rep. 610. ■ 279 EXTINCTION OF CONTRACT. §§ 346-348 contracts are let, and it is attached to the building, and forms an integral part thereof, the building is not completed until the elevator is constructed, and the fact that the building might be used without it, and that it is a convenience merely, is immaterial/® § 346. Same. Erection of structure in part only. A building which is erected in part only will be held completed, for the purpose of filing liens, as provided in the statute,^" when it distinctly appears that the original purpose of the owner to erect and build it in part only, or that the owner, having proceeded to erect the house in part, abandoned his design of finishing it.^^ § 347. Same. " Completion " of mining claim. It is evi- dent that work upon a mine is continuous in its nature, and has no definite completion, but may run on for fifty years or more. The statute, therefore, cannot have reference to the work upon a mine as a thing to be completed. To hold other- wise would, in effect, be saying that the legislature was guilty of the absurdity of referring to the completion of a thing which has no necessary completion, but may go on indefinitely.^^ § 348. Statutory equivalents of completion for the pur- pose of filing claims of lien. Independently of the question of actual completion, discussed in the preceding sections, the '9 Coss V. MacDonough, 111 Cal. 662, 666, 44 Pac. Rep. 325. See Schallert-Ganahl L. Co. v. Sheldon (Cal.), 32 Pac. Rep. 235. *» Kerr's Cyc. Code Civ. Proc, § 1187. »i Schwartz v. Knight, 74 Cal. 432, 434, 16 Pac. Rep. 235; Marchant V. Hayes, 120 Cal. 137, 138, 49 Pac. Rep. 840. " California Powder Works v. Blue Tent Consol. H. G. Mines (Cal.). 22 Pac. Rep. 391. Use of material or suspension of work on mine, it seems, is not to be treated as the completion referred to in Kerr's Cyc. Code Civ. Proc, §1187: California Powder Works v. Blue Tent Consol. H. G. Mines, supra. "Tlie liens cannot all date back to the commencement of the work. On a mine the work is always going on, and may have commenced before the laborers were born, and may continue indefinitely": Wil- liams V. Mountaineer G. M. Co., 102 Cal. 134, 139, 34 Pac. Rep. 702, 36 Pac. Rep. 388. See "Nature of Work," S§ ISO et seq., ante. §§349,350 mechanics' liens. 280 statute, ^^^ for certain purposes hereafter considered in detail, provides for certain equivalents of such completion. Such statutory equivalents may be summarized as: 1. Occupation, or use of the objects enumerated; 2. Acceptance thereof as completed; 3. Cessation from labor, (a) upon the contract, or (b) upon the object, for the statutory period. § 349. Same. Statutory provisions. The mechanic's-lien law ^^ provides : " And in all cases the occupation or use of a building, improvement, or structure, by the owner, or his representative, or the acceptance by said owner or his agent, of said building, improvement, or structure, and cessation from labor for thirty days upon any contract or upon any building, improvement, or structure, or the alteration, addi- tion to, or repair thereof, shall be deemed equivalent to a completion thereof for all the purposes of this chapter." ^^ § 350, Same. Occupation and use. Scope and object of statutory provisions. The provision as to use, occupation, and acceptance, mentioned in the preceding section, has ref- erence not only to a dwelling or other house, but to any kind of building or improvement. It seems that when the prop- erty is used and occupied so far as it is capable of being so used and occupied, it is sufficient, within the meaning of the «> Kerr's Cyo. Code Civ. Proc, § 1187. " Kerr's Cyc. Code Civ. Proc., § 1187. *^ Previous to the amendiiient of 1897 making' the provision as to use, occupation, or acceptance applicable " in all cases," the section provided for this rule "in case of contracts"; and under that pro- vision it was held not to apply to void contracts, but only to valid statutory original contracts: Marble L. Co. v. Lordsburg Hotel Co., 96 Cal. 332, 338, 31 Pac. Rep. 164; Willamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 229, 240, 29 Pac. Rep. 629; Giant Powder Co. V. San Diego F. Co., 97 Cal. 263, 265, 32 Pac. Rep. 172. But see Joost V. Sullivan, 111 Cal. 286, 292, 43 Pac. Rep. 896; Giant Powder Co. V. San Diego F. Co., 78 Cal. 193, 195, 20 Pac. Rep. 419. Tliis section, as aiuended in 1887, made such occupation, use, and acceptance "conclusive evidence" of completion: Giant Powder Co. v. San Diego F. Co., 78 Cal. 193, 195, 20 Pac. Rep. 419. Tlie amendment of 1897 makes either of them " equivalent " to com- pletion. See "Evidence," §§792 et seq., post; "Filing Claims," §§416 et seq., post. As to cessation from labor, the amendment of 1897 struck out the word "unfinished" before "contract" and "building," and thus broadened the provision. I 281 EXTINCTION OP CONTRACT. § 351 statute. This provision was enacted in the interest of, and for the better protection of, lien claimants."*" One object of the provision is apparent ; namely, that the owner and the contractor shall not, by a secret agreement between themselves, abandon the original contract before its completion, or dispense with the completion of the building according to its original plan, and thereby, by being able to show that the building has never been in fact completed, pre- vent the laborer and material-man from enforcing their liens. *^ Another reason for the provision is found in the require- ment — which fully protects the owner ■ — that the owner shall retain twenty-five per cent of the contract price until the expiration of thirty-five days, as fixed in the contract, after its completion ; and in order that the thirty days within which persons other than the contractor may file their claims of lien may commence with the thirty-five days, it was pro- vided that his occupancy and use of the building should be conclusive evidence, before the amendment of 1897, of, and thereafter equivalent to, such completion. Such occupancy or use would, moreover, be as notorious a fact as, and be more readily established by the claimant than, the fact of actual completion. ^^ § 351, Same. Character of occupation or use. The occu- pation or use, however, which, under the statute, is to be deemed " equivalent to " completion, under the amendment of 1897, must be open, notorious, and exclusive, and not of such a character as would be consistent with the continuance by the contractor in the completion of his contract, and whether in any particular case there has been such a comple- tion or use must be determined from the facts of the case, as «« Giant Powder Co. v. San Diego F. Co., 88 Cal. 20, 23, 25 Pac. Rep. 976. See "Evidence," S§ 792 et seq., post. " Willamette S. M. L. & M. Co. v. Los Ang-ele.s College Co., 94 Cal. 229. 239, 29 Pac. Rep. 629. »■•* Willamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 229, 239. 29 Pac. Rep. 629. The amendment of 1897 to § 1187, requiring the owner to file a notice of completion, also partially remedied this difficulty. See "Filing Lien," §§416 et seq., post; "Notice of Completion," §§425 et seq., post; " Cessation from Labor," §§ 354 et seq., post. § 352 mechanics' liens. 282 in the ordinary case must be determined the fact of actual completion. The owner must be shown to have acted towards the contractor and in reference to the building in such way as, by necessary implication, to give notice that the building had been accepted by him in satisfaction of the contract.*® The continuance by the contractor in the work of completing his contract, while the building, or a portion thereof, is occu- pied by the owner, or used by him for the purposes for which it was intended, prevents such occupation or use from being regarded as conclusive evidence of completion.®" § 352. Same. Void contract. Since the amendment of section eleven hundred and eighty-seven,^^ above referred to,®2 there is no distinction between valid and void contracts with respect to such occupation, use, and acceptance.®^ And although the statutory original contract may be void, the occupation of the building by the owner furnishes a test of completion of the work as against a claimant of a lien, when not explained, and is the equivalent of completion as against the owner, when necessary to sustain a lien filed upon the strength of the occupancy.®* But the occupation of a struc- ture, under a void contract, is not conclusive upon the ques- tion of completion.®^ "When the statutory original contract was void, even before the amendment of 1897, an acceptance by the owner of the building as finished, under an agreement with the contractor and architect, and the taking possession 89 Willamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 229, 239, 29 Pac. Rep. 629. Acceptance by occupation of tenants: See W^yman v. Hooker, 2 Cal. App. 36, 39, 83 Pac. Rep. 79. AVa.shington. Acceptance by occupancy: See W'indham v. Inde- pendent Tel. Co., 3.5 Wash. 166, 76 Pac. Rep. 936. Payment in full and occupancy of hou.se, held not to be an accept- ance of the work, under the circumstances of the case: Ekstrand v. Barth, 41 Wash. 321, 83 Pac. Rep. 305. »» Willamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 229, 239, 29 Pac. Rep. 629 (dictum); before amendment of 1897. »i Kerr's Cyc. Code Civ. Proc, § 1187. »* See note, § 349, ante. »3 See note, § 349, ante. M Joost V. Sullivan, 111 Cal. 286, 292, 43 Pac. Rep. 896, decided when S 1187 provided that such occupation, use, and acceptance shoud be conclusive evidence against the owner. See note 85, this chapter. »' Stimson M. Co. v. Los" Angeles T. Co., 141 Cal. 30, 32. 74 Pac. Rep. 357. ■ 283 EXTINCTION OF CONTRACT. § 353 thereof, were not conclusive evidence of completion for the purpose of filing liens.^" § 353. Same. Acceptance. Waiver. It has been seen that strict performance may be waived, or excused, inde- pendently of the statute.**^ The owner may w^aive compli- ance with conditions of the contract, such as the acceptance of the building by the architect before payment provided in the contract, and the exhibition of receipted bills and proof of non-existence of liens.^* Where owner consents to abandonment or rescission of the contract by the contractor before its completion, and he takes possession of the work and completes it, he " occupies, uses, and accepts " it, within the meaning of section eleven hundred and eighty-seven,''^^ for the purpose of filing liens.' °° And such acceptance and occupation is such a completion for the purpose of filing liens, whatever may be the actual condi- tion of the structure when work thereon ceased."^ ^ Stimson M. Co. v. Los Angeles T. Co., 141 Cal. 30, 32, 74 Pac. Rep. 357. " See Marchant v. Hayes, 117 Cal. 6.69, 672, 49 Pac. Rep. 840; Perry V. Quackenbush, 105 Cal. 299, 307, 38 Pac. Rep. 740. See § 339, ante. "" Castagnino v. Balletta, 82 Cal. 250, 261, 23 Pac. Rep. 127. «« Kerr's Cyc. Code Civ. Proc, § 1187, and note. 1™ Giant Powder Co. v. San Diego F. Co., 88 Cal. 20, 25, 25 Pac. Rep. 976. See Marble L. Co. v. Lordsburg Hotel Co., 96 Cal. 332, 335. 31 Pac. Rep. 164 (void contract; before amendment of 1897). See § 350, ante. "• Giant Powder Co. v. San Diego F. Co., 78 Cal. 193, 196, 20 Pac. Rep. 419. But as to acceptance by agent being conclusive in absence of fraud or mistake, see Moore v. Kerr, 65 Cal. 519, 4 Pac. Rep. 542. See § 350, ante. AMien all the lumber is used, and only a few feet more are required to complete the work, and the owner informed his laborer, who was working by the day, that there was no more work for him to do, and that he would put in the remainder of the boards in the rear of the house, along the base below the floor, and there was about half a day's work to finish the painting, which was being done by tlie owner, and the laborer was thus discharged when the work was on the verge of full and actual completion, such discharge, under the circumstances, was an acceptance of the work as a completed contract for the erec- tion of the building for the purpose of filing the lien: Ward v. Crane, 118 Cal. 676, 50 Pac. Rep. 839. See Lippert v. Lazar (Cal.), 33 Pac. Rep. 797; Mclntyre v. Trautner, 63 Cal. 429, 430 (before amendment of 1887. where it was held that additional work done at the request of the owner of the building will he held to be a continuation of the work, and done under the same original contract). See '• Extra Work," §§ 243 et seq., ante. § 354 mechanics' liens. 284 § 354. Same. Cessation from labor for thirty days. Stat- utory provision. The statute ^°- provides : " And cessation from labor for thirty days upon any contract or upon any Use by the owner of a temporary structure for the lunning of trains did not, under the circumstances of the case, furnisli any evidence of the acceptance of a bridge as completed, the contract providing for the erection of sucli temporary structure: Stimson M. Co. v. Los Ang-eles T. Co., 141 Cal. 30, 32, 74 Pac. Rep. 357. Acceptance of performance as to construction of ditch: See Gilliam V. Brown, 116 Cal. 454, 48 Pac. Rep. 486. Montana. Mere occupancy of the building- is not a vi^aiver of defects, nor an acceptance, where acceptance is refused, as the owner is always in possession: Franklin v. Schultz, 23 Mont. 165, 57 Pac. Rep. 1037 (suit on express contract). Oregon. Additional work: See Avery v. Butler, 30 Oreg. 287, 47 Pac. Rep. 706. Delivery of keys to owner and his going' into possession, with the agreement that he accepted the building, excepting certain alterations then agreed upon, which the contractor thereafter performed to the satisfaction of the architect, constitute, under the circumstances of the case, an acceptance of the work up to the list of alterations, and when such alterations were completed, it was a full acceptance of the building: Vanderhoof v. Shell, 42 Oreg. 578, 72 Pac. Rep. 126, 128. Utah. The mere acceptance of the building does not preclude the owner from showing that material was not furnished according to the agreement, when the defects were latent and appeared as seasoning progressed: Utah L. Co. v. James, 25 Utah 434, 71 Pac. Rep. 986. ">2 Kerr's Cyc. Code Civ. Proc, § 1187 (as amended Stats. 1897, p. 202). The pi'ovision as to cessation was first inserted in the section by the amendment of 1887, and applied to "any unfinished contract" or "any unfinished building," etc. It had been previously said by the court: " The owner of property on which a building has been commenced cannot deprive the material-man or laborer of his lien by refusing or omitting to finish the building. In Harmon v. Ashmead, 68 Cal. 321, 322, 9 Pac. Rep. 183, the complaint alleged that at the date of the commencement of the action the building had not been completed: that the defendant did not intend to complete it; and that he had notified the plaintiffs to that effect. The lien was decreed. The ques- tion is but incidentally referred to, but was included in the judgment recognizing and enforcing the lien of a material-man, in Germania v. Wagner, 61 Cal. 349. In that case, the building was not completed, 'but work thereon ceased July 16, 1881, and has never been resumed ' ": Schwartz v. Knight, 74 Cal. 432, 434, 16 Pac. Rep. 235, decided De- cember 28, 1887, and relating to work done before the amendment of 1887, which went into effect March 15, 1887. There was no reference to the amendment in the decision. See Marchant v. Hayes, 120 Cal. 137, 138, 49 Pac. Rep. 840, which also does not seem to notice the fact of the amendment, but follows the language of Schwartz v. Knight, supra. See "Abandonment," §§358-360, post. Cessation of worlt for thirty days: See McDonald v. Hayes, 132 Cal. 490. 495, 64 Pac. Rep. 850. Colorado. Cessation of labor on an unfinislied building is equiva- lent to a completion for the purpose of filing claims, under act of 1893, § 3: Burleigh B. Co. v. Merchant B. & B. Co., 13 Colo. App. 455, 59 Pac. Rep. 83, 86. 285 EXTINCTION OF CONTRACT. § 355 building, improvemeut, or structure, or the alteration, addi- tion to, or repair thereof, shall be deemed equivalent to a completion thereof for all the purposes of this chapter." § 355. Same. Scope of provision. The statute makes ces- sation from labor for thirty days upon, 1. Any " contract," ^"^ as well as upon, 2. " Any building, improvement, or struc- ture, or the alteration, addition to, or repair thereof," ^°* — equivalent to the completion thereof, for all who are entitled to liens, as though the building were actually completed. Cessation from work. Running of statute. While the broad language of the section is to the effect that cessation from work for thirty days shall be deemed equivalent to a completion thereof for all the purposes of the chapter on mechanics' liens, it is only a completion for the purpose of setting the time running within which to file claims of lien. It is not a completion of the structure or of the contract, as between the owner and the contractor, so that under a valid contract the owner would be liable to subclaimants as upon the completed contract and for the whole contract price. Such a construction of the law would work a monstrous in- justice to the owner who had in all respects complied with the requirements of the law and of his contract, and who, notwithstanding such compliance, would be at the mercy of a defaulting contractor, who could thus pocket the partial payments specified in the contract, and, without paying for the material purchased and used in earning the instalments paid, enable the material-man who had contracted with him to be paid out of the instalments, to enforce payment from the owner, with whom he had no contractual relation. "3 Johnson v. La Grave, 102 Cal. 324, 326, 36 Pac, Rep. 651; Willam- ette S. M. L. & M. Co. V. Los Angeles College Co., 94 Cal. 229, 238, 29 Pac. Rep. 629. 101 Willamette S. M. L. & M. Co. v. Los Angeles College Co., supra; Reed v. Norton, 90 Cal. 590, 600, 34 Pac. Rep. 333; Kerckhoff-Cuzner M. « Flinn v. Mowry, 131 Cal. 481, 485, 63 Pac. Rep. 724, 1006. 291 EXTINCTION OF CONTRACT. § 360 ment, then it is not due, and he is not justified in leaving tlie work ; and if he leaves the work without cause, it is an aban- donment of the contract, as contemplated by the statute ^^^ providing for the liability of the owner upon abandonment of the valid contract by the contractor.^^^ If the owner has a proper claim for damages for breach of the contract, and the other party insists, as a condition to continuing the work, that the owner shall waive his claim for damages, this is a refusal to perform the contract.^-* But if the owner prevents the contractor from completing his con- tract, he is justified in abandoning it.^^^ The mere conveyance of the property during the pro- gress of the work under the contract does not alone consti- tute an abandonment of the construction of the building by the owner, where it does not appear whether the grantee had or had not completed or abandoned the construction of the building.^^'* "2 Kerr's Cyc. Code Civ. Proc, § 1200. See § 339, ante. "3 Golden Gate L. Co. v. Sahrbacher, 105 Cal. 114, 116, 38 Pac. Rep. 635. See "Liability of Owner," §§523 et seq., post. Idaho. Facts justifying- an abandonment of the contract: See Harris v. Faris-Kesl Const. Co. (Idaho), 89 Pac. Rep. 760, 762. ^ Bryson v. McCone, 121 Cal. 153, 53 Pac. Rep. 637, 638. Oregron. Damages for delay, Sundays: Vanderhoof v. Shell, 42 Oreg. 578, 72 Pac. Rep. 126. ^ Cox V. Western Pac. R. Co., 47 Cal. 87, 89; and see Cox v. McLaughlin, 54 Cal. 605, 606. E^xcuse for non-performance: See, generally, note 18 Am. Dec. 452. As to what constitutes prevention, see § 339, ante. Wasliington. But not where the contractor was compelled by the owner to pay his debts due to other parties: De Mattos v. Jordan, 15 Wash. 378, 46 Pac. Rep. 402. '=« Cohn V. Wright, 89 Cal. 86, 88, 26 Pac. Rep. 643. Wasiiington. After mutual rescission and abandonment of the original contract, the contractor is not obliged to complete the struc- ture at the instance of the vendee of the owner, such vendee knowing the facts: Huetter v. Redhead, 31 Wash. 320, 71 Pac. Rep. 1016. Abundwnnieut of >vorl« on irri;;;ution-ditoli by consent: See Dyer V. Middle Kittitas Irr. Dist., 25 Wash. 80, 64 Pac. Rep. 1009, s. c. 40 Wash. 238, 82 Pac. Rep. 301. § 361 mechanics' liens. 292 CHAPTER XIX. CLAIM OP LIEN. NATURE, NECESSITY, AND PURPOSE. § 361. Resemblance between statutory provisions as to claim of lien. § 362. Nature of claim of lien. § 363. Statutory provision. California. § 364. When claim of lien is necessary. § 365. Purpose of claim of lien. § 366. The necessity of one or more claims of lien. § 367. Same. Persons joining in same claim of lien. § 368. Same. Several objects and pieces of property. § 369. Same. Various items of labor or materials. § 361. Resemblance between statutory provisions as to claim of lien. The legislatures of the various states have adopted different methods of notifying ^ the owner of the claims for material and labor in the construction of the objects enumerated in the statutes, as well as for the per- fecting of the inchoate lien." Claim of lien and notice of claim to owner. Distinction. The claim of lien required to be filed by the California stat- ute ^ must be carefully distinguished from the notice of claim which may be given to the owner under another pro- vision of the statute.* Many of the Western states have followed one or the other of these forms of notice to the owner, while some have enacted procedures substantially different. " Claim of lien " and " notice to owner " will be * See, generally, as to death of owner before filinc: claim, note 43 Am. St. Rep. 7 78. Notice to owner as a condition of lien: See note 11 L. R. A. 740. Notice to be tiled, and operation thereof: See note 13 L. R. A. 704. Idaho. See, generaHy, under an early statute, Creer v. Cache V. C. Co., 4 Idaho 2S0, 38 Pac. Rep. 653, 95 Am. St. Rep. 63. Utah. PubHshing- notice under § 1391, Rev. Stats. 1898: See ElweU v. Morrow, 28 Utah 278, 78 Pac. Rep. 605; Sandberg v. Victor G. & S. M. Co., 24 Utah 1, 66 Pac. Rep. 360. - Colorado. Before the claim of lien is filed, the lien is inchoate: Sprague I. Co. v. Mouat L. & I. Co., 14 Colo. App. 107, 60 Pac. Rep. 179, 182. See S§ 9, 23, ante. 3 Kerr's Cyc. Code Civ. Proc, § 1187. * Kerr's Cyc. Code Civ. Proc., § 1184. See Jewell v. McKay, 82 Cal. 144, 149, 23 Pac. Rep. 139. See "Notice to Owner," §§ 547 et seq., post. 293 CLAIM OF LIEN. § 362 here used to indicate the two forms of instruments, above mentioned, under the California statute. It is intended in this chapter to discuss the former only. The latter will be considered hereafter in detail.' § 362. Nature of claim of lien. A " lien " " is a charge imposed in some mode, other than by a transfer in trust upon specific property, by which it is made security for the performance of an act.' A mechanic's lien comes into exist- ence by the filing of a proper " claim." The " claim of lien " is not the " lien " ; neither is it the enforcement of the lien, nor any step in its enforcement ; but the filing thereof is merely one of the acts to be performed in perfecting the lien.® If the claimant does not file a proper claim of lien 5 See "Liability of Owner as Fixed by Notice," §§ 547 et seq., post. ' The " notice of lien " and " lien " are often spoken of in tlie decis- ions as if they were synonymous with the "claim of lien": See, for instance. Cox v. Western Pac. R. Co., 44 Cal. 18, 28; Silvester v. Coe Q. M. Co., SO Cal. .510, 511, 22 Pac. Rep. 217. And see also Kerr's Cye. Pol. Code, § 4236, subd. 16, and note. ' See Kerr's Cyc. Civ. Code, §§ 2872 et seq., and notes; Kerr's Cyc. Code Civ. Proc., § 1180, and note. See § 19, ante. s Corbett v. Chambers, 109 Cal. 178, 183, 41 Pac. Rep. 873; All Lotiif V. Harwood, 140 Cal. 500, 504, 74 Pac. Rep. 41. See Hughes v. Hoover, 3 Cal. App. 145, 84 Pac. Rep. 681, 683; Boscow v. Patton, 136 Cal. 90. 68 Pac. Rep. 490. Colorado. See Schradsky v. Dunklee, 9 Colo. App. 394, 398, 48 Pac. Rep. 6(5 6. Hawaii. Lucas v. Redward, 9 Hawn. 23, 25. Montana. See McGlauflin v. Wormser, 28 JNIont. 177, 72 Pac. Rep. 428 (under §2131, Code Civ. Proc). New Mexico. See Mountain E. Co. v. Miles, 9 N. M. 512, 56 Pac. Rep. 284, 286. Nevada. But see Sabin v. Connor, 21 Fed. Cas. 124. Oregon. See Horn v. United States M. Co. (Oreg.), 81 Pac. Rep. 1009. But see notice and statement under act of 1874: Whittier v. Blakely, 13 Oreg-. 546, 11 Pac. Rep. 305; and see In re Coulter. 2 Sawy. C. C. 42, 6 Fed. Cas., p. 637, 6 N. B. R. 64, 1 Am. L. T. Rep. Bankr. 257, 3 Chic. Leg. News, 377, 4 Am. Law T. 131. Utali. The doctrine as construed under the act of 1890 in this state differs from that generally held, the court saying, " Every person claiming a lien must file the statement as provided in this section (§ 10). This is indispensable to preserve the lien provided for in the preceding sections. ... It is evident that the filing of the statement does not create the lien, . . . but simply holds it or keeps it in force for the time of one year, ... so as to give the claimant an opportu- nity to enforce the same by process of law": Morrison v. Carey-Lom- bard Co., 9 Utah 70, 33 Pac. Rep. 238. But see Garland v. Bear Lake & R. W. & Irr. Co., 9 Utah 350, 359, 34 Pac. Rep. 368. See § 364, post. § 363 mechanics' liens. 294 within the time and in the manner prescribed by law, he has no lien upon the property, whatever other remedy he may have.® § 363. Statutory provision. California. The California statute provides :^° " [A] Every original contractor, [1] at any time after the completion of his contract, and [2] until the expiration of sixty days after the filing of said notice of completion or notice of cessation of labor by the owner,^^ and [B] every person, save the original contractor, claiming the benefit of this chapter, [1] at any time after the completion of any building, improvement, or structure, or of the altera- tion, addition to, or repair thereof, and [2] until the expira- tion of thirty days after the filing of said notice of comple- tion or cessation, by said owner, or [3] within thirty days after the performance of any labor in a mining claim, must The statement of intention to perform labor or furnish material under § 12 of the same act is permissive: Morrison v. Carey-Lombard Co., supra. Washington. Laws 1893, p. 33, §5 (Ballinger's Ann. Codes, §5904): "No lien created by this act shall exist, . . . unless within ninety days ... a claim for such lien shall be filed," etc.: See Nason v. North- western M. & P. Co., 17 Wash. 142, 146, 49 Pac. Rep. 235; Pacific Mfg. Co. V. Brown, 8 Wash. 347, 36 Pac. Rep. 273; United States S. L. & B. Co. V. Jones, 9 Wash. 434, 440, 37 Pac. Rep. 666; Johnston v. Harring- ton, 5 Wash. 73, 79, 31 Pac. Rep. 316; Gates v. Brown, 1 Wash. 470, 474,' 25 Pac. Rep. 914; Cowie v. Ahrenstedt, 1 Wash. 416, 418, 25 Pac. Rep. 458. 9 Southern Cal. L. Co. v. Schmitt, 74 Cal. 625, 627, 16 Pac. Rep. 516; Santa Clara V. M. & L. Co. v. Williams (Cal.), 31 Pac. Rep. 1128. See Boscow V. Patton, 136 Cal. 90, 68 Pac. Rep. 490. See "Cumulative Remedies," §638. As to right to enforce nieehanlc's lien and pursue other remedy, see note 3 Am. & Eng. Ann. Cas. 1100. Colorado. See Schradsky v. Dunklee, 9 Colo. App. 394, 48 Pac. Rep. 666. Under act of 1889, the failure to file the statement within the time prescribed did not defeat the lien, except as against innocent pur- chasers and encumbrancers: Marean v. Stanley, 5 Colo. App. 335. Oregon. Hughes v. Lansing, 34 Oreg. 118, 55 Pac. Rep. 95, 96, 75 Am. St. Rep. 574; Rankin v. Malarkey, 23 Oreg. 593, 32 Pac. Rep. 620, 34 Id. 816. Utah. But see Morrison v. Carey-Lombard Co., 9 Utah 70. 33 Pac. Rep. 238 (1890). AVashington. United States S. L. & B. Co. v. Jones,. 9 Wash. 434. 440, 37 Pac. Rep. 666; Alexander v. Hemrich, 4 Wash. 727, 31 Pac. Rep. 21. i» Kerr's Cyc. Code Civ. Proc, § 1187, as amended Stats. 1897, p. 202. For other statutes, see Table of Correlated Statutes, at front of volume. 1' Notice of completion; See §§ 425 et seq., post. 295 CLAIM OF LIEN. § 364 file for record with the county recorder of the county, or city and county, in which such property or some part thereof is situated, a claim containing [a] a statement of his demand, [b] after deducting all just credits and offsets, [c] with the name of the owner or reputed owner, if known, and [d] also the name of the })ersou by whom he was employed, or to whom he furnished the materials, [e] with a statement of the terms, time given, and conditions of his contract, and [f] also a description of the property to be charged with the lien, sufficient for identification, which claim must be [g] verified by the oath of himself or of some other person; provided, however, that in any event [4] all claims of lien must be filed within ninety days after the completion of said building, improvement, or structure, or the alteration, addi- tion to, or repair thereof." § 364. When claim of lien is necessary. A claim of lien is required to perfect the lien in the case of work upon struc- tures ^- mentioned in section eleven hundred and eighty- three,^^ and materials furnished to be used in the construc- tion, alteration, addition to, and repair thereof; ^* and, l)y the express language of section eleven hundred and eighty- seven,^^ in the case of " the performance of any labor in a mining claim." ^^ In case of furnishing materials for work in mining claim, it has been generally assumed that it is necessary to file a claim of lien, apparently under the broad provision of sec- '= See "Nature of Labor," §§130 et seq., ante; "Object," §§166 et secj., ante. " Kerr's Cyc. Code Civ. Proe., § 1183, and note. " See §§ 144 et seq., ante. '5 Kerr'M Cyc. Code Civ. Proc, § 1187. Utah. Under act of 1890, it seems that the claim of lien is not necessary "to create" the lien, but simply to "preserve" it; the lien being created when the labor is performed or materials are furnished, although it is also said that upon the filing of the statement provided for in § 11 the lien is "completed." This language is not very clear or satisfactory; iVIorrison v. Carey-Lombard Co., 9 Utah 70, 33 Pac. Rep. 238. But see Garland v. Bear Lake & R. W. & Irr. Co., 9 Utah 350, 359, 34 Pac. Rep. 368. See § 362, ante. VVaHiiingtun. The fact that the contract is made with the owner does not any the less require a compliance with the statute as to filing the claim; United States S. L. & Bldg. Co. v. Jones, 9 Wash. 434, 440, 37 Pac. Rep. 666. " Kerr's Cyc. Code Civ. Proc, § 1187. § 364 mechanics' liens. 296 tion eleven hundred and eighty-seven," that " every person, save the original contractor, claiming the benefit of this chapter . . . must file for record ... a claim," etc., al- though there is no express provision in the statute for the time within which such claim must be filed for record. Although the statute ^^ quoted in the preceding section apparently refers to the objects enumerated in the first clause of section eleven hundred and eighty-three,^^ namely, " structures," and in the second clause, namely, " in a min- ing claim," or in or upon any real property worked as a minCj^" yet it is thought that the requirement as to filing the claim of lien is applicable in the case of work under section eleven hundred and ninety-one,^^ relating to work on streets, etc., in incorporated cities.^^ Fact that the statutory original contract is verbal, and therefore void, does not relieve the claimant from compliance with the provisions of section eleven hundred and eighty- seven,^^ the court saying, " That section declares that ' every person ' seeking the benefits of that chapter must state in his claim of lien all of the facts therein specified." -* Necessity for claim of lien. It has therefore been held, either expressly or impliedly, that in all cases mentioned in the chapter relating to liens of mechanics and others upon real property,^^ it is necessary, in order that a lien may be >' See "Time of Filing Claim," §422, post; California P. W. v. Blue Tent Consol. H. G. Mines Co. tCal.), 22 Pac. Rep. 391. The question as to whether or not it was necessary to file a claim at all was not raised, but the issue as to the time of filing seems impliedly to cover the point. "■ Kerr's Cyc. Code Civ. Proc, § 1187. "• Kerr's Cyc. Code Civ. Proc., § 1183. ='» See § 184, ante. " Kerr's Cyc. Code Civ. Proc, § 1191. 2= Beatty v. Mills, 113 Cal. 312, 313, 45 Pac. Rep. 468 (in this case it was assumed that a claim of lien must be filed, and the issue was as to the time of filing); Warren v. Hopkins, 110 Cal. 506, 42 Pac. Rep. 986. See •• Time of Filing Claim," § 422, post. Oreji;on. All the provisions of §§ 3669-3682, Hill's Ann. Laws, are applicable to grading, etc., under § 3676, Id.: Pilz v. Killingsworth, 20 Oreg. 432, 26 Pac. Rep. 305. 23 Kerr's Cyc. Code Civ. Proc, § 1187. -^ Madera F. & T. Co. v. Kendall, 120 Cal. 182, 184, 52 Pac. Rep. 304, 65 Am. St. Rep. 117, citing Davis v. MacDonough, 109 Cal. 547, 42 Pac. Rep. 450. ^ Kerr's Cyc. Code Civ. Proc, §§ 1183-1203a. 297 CLAIM OF LIEN. § 365 perfected, to file such a claim ; but no claim of lien need be filed to perfect a cause of action in personam against an employer after giving the notice to him provided by section eleven hundred and eighty-four ^^ to intercept moneys in his hands due the contractor.-^ § 365. Purpose of claim of lien. Under previous statutes of California,-* notice to the owner, similar to that pro- vided for in section eleven hundred and eighty-four ^^ was required. The main object of giving personal notice by the claim to the owner of the building is to affect him with notice of the lien, and afford him an opportunity to protect himself against the same in his dealings with the original contractor and others ; ^^ and this is likewise one of the objects of filing the claim of lien for record, to give notice of the lien to those interested, or about to become interested, in the property upon which it is claimed, and for the protec- tion of those who may deal with the owner of the property.^^ Purpose of such record is also to inform owner, in case of contractor and laborers rendering services under such 28 Kerr's Cye. Code Civ. Proc., § 1184. 2' Kerr's Cye. Code Civ. Proc, § 1184; First Nat. Bank v. Perris Irr. Dlst., 107 Cal. 55, 65, 40 Pac. Rep. 45; Bates v. Santa Barbara Co., 90 Cal. 543, 547, 27 Pac. Rep. 438. No eliiiin was required to be filed uuder tlie act of Marcli 31, 1891, giving a lien to certain laborers of corporations: Keener v. Eagle Lake L. & L Co., 110 Cal. 627. 631, 43 Pac. Rep. 14; Kuschel v. Hunter (Cal.), 50 Pac. Rep. 397. This act was, however, declared unconstitu- tional. See §§ 28 et seq., ante. Colorado. Statement essential to perfect lien under act of 1883, as amended in 1889: Cary Hardware Co. v. McCarty, 10 Colo. App. 200, 210, 50 Pac. Rep. 744. =» Stats. 1850, p. 212, §2; Stats. 1855, p. 157, §3; Stats. 1858, p. 225; Stats. 1862, p. 385, § 5. -* Kerr's Cye. Code Civ. Proc., § 1184. See " Notice to Owner," §§ 547 et seq., post. . ■■<> Corbett v. Chambers, 109 Cal. 178, 181, 182, 41 Pac. Rep. 873. Utah. Filing claim before furnishing labor or material, simply an additional safeguard, under § 1338 of the Revised Statutes: Morrison V. Carey-Lombard U Co., 9 Utah 70, 33 Pac. Rep. 238 (1890). Washington. Seattle L. Co. v. Sweeney, 33 Wash. 691, 74 Pac. Rep. 1001. Wyoming. Wyman v. Quayle, 9 Wyo. 326, 63 Pac. Rep. 988. " Corbett v. Chambers, 109 Cal. 178, 181, 182, 41 Pac. Rep. 873; Union L. Co. v. Simon (Cal. App. and Sup.), 89 Pac. Rep. 1077, 1078, 1081. Montana. Western I. W. v. Montana P. & P. Co., 30 Mont. 550, 77 Pac. Rep. 413, 416. Oregon. Osborn v. Logus, 28 Oreg. 302, 310, 37 Pac. Rep. 456, 38 Id. 190. 42 Id. 997. § 366 mechanics' liens. 298 contract, as to the extent and nature of the lien-hoiders' claims, to facilitate investigation as to their merits ; ^- and the scheme as a whole, as well as its details, indicates the purpose of the law-makers, that the rights of subcontractors and subclaimants shall be ascertained by reference to the claim of lien as filed, or shall rest upon proof of contracts between them and the original contractor, such as accord with the terms and conditions set forth in such claims of liens. ^^ Its purpose is to inform claimants also, it seems, as to their probable rights in the property, and to enable them to learn the names of persons who have claims, so as to make them parties to the suit to foreclose the lien, in order that the rights of all persons interested in the fund may be deter- mined.^* Independently of any such purpose, however, it is essen- tial to the perfection of the lien.^^ § 366. The necessity of one or more claims of lien. "Whether, in a particular instance, it is necessary to file one or more claims of lien depends upon the statute, and upon the circumstances of the case. The fact that a number of claimants have demands against the same property, or that the work or material has been done or furnished for several structures, or that they consist of a variety of items, is a Washington. And also to give notice of all the facts upon which it is based: McHugh v. Slack, 11 Wash. 370, 372, 39 Pac. Rep. 674. See Washington R. P. Co. v. Johnson, 10 Wash. 445, 447, 39 Pac. Rep. 115; Whittier v. Stetson & P. M. Co., 6 Wash. 190, 195, 33 Pac. Rep. 393, 36 Am. St. Rep. 149. AVyoming. TV^yman v. Quayle, 9 Wyo. 326, 63 Pac. Rep. 988. 32 Wagner v. Hansen, 103 Cal. 104, 107, 37 Pac. Rep. 195; Santa Monica L. & M. Co. v. Hege, 119 Cal. 376, 381, 51 Pac. Rep. 555; McGinty v. Morgan, 122 Cal. 103, 54 Pac. Rep. 392. Montana. Richards v. Lewisohn, 19 Mont. 128, 131, 47 Pac. Rep. 645. Utah. Morrison v. Willard, 17 Utah 306, 53 Pac. Rep. 832, 70 Am. St. Rep. 784. W'a.shinston. Collins v. Snoke, 9 Wash. 566, 570, 38 Pac. Rep. IGl. See United States S. L. & B. Co. v. Jones, 9 Wash. 434, 440, 37 Pac. Rep. 666. 35 Goss V. Strelltz, 54 Cal. 640, 643. Nevada. Lonkey v. Wells, 16 Nev. 271. Ftah. Morrison M. & Co. v. Willard. 17 Utah 306. 53 Pac. Rep. 832, 70 Am. St. Rep. 784. " See "Filing Claim," S§ 416 et seq., poSt; "Parties Plaintiff," S§ 659 et seq.. post. ^ See § 362, ante. 299 CLAIM OF LIEN. § 367 matter affecting the determination of the question. A stat- ute may allow a lien on two or more pieces of land, and may permit of two or more descriptions in the claim of lien, and allow a number of claimants to join as parties plaintiff in the same action; but it is evident that these latter matters are not necessarily- involved in the question as to how many claims of lien must be filed in the particular instance to sat- isfy the statute.^'' § 367. Same. Persons joining in same claim of lien. With reference to the persons ^' who may join in one claim of lien, as distinguished from the enforcement of several liens in a joint action to foreclose the same, under provisions of the statute,^^ it is to be observed that the question has not been decided in California.^" A separate claim of lien is not required because of a change of ownership, nor because of mortgages executed by a new owner to the former owners.*" "* See " Two or iMore Descr-iptions," § 406, post; " Parties Plaintiff," §§ 659 et seq.; "Territorial Extent of Lien," §§ 438 et seq., post. Oregon. Where separate contracts were made by a subcontractor with the original contractor for the construction of two different houses, the claimant was held justified in filing- separate claims of lien: Smith v. Wilcox, 44 Oreg. 323, 74 Pac. Rep. 70S, 75 Id. 710. As to lieu!« where contract involves construction of buildings on separate lots, see note 2 Ain. & Bng. Ann. Cas. 685-6S7. ^' See "Parties Plaintiff," §§ 659 et seq., post; "Partners," § 44, ante. ^' Kerr's Cyc. Code Civ. Proc, § 1195, and note. " Kerr's Cyc. Code Civ. Proc, § 1187, which provides for the filing Of such claims, seeins to indicate the filing of separate claims by several claimants; but see par. "Washington," infra, this note. Nevada. Under Stats. 1871, p. 123, it was held that there was no provision for filing a joint claim, where there was no community of interest; Skyrme v. Occidental M. & M. Co., 8 Nev. 219. But it did not prevent the subsequent filing of valid individual claims; Id. Washington. Any number of claimants may join in the same claim (under § 5904, Ballinger's Ann. Codes): Hopkins v. Jamieson-Dixon M. Co.. 11 Wash. 308, 316, 39 Pac. Rep. 815. • Under an earlier statute, which contained a provision similar to § 1195, Kerr's Cyc. Code Civ. Proc, allowing claimants to join as plain- tiffs in the same action, it was said that if they could do this, there was no reason wliy they might not as well join in a claim of lien, as expense was thereby saved, where tlie character of the claims is the same and the same property is being proceeded against, each claim being stated separately; although it has been lield by some courts that the right to join in a claim of lien must come from the statute: Chevret v. Mechanics' M. & L. Co., 4 Wash. 721, 31 Pac. Rep. 24. " Ah Louis V. Harwood, 140 Cal. 500, 504, 74 Pac. Rep. 41. As to priorities between mechanics' liens and mortgages, see note 7 Am. & Eng. Ann. Cas. 624. See §§ 166 et seq., ante. § 368 mechanics' liens. 300 § 368. Same. Several objects and pieces of property. With reference to the property, and object upon which the work is done,*^ one claim may be filed against two buildings erected at the same time and under one contract.*^ Materials used elsewhere than in improvement on which lien claimed. Where an unspecified and indeterminable portion of the materials mentioned in the claim of lien was furnished to the owner for property other than that against which the claim is filed, and was used thereon, which prop- erty was not involved in the suit, and these items cannot be " Right to file a niecliauic's lien against several buildings: See note 17 L. R. A. 314; also 2 Am. & Eng. Ann. Cas. 947. « Booth V. Pendola, 88 Gal. 36, 40, 25 Pac. Rep. 1101, 24 Id. 714. See " Two Descriptions," § 406, post; "Extent of Lien," §§ 438 et seq., post. As to separate buildings on non-contiguous lots, see 2 Am. & Eng. Ann. Cas. 685. Colorado. Small v. Foley, 8 Colo. App. 435, 440, 47 Pac. Rep. 64. Montana. See Smallhouse v. Kentucky & M. G. & S. M. Co., 2 Mont. 443. Occasional repairs, if subsequently made, cannot be added to the woi-K performed in the erection of a building months before, so as to render the whole work one continuous performance, for which a single lien can be claimed within the statutory time after the last repairs: Davis v. Alvord, 94 U. S. 445, 44S, bk. 24 L. ed. 28b. See Alvord V. Hendrie, 2 Mont. 115. Oregon. Willamette S. M. L. & M. Co. v. Shea, 24 Oreg. 40, 32 Pac. Rep. 759 (the test being the entirety of the contract, although the statute — Hill's Code, §§3669, 3670, 3673 — uses the words "building" and "land" in the singular, — a well-considered case); but it is other- wise where the contract is not entire and the structures are not on the same tract of land (Id.): The Dalles L. & M. Co. v. W^asco W. M. Co.. 3 Oreg. 527; Kezartee v. Marks, 15 Oreg. 529, 16 Pac. Rep. 407. The first case reverses the reasoning of the case last cited. See also Willamette Falls T. & M. Co. v. Remick, 1 Oreg. 169, 170. See note 2 Am. & Eng. Ann. Cas. 685. Separate claims were upheld under separate contracts for the con- struction of two houses, under the circumstances of the case: Smitli v. Wilcox, 44 Oreg. 323, 74 Pac. Rep. 708, 75 Pac. Rep. 710. Utah. Provided that the claim designates the amount due on each building: Eccles L. Co. v. Martin, 87 Pac. Rep. 713, 718. But see " Priorities Inter Sese," §§ 504 et seq., post. Washington. Seattle L. Co. v. Sweeney, 33 Wash. 691, 74 Pac. Rep. 1001 (under Ballinger's Ann. Codes and Stats., § 5907). Washington. And this may be done without specifying the par- ticular house for which the materials were furnished, where they were used indiscriminately, there being no intervening rights: Wheeler v. Ralph, 4 Wash. 617, 629, 30 Pac. Rep. 709. See Merchant v. Humeston, 2 Wash. Ter. 433, 7 Pac. Rep. 903; Sullivan v. Treen. 13 Wash. 261, 43 Pac. Rep. 38; and see § 406, post. But see Heald v. Hodder, 5 Wash. 677, 32 Pac. Rep. 728; and Powell v. Nolan, 27 Wash. 318, 67 Pac. Rep. 712, 720 (the claim showing the amount due on each house). 301 CLAIM OP LIEN. § 369 segregated from the general aggregate, the claim is fatally defective.*^ But a claim for materials was held not objection- able because it included items for materials used in building an adjacent sidewalk, which, under the circumstances of the case, was considered a part of the building." § 369. Same. Various items of labor or materials. As to the items of labor, neither the contractor nor a subcontractor can, from time to time, as the work progresses, file successive claims of lien for work done under an entire contract for the different items of labor or material; since in such case but one lien can be acquired." So where a section of a rail- road is graded under an entire contract, the contractor is entitled to one lien to be filed upon the whole work, and he cannot foreclose a lien filed before the completion of the work on a portion of the road, because he was prevented from completing the contract.^*' Material-men should not file separate claims for materials furnished under different contracts for a structure; all the materials furnished should be included in one claim.'*^ " McGlain v. Hutton, 131 CaL 132, 141, 61 Pac. Rep. 273, 63 Id. 182, 622. « McGlain v. Hutton, 131 Cal. 132, 136, 63 Pac. Rep. 182, modifying s. c. 61 Pac. Rep. 273. « Cox V. Western Pac. R. Co., 44 Cal. 18, 28; Silvester v. Coe Q. M. Co. 80 Cal. 510, 512, 22 Pac. Rep. 217; Pacific R. M. Co. v. Bear V. Irr. Co., 120 Cal. 94, 98, 52 Pac. Rep. 136, 65 Am. St. Rep. 158. Oregon. See Willamette S. M. L. & M. Co. v. Shea, 24 Oreg. 40 32 Pac. Rep. 759. 4« Cox V. Western Pac. R. Co., 47 Cal. 87, 89. As to employment in mine by tlie month, see Maloiie v. Big Flat G. M. Co., 76 Cal. 578, 586, 18 Pac. Rep. 772. See "Time of Filing." § 422, post. As to application o£ mechanics' liens to railroads, see 7 Am. & Eng. Ann. Cas. 269-272. Nevada. Capron v. Strout, 11 Nev. 304; Skyrme v. Occidental M. & M. Co., 8 Nev. 219. " •" Pacific Mut. L. Ins. Co. v. Fisher, 106 Cal. 224, 236, 39 Pac. Rep. 758. .Montana. But where a party performs labor for another, in a case where he would be entitled to a lien for one part of his labor, and not for the remainder, he may properly charge for his labor under two different accounts: Christnot v. Montana G. & S. M. Co., 1 Mont. 44. See note 2 Am. & Eng. Ann. Cas. 689. § 370 mechanics' liens. 302 CHAPTER XX. CLAIM OF LIEN (CONTINUED). CONTENTS OP CLAIM. § 370. General statement as to contents of claim of lien. § 371. Construction of claims. General principles. i 372. Same. General rule for determination of sufficiency of claim. § 373. Same. What generally required. § 374. Same. Unnecessary statements. § 375. Statement of demand, after deducting credits and offsets. S 376. Same. Object of provision as to demand. § 377. Same. Commingling lienable and non-lienable items. § 378. Same. Demands against two or more buildings. § 379. Names required to be stated in claim. In general. § 380. Same. Name of owner or reputed owner. § 381. Same. Employer. Purchaser. § 382. Same. Under void statutory original contract. § 383. Same. Inferential statements. § 384. Same. " Causing " improvement. § 385. Same. Name of agent. § 386. Same. Two or more employers or purchasers. § 387. Terms, time given, and conditions of contract. In general. § 388. Same. Object and construction of provision. § 389. Same. General rules. § 390. Same. Showing contractual indebtedness. § 391. Same. Setting out terms of original contract. § 392. Same. Reference to other papers. § 393. Same. Express and implied agreement as to price. § 394. Same. Items of account. § 395. Same. Nature of labor. § 396. Same. Dates. § 397. Same. " Time given." § 398. Same. " Cash." § 399. Description of property. In general. § 400. Same. Bona fide purchasers. § 401. Same. Object of provision. § 402. Same. General rule. § 403. Same. Special applications. False calls. § 404. Same. Property identified by name or exclusive character. § 405. Same. Description as including too much or too little. § 406. Same. Two or more descriptions. Statutory provision. § 407. Same. .Application of provision as to demands against sepa- rate buildings. 303 CONTEXTS OF CLAIM OF LIEN. § 370 § 408. Claim of charge. § 409. Signature. § 410. Verification. § 411. Uncertainty in claim. § 412. Mistake and error in claim. § 413. Same. Unnecessary statements. § 414. Same. Other illustrations. § 415. Amendment of claim. § 370. General statement as to contents of claim of lien. The claim of lieu must coutaiu a correct statemeut of the facts required by the statute/ and unless the claim is so stated, no lien can be enforced.^ The California statute ^ merely defines the classes which are entitled to the liens therein provided for, and does not purport to prescribe the contents of the claim to a lien which is to be filed. What > General statutory re«iuireiiients held sufficient: Alaska. See Jorgensen v. Sheldon, 2 Alas. 607, 609 (under Code, §266). Idaho. See Robertson v. Moore, 10 Idaho 115, 77 Pac. Rep. 218 (under Sess. Laws 1899, p. 148, § 6). 3ie\v Mexico. See Pearce v. Albright, 76 Pac. Rep. 286. Oklahoma. See Ferguson v. Stephenson-Brown L>. Co., 14 Okl. 148, 77 Pac. Rep. 184. Utah. See Culmer v. Caine, 22 Utah 216, 61 Pac. Rep. 1008 (under Sess. Laws 1890, ch. xxx). Washington. See Fitch v. Applegate, 24 Wash. 25, 31, 64 Pac. Rep. 147 (on saw-mills, etc., under act of March 6, 1897). 2 Santa Monica L. & M. Co. v. Hege, 119 Cal. 376, 380, 51 Pac. Rep. 555; Madera F. & T. Co. v. Kendall, 120 Cal. 182, 184, 52 Pac. Rep. 304, 65 Am. St. Rep. 117. See •■ Variance," §§ 835 et seq., post. New Mexico. " No particular form of statement is required. All that is necessary is that the language used in the statement shall convey and express in an intelligent manner the meaning and intent of the statute": Ford v. Springer L. Assoc, 8 N. M. 37, 50, 41 Pac. Rep. 541; Minor v. Marshall, 6 N. M. 194, 199, 27 Pac. Rep. 481. Oregon. Williams v. Toledo C. Co., 25 Greg. 426, 36 Pac. Rep. 159, 42 Am. St. Rep. 799. Whatever the statute makes necessary to the existence of the lien must be complied with, in order to obtain the benefit of its pro- visions. The court cannot, by construction, dispense with any of the requirements of the statute; and one who claims the benefit of its provisions must show a clear compliance with tlie terms of the statute: Gordon v. Deal, 23 Oreg. 153, 31 Pac. Rep. 287, citing Pilz v. Killingsworth, 20 Oreg. 432, 26 Pac. Rep. 305; Rankin v. Malarkey, 23 Oreg. 593, 32 Pac. Rep. 620, 34 Id. 816. Utah. Morrison v. Willard, 17 Utah 306, 53 Pac. Rep. 832, 70 Am. St. Rep. 784. Washington. McHugh v. Slack, 11 Wash. 370, 372, 39 Pac. Rep. 674. > Kerr's Cyc. Code Civ. Proc, § 1183. § 370 mechanics' liens. 304 the claim must contain is prescribed by another section of the code,* and nothing is required to be stated which is not set forth in the provisions of the statute as to such claim of lien.^ Such claims are often made out on a blank form by the claimant, or some friend or person not versed in the law, and are surrounded with sufficient difficulties and obstacles by- requiring that the statute be substantially complied with, without imposing terms and conditions not required by the statute/' Statement of claim need not contain all the facts. It is not required, therefore, that the claim shall contain a statement of all the facts essential to establish the lien ; '^ whether, for * Kerr's Cye. Code Civ. Proc., § 1187. 5 Jewell V. McKay, 82 Cal. 144, 146, 150, 23 Pac. Rep. 139; Corbett v. Chambers, 109 Cal. 178, 180, 41 Pac. Rep. 873; Slight v. Patton, 96 Cal. 384, 386, 31 Pac. Rep. 248. See §§ 362 et seq., ante. Twofold character of claim to lien. It is said in Union L. Co. v. Simon (Cal. App.), 89 Pac. Rep. 1077, 1078, that claim has a twofold character. " It must contain a statement of the facts which the statute prescribes for the creation of the lien," and it must contain a description of the property to be charged with the lien. This statement is certainly not in line with the authorities. Colorado. The claim must contain all that the law requires, but it need not contain more: Sprague I. Co. v. Mouat L. & I. Co., 14 Colo. App. 107, 60 Pac. Rep. 179, 181. New Mexico. See Post v. Miles, 7 N. M. 317, 325, 34 Pac. Rep. 586 Oregon. Allen v. Elwert, 29 Oreg. 428, 44 Pac. Rep. 823, 48 Id. 54 (under Hill's Code, § 3669). See Osborn v. Logus, 28 Oreg. 302, 319, 38 Pac. Rep. 190, 42 Id. 997; Hughes v. Lansing, 34 Oreg. 118, 55 Pac. Rep. 95, 96, 75 Am. St. Rep. 574. When claim contains all facts required by statute, the question as to whether the claimant's demand will in fact support the lien is a matter of allegation and proof: Allen v. Elwert, 29 Oreg. 428, 44 Pac. Rep. 823, 42 Id. 997 (under Hill's Code, § 3669). Utah. Brubaker v. Bennett, 19 Utah 401, 57 Pac. Rep. 170. Washington. But see McHugh v. Slack, 11 Wash. 370, 372, 39 Pac. Rep. 674. " Castagnetto v. Coppertown M. & S. Co., 146 Cal. 329, 332, 80 Pac. Rep. 74. ' Corbett v. Chambers, 109 Cal. 178, 183, 41 Pac. Rep. 873; Castag- netto V. Coppertown M. & S. Co., 146 Cal. 329, 332, 80 Pac. Rep. 74; Ah Louis V. Harwood, 140 Cal. 500, 504, 74 Pac. Rep. 41. Washington. Contra: See Heald v. Hodder, 5 Wash. 677, 32 Pac. Rep. 728 (wliich held, under the statute then in force, that the claim should set forth sufficient to show prima facie that the lien can be enforced, and to enable a searcher of titles to ascertain therefrom whether or not the facts exist which will warrant the enforcement of the lien); Johnston v. Harrington, 5 Wash. 73, 80, 31 Pac. Rep. 316 (where it was held to be necessary to state the time of furnisning the last materials; and the statement in the notice of lien, that "the 305 CONTENTS OF CLAIM OF LIEN. § 371 instance, the facts being truly stated, as required by the statute, the person in possession of the property or the person by whom the laborer was employed had authority to bind the owner, as agent, is a matter for allegation and proof at the trial.^ Contents of notice to owner, allowed by the statute," are not necessarily those required in the claim of lien which is to be filed with the recorder/" § 371. Construction of claims. General principles. It is intended here to consider only the general principles of the construction of claims of lien, leaving specific instances of construction to various subheads subsequent.^^ The claim must be construed as a whole, and even the verification will be considered in connection wnth the other matter contained in the claim. ^- Substantial compliance. Liberal construction. A sub- stantial compliance with the statute as to the claim of lien is all that is required.^^ It has been said that the provisions of lien claim is filed within thirty days from the date of ceasing to fur- nish said materials," would alone be sufficient). See also Tacoma L. & Mfg. Co. V. Kennedy, 4 Wash. 305, 30 Pac. Rpe. 79; Warren v. Quade, 3 Wash. 750, 29 Pac. Dep. 827. ■^ Castagnetto v. Coppertown M. & S. Co., 146 Cal. 329, 332, 80 Pac. Rep. 74. » Kerr's Cye. Corte Civ. Proc, § 1184. ^0 Jewell V. McKay, 82 Cal. 144, 149, 23 Pac. Rep. 139. As to contents of notice to owner, under § 1184, Kerr's Cyc. Code Civ. Proc, see "Purpose of Claim," §365, ante; "Notice," §§547 et seq., post. " See Newell v. Brill, 2 Cal. App. 61, 63, 83 Pac. Rep. 76. See also § 29, ante, and § 411, post. Colorado. See Sickman v. W^ollett, 31 Colo. 58, 71 Pac. Rep. 1107. " See Jones v. Kruse, 138 Cal. 613, 617, 72 Pac. Rep. 146; and see Newell V. Brill, 2 Cal. App. 61, 63, S3 Pac. Rep. 76. ^ See § 410, post. AVasliinsfon. The claim must be construed as a whole: Sautter v. McDonald. 12 Wash. 27, 30, 40 Pac. Rep. 418. '3 Castagnetto v. Coppertown M. & S. Co., 146 Cal. 329, 332, 80 Pac. Rep. 74; W^ood v. W^rede, 46 Cal. 637, 638 (employer)-, Hooper v. Flood, 54 Cal. 218, 221 (name of owner or reputed owner, and terms, time given, and conditions of contract); Blackman v. Mariscano, 61 Cal. 638, 640 (terms, time given, and conditions of contract); Tredinnick v. Red Cloud Consol. M. Co.. 72 Cal. 78, 80. 13 Pac. Rep. 152 (terms, time given, and conditions of contract; the court even saying, in this case, that the claim should be liberally construed); W'agner v. Hansen, 103 Cal. 104. 107, 37 Pac. Rep. 195 (terms of contract); Hagman v. W'il- liams, 88 Cal. 143, 151. 25 Pac. Rep. 1111; Russ L. & M. Co. v. Garrett- Mech. Liens — 20 § 371 mechanics' liens. 306 the code relative thereto are to be liberally construed, with a view to effect their objects and to promote justice ; ^* and son, 87 Cal. 589, 595, 25 Pac. Rep. 747; Stimson M. Co. v. Riley (Cal.. Dec. 20, 1895), 42 Pac. Rep. 1072 (terms of contract: payment); Phelps V. Maxwell's Creek G. M. Co., 49 Cal. 336, 339 (names of owner and reputed .owner, and person to whom materials were furnished); Rauer v. Fay, 40 Cal. 361, 42 Pac. Rep. 902. See California P. W. v. Blue Tent Consol. H. G. M. Co. (Cal., Oct. 8, 1889), 22 Pac. Rep. 391 (terms, time given, and conditions of contract); Harmon v. Ashmead, 68 Cal. 321, 324, 9 Pac. Rep. 183. Alaska. Jorgensen Co. v. Sheldon, 2 Alas. 607, 610; Russell v. Hayner, 2 Alas. 702 (dig.), 130 Fed. Rep. 90, 64 C. C. A. 424. Colorado. Cannon v. Williams, 14 Colo. 21, 23 Pac. Rep. 456. Statute must be strictly pursued; and to create the lien, the pro- visions must be specifically and accurately followed: Rice v. Car- michael, 4 Colo. App. 84, 34 Pac. Rep. 1010; Harris v. Harris, 9 Colo. App. 211, 219, 47 Pac. Rep. 841. Montana. McGlauflin v. Wormser, 28 Mont. 177, 72 Pac. Rep. 428 (holding that in so far as the granting of the lien is concerned, the statute is remedial in character, and should be liberally construed, but in so far as the procedure is concerned by which the lien is claimed and enforced, the statute should be strictly followed; but this decis- ion is against the weight of authority). See also Yerrick v. Higgins, 22 Mont. 502, 57 Pac. Rep. 95, 98. Nevada. Maynard v. Ivey, 21 Nev. 241, 245, 29 Pac. Rep. 1090; Mal- ter V. Falcon M. Co., 18 Nev. 209, 2 Pac. Rep. 50; Skyrme v. Occidental M. & M. Co., 8 Nev. 219. New Mexico. Ford v. Springer L. Assoc, 8 N. M. 37, 47, 41 Pac. Rep. 541, affirmed 168 U. S. 513, bk. 42 L. ed. 562, 18 Sup. Ct. Rep. 170; Post V. Miles, 7 N. M. 317, 323, 34 Pac. Rep. 586. Oklahoma. Ferguson v. Stephenson-Brown L. Co., 14 Okl. 148, 77 Pac. Rep. 184. Oregon. Osborn v. Logus, 28 Oreg. 302, 319, 38 Pac. Rep. 190, 42 Pac. Rep. 997; Rankin v. Malarkey, 23 Oreg. 593, 597, 32 Pac. Rep. 620, 34 Pac. Rep. 816; Gordon v. Deal, 23 Oreg. 153, 155, 31 Pac. Rep. 287; Pilz V. Killingsworth, 20 Oreg. 432, 435, 26 Pac. Rep. 305; Allen v. Rowe, 19 Oreg. 188, 190, 23 Pac. Rep. 901; Williams v. Toledo C. Co., 25 Oreg. 426, 431, 36 Pac. Rep. 159, 42 Am. St. Rep. 799. Claim filed must slio>v what. While the act relating to mechanics' liens should be liberally construed, it is essential to the validity of the lien that the claim filed shall show vipon its face a substantial com- pliance with the provisions of the law, and none of the essential requirements of the statute can be dispensed with: Nicolai Bros. Co. v. Van Fridagh, 23 Oreg. 149, 31 Pac. Rep. 288. rtah. Morrison v. Willard, 17 Utah 306, 53 Pac. Rep. 832, 70 Am. St. Rep. 784. " Newell V. Brill, 2 Cal. App. 61, 62, 83 Pac. Rep. 76; Tredinnick v. Red Cloud Consol. G. M. Co., 72 Cal. 78, 80, 13 Pac. Rep. 152. See Kerr's Cyc. Code Civ. Proc., § 4. Compare: §§ 24 et seq., ante. Montana. All that the statute requires is that a person wishing to avail himself of the benefit of it shall honestly state his account: Smith V. Sherman M. Co., 12 Mont. 524, 31 Pac. ftep. 72; Black v. Appolonio, 1 Mont. 342, 346. Nevada. Maynard v. Ivey, 21 Nev. 241, 244, 29 Pac. Rep. 1090; Skyrme v. Occidental M-. & M. Co., 8 Nev. 221; Hunter v. Truckee 307 CQNTENTS OF CLAIM OF LIEN. § 371 substance, rather than form, is to be regarded.^'^ In this connection, the court said : " We are certainly not disposed to defeat the lien by a nice criticism of the language in which the claim is set forth." ^^ Strict construction when. But, on the other hand, the court is not at liberty to upliold a claim of lieu in the face of & total omission to comply with the plain requirements of the act.^' AVhile the rule of substantial compliance above stated is declared for the purpose of effecting a lien, the provision of the statute ^'^ relating to the forfeiture of liens for wilfully false claims, etc., is penal in its character, and must be strictly construed,'" and every reasonable intendment is in- dulged to avoid such penalties.'" There is but one rule for all claimants, it has been held, whether they be intermediate or not, and that rule must be determined in view of all the cases likely to arise under the statute.-^ Lodge, 14 Nev. 24, 28; Lonkey v. Wells, 16 Nev. 271, 274; Malter v. Falcon M. Co., 18 Nev. 212, 2 Pac. Rep. 50. Oregon. See note 1, ante, this section. \Vu.sliington. See Powell v. Nolan, 27 Wash. 318, 67 Pac. Rep. 712, 719. 1^ Castag-netto v. Coppertown M. & S. Co., 146 Cal. 329, 333. 80 Pac. 74; Corbett v. Chambers, 109 Cal. 178, 184, 41 Pac. Rep. 873; McGinty V. Morgan, 122 Cal. 103, 105, 54 Pac. Rep. 392; Castagnetto v. Cop- pertown M. & S. Co., 146 Cal. 329, 334, 80 Pac. Rep. 74; Maconiber v. Bigelow, 126 Cal. 9, 16, 58 Pac. Rep. 312. New Mexico. Hobbs v. Spiegelberg-, 3 N. M. 357, 5 Pac. Rep 529 (1880). " Wood V. Wrede, 46 Cal. 637, 638; Malone v. Big Flat G. M. Co., 76 Cal. 578, 585, 18 Pac. Rep. 772. See Castagnetto v. Coppertown M. & S. Co., 146 Cal 329, 333. 80 Pac. Rep. 74. " Wood V. Wrede, 46 Cal. 637, 638. Nevada. The omissions cannot, in essential particulars, be aided by any averments of the complaint, or by extrinsic evidence: Malter v. Falcon M. Co., 18 Nev. 209, 213, 2 Pac. Rep. 50. 'New Mexico. See Ford v. Springer L. Assoc, 8 N. M. 37, 49, 41 Pac. Rep. 541. • '« Kerr's Cye. Code Civ. Proc, § 1187. '» Schallert-Ganahl L. Co. v. Neal, 91 Cal. 362, 365, 27 Pac. Rep. 743. See "Forfeiture," §§ 632 et seq., post. -" Stimson M. Co. v. Riley (Cal., Dec. 20. 1895), 42 Pac. Rep. 1072. " Wagner v. Hansen, 103 Cal. 104, 108, 37 Pac. Rep. 195; McGinty v. Morgan, 122 Cal. 103, 54 Pac. Rep. 392. But see §§ 28 et seq., and § 42, ante. And see " Contract," §§ 387 et seq., post. WashiiijKton. United States Sav. L. & Bldg. Co. v. Jones, 9 Wash. 434, 440, 37 Pac. Rep. 666. §§ 372, 373 mechanics' liexs. 308 § 372. Same. General rule for determination of suffi- ciency of claim. In order to determine whether a claim of lien is sufficient, it is only necessary to compare its terms with the language of the statute which provides for the claim. The requirements made by the statutes in many other states differ from those required in California, and, as it is only necessary to consider the requirements of the particular act, the value of decisions under different statutes depends upon the relative similarity of the same.^- § 373. Same. What generally required. The claim need not state what is implied by law,^^ although it is thought that conclusions of law may be stated, under certain circum- stances.^* With reference to the fullness of the statements, it has been said: " We cannot think that the statements in a notice [claim] of lien are required to be made with greater full- ness or formality than is necessary in a pleading. We are not prepared to say that as much fullness or formality is re- quired." -° =2 Corbett v. Chambers, 109 Cal. 178, 180, 41 Pac. Rep. 873. Colorado. The statement must contain aU that the law requires it to contain, but it need not contain anything more; and there is no reason, outside of the statute, why the statement should show the time of furnisliing any material, first or last: Mouat L. Co. v. Free- man, 7 Colo. App. 152, 42 Pac. Rep. 1040 (1883, 1889). ^ Jewell V. McKay, 82 Cal. 144. 152, 23 Pac. Rep. 139. See § 374, post. Colorado. See Small v. Foley, 8 Colo. App. 435, 439, 47 Pac. Rep. 64. Washin^on. See Fairhaven L,. Co. v. Jordan, 5 Wash. 729, 734, 32 Pac. Rep. 729 (Gen. Stats., § 1667). ^ In McDonald v. Backus, 45 Cal. 282, 265, it was held that the pro- vision as to " the name of the person by whom he was employed, or to whom he furnished the materials." is intended to be a statement of a fact, and not of a mere conclusion of law; but in Malone v. Big Flat G. M. Co., 76 Cal. 578, 584, 18 Pac. Rep. 772, the court say, in reference to this decision: "Possibly that case was correctly decided. We express no opinion as to it. But we do not think that the broad state- ment as to conclusions of law can be maintained. . . . But we should prefer not to lay down any rule about facts and conclusions of law. And in this connection we may say, as was said in Wood v. Wrede, 46 Cal. 637, 638, that ' we are certainly not disposed to defeat a lien by a nice criticism of the language in which the clairn is set forth.' " AA'ashington. See Collins v. Snoke, 9 Wash. 566,' 570, 38 Pac. Rep. 161. 2-' Jewell V. McKay, 82 Cal. 144, 151, 23 Pac. Rep. 139. Colorado. Branham v. Nye, 9 Colo. App. 19, 47 Pac. Rep. 402. 309 CONTENTS OP CLAIM OF LIEN. § -ST-l Truth of statements. Subject to the limitations as to errors and mistakes hereafter to be stated,-*^ the claim must be true in all essential particulars.-^ Variance. But a variance from the strict requirements of the statute, which is not a substantial one, and which does not injure or prejudice any one, will not invalidate the claim of lien.^^ § 374. Same. Unnecessary statements. Some of the gen- eral principles determining what it is unnecessary to state in the claim of lien are elsewhere considered.-^ Implications of law. Contract. It has been said by the court: "The code does not require the notice [claim] to state implications made by law.^'*' For example, if there was nothing but a request for labor or materials, and a silent compliance with it, we do not think that a statement of the implied promise to pay what the labor or materials were rea- sonably worth would be necessary. . . . Nor do we think that it is necessary to state facts showing a performance of the contract, or other facts necessary to complete the cause of action. For example, in the cases above put, it would not be necessary to state that the labor or materials were in fact furnished as provided by the contract, or that they were reasonably worth the sum claimed. The statute does not require the notice [claim] to state anything subsequent to or outside of the contract." ^^ Knowledge of owner. It is not necessary to state in the claim that the owner of the land had personal or actual 2« See §§ 389, 412 et seq., post. " Wagner v. Hansen, 103 CaL 104, 107, 37 Pac. Rep. 195; Santa Monica L. & M. Co. v. Hege, 119 Cal. 376, 381, 51 Pac. Rep. 555. Utah. Morrison v. Willard, 17 Utah 306, 53 Pac. Rep. 832, 70 Am. St. Rep. 784. ^ See Ward v. Crane, 118 Cal. 676. 50 Pac. Rep. S39. See "Names," §§ 379 et seq., post; "Variances," |§ 835 et seq.. post. =» See §§ 370-373, ante. 30 Jewell V. McKay, 82 Cal. 144, 152, 23 Pac. Rep, 139. See Reed v. Norton, 90 CaL 590, 597. 26 Pac. Rep. 767, 27 Pac. Rep. 426. Oreeon. See Osborn v. Logus, 28 Oreg. 302, 320, 38 Pac. Rep. 190. 42 Id. 997. But see Getty v. Ames. 30 Oreg. 573, 577, 48 Pac. Rep. 355, 60 Am. St. Rep. 835. " See § 373, ante. § 374 mechanics' liens. 310 knowledge that the work was being done, nor anything about the knowledge of the owner.^- Contractual relation with owner. Neither is it necessary to show any contractual or other relation between the owner of the property, or the person named as owner, and the em- ployer or the person to whom the materials were furnished ; ^^ nor whether the latter had authority to bind the owner, or to entitle him to create a lien.^* Other statements. It is not necessary to set forth the title of the employer, nor the relation between the person in pos- session and the owner, which would often be beyond the knowledge of the claimant, and difficult, if not impossible, to ascertain ; ^^ nor the date of the completion of the work or structure ; ^® nor that the claim was filed within thirty days 32 Jewell V. McKay, 82 Cal. 144, 146, 23 Pac. Rep. 1.^9. New Mexico. Springer L. Assoc, v. Ford, 168 U. S. 513, bk. 42 L. ed. 562, 18 Sup. Ct. Rep. 170, citing the California case. Washington. Nor that the owner caused the building to be erected: Seattle L. Co. v. Sweeney, 33 Wash. 691. 74 Pac. Rep. 1001. 33 Corbett v. Chambers, 109 Cal. 178, 183, 41 Pac. Rep. 873; Davies- Henderson L. Co. v. Gottschalk, 81 Cal. 641, 646, 22 Pac. Rep. 860; Cas- tagnetto v. Coppertown M. & S. Co., 146 Cal. 329, 332. 80 Pac. Rep. 74. See §§ 390, 391, post. Xew Mexico. Post v. Miles, 7 N. M. 317, 34 Pac. Rep. 586; Springer L. Assoc. V. Ford. 168 U. S. 513, bk. 42 L. ed. 562, 18 Sup. Ct. Rep. 170. Oregon. Osborn v. Logus, 28 Oreg. 302, 320, 38 Pac. Rep. 190, 42 Id. 997, overruling Rankin v. Malarkey, 23 Oreg. 593, 32 Pac. Rep. 620, 34 Id. 816; Curtis v. Sestanovich, 26 Oreg. 107, 37 Pac. Rep. 67; Willam- ette S. M. L. & M. Co. V. McL,eod, 27 Oreg. 272, 40 Pac. Rep. 93. Utah. Nor the conditions of the contract between the subcontractor and the original contractor; nor that the several contracts shall be separately stated: Culmer v. Caine, 22 Utah 216, 61 Pac. Rep. 1008, 1009 (under §§ 10, 15, 17, ch. xxx. Laws 1890). VVasUington. Seattle L. Co. v. Sweeney, 33 Wash. 691, 74 Pac. Rep. 1001 (under 2 Ballinger's Ann. Codes and Stats, § 5904, which pre- scribed a form of claim, and a line of authorities under preceding statutes, no longer being authority). See Young v. Borzone, 26 Wash. 4, 66 Pac. Rep. 135, 421. I'nder act o£ 1893, it was no longer necessary to set forth the terms of the contract: Greene v. Finnell, 22 Wash. 186, 60 Pac. Rep. 144. ^ Castagnetto v. Coppertown M. & S. Co., 146 Cal. 329, 332, 80 Pac. Rep. 74; Davies-Henderson L. Co. v. Gottschalk, 81 Cal. 641, 646, 22 Pac. Rep. 860. Oregon. Osborn v. Logus, 28 Oreg. 302, 320, 38 Pac. Rep. 190, 42 Id. 997. It is a matter of pleading and proof at the trial: Osborn v. Logus, supra. 35 Castagnetto v. Coppertown M. & S. Co., 146 Cal. 329, 332, 80 Pac. Rep. 74. 3« Slight V. Patton, 96 Cal. 384, 387, 31 Pac. Rep. 248. Oregon. Curtis v. Sestanovich, 26 Oreg, 107, 37 Pac. Rep. 67, fol- lowing Slight V. Patton, supra. II 311 CONTENTS OF CLAIM OF LIEN. § 374 from its completion ; ""' nor that the building has been com- pleted ; 2« nor, it seems, the date of the contract ; ■''■' nor any time when the contract was made, or when any transaction took place between the parties; " nor the time of payment, or time agreed for the completion of the contract, when none is expressly fixed ; " nor that the labor was done or materials furnished for the particular property;*^ nor that the mate- rials were to be used,*^ or were actually used, in the build- ing." Neither is it necessary to state in the claim that the work done under section eleven hundred and ninety-one of 3' Slight V. Patton, 96 Cal. 384, 387, 31 Pac. Rep. 248. 3s Harmon v. Ashmead, 68 Cal. 321, 323, 9 Pac. Rep. 183. 3" See Hicks v. Murray, 43 Cal. 515, 523 (dissenting- opinion of Crockett, J.), and Davis v. Livingston, 29 Cal. 283, 287 (1862). Nevada. But see Hunter v. Truckee Lodge, 14 Nev. 24, 31 (187o). Oregon. Allen v. Elwert, 29 Oreg. 428, 44 Pac. Rep. 823, 48 Id. 54. Utah. Contra: Morrison v. Willard, 17 Utah 306, 53 Pac. Rep. 832, 70 Am. St. Rep. 784. Washington. See contra: Tacoma L. & M. Co. v. Kennedy, 4 Wash. 305, 30 Pac. Rep. 79. ■"' Pacific Mut. L. Ins. Co. v. Fisher, 109 Cal. 566, 569, 42 Pac. Rep. 154; California Powder Works v. Blue Tent Consol. H. G. M. Co. (Cal., Oct. 8, 1889), 22 Pac. Rep. 391. Colorado. Under acts of 1889 and 1893 it was not necessary to set forth the dates when the first and last materials were furnished: Sprag-ue L Co. v. Mouat L. & L Co., 14 Colo. App. 107, 60 Pac. Rep. 179, Ibl. " California P. W. v. Blue Tent Consol. H. G. M. Co. (Cal., Oct. 8, 1889), 22 Pac. Rep. 391. Colorado. So of time of furnishing first and last materials: Mouat L. & I. Co. V. Freeman, 7 Colo. App. 152, 42 Pac. Rep. 1040. Oregon. Nottingham v. McKendrick, 38 Oreg. 495, 63 Pac. Rep. 822, 57 Id. 195. Washington. Time when claimant ceased to furnish material should be stated: Johnston v. Harrington, 5 Wash. 73, 31 Pac. Rep. 316. « Hills V. Ohlig, 63 Cal. 104. See § 397, post. Washington. Fairhaven L. Co. v. Jordan, 5 Wash. 729, 734, 32 Pac. Rep. 729 (Gen. Stats., § 1667). ^3 Gordon v. South Fork C. Co., 1 McAl. 513, 10 Fed. Cas. 817. Nevada. Nor is it necessary to specify the particular kind of work: Maynard v. Ivey, 21 Nev. 241, 29 Pac. Rep. 1090. ■ Oregon. See Dillon v. Hart, 25 Oreg. 49, 34 Pac. Rep. 817. Utah. Contra: Morrison v. Willard, 17 Utah 306, 53 Pac. Rep. 832, 70 Am. St. Rep. 784. " Neihaus v. Morgan (Cal., June 2, 1896), 45 Pac. Rep. 255. See Ti')betts V. Moore. 23 Cal. 208, 215 (1856). And see §§ 375 et seq., post. Utah. Contra: Morrison v. W^illard, 17 Utah 306, 53 Pac. Rep. 832, 70 Am. St. Rep. 784. Washington. See contra: Fairliaven L. Co. v. Jordan, ."> Wash. 729, 32 Pac. Rep. 729; Johnston v. Harrington, 5 Wash. 73, 81, 31 Pac. Rep. 316. § 375 mechanics' liens. 312 the Code of Civil Procedure is done in an incorporated city, where it describes the property as situated in such city, as the city of San Diego, the court taking judicial notice that it is an incorporated city.*^ Surplusage. Mere surplusage,*® or misstatement of facts not material,*^ does not vitiate the claim; although, as in the case of the date of the contract, such misstatement may be a limitation upon the amount of the recovery.*^ § 375. Statement of demand, after deducting credits and offsets.*'-' The claim filed must contain a " statement of his demand, after deducting all just credits and offsets." ^° This is thought to mean something different from the statement of the " terms, time given, and conditions of the contract " ; ^^ « Bryan v. Abbott, 131 Cal. 222, 225, 63 Pac. Rep. 363. *« See Mclntyre v. Trautner, 63 Cal. 429, 431. Colorado. Bitter v. Mouat L. & I. Co., 10 Colo. App. 307, 51 Pac. 519 (amount to become due, statement, 1889). " Harmon v. Ashmead, 68 Cal. 321, 323, 91 Pac. Rep. 183. See Nei- haus V. Morgan, 45 Pac. Rep. 255. See " Error in Claim," §§ 412 et seq., post. Oregon. Chamberlain v. Hibbard, 26 Oreg-. 4 28. « See §§ 387 et seq., and §§ 411 et seq., post. ^ As to error or mistake in the statement of the demand, or of the amount of credits and offsets allowed, or of the balance asserted to be due claimant, see Kerr's Cyc. Code Civ. Proc., § 1203a (a new section, added by Stats, and Amdts. 1907, p. 858). See also "Uncertainty and Error," §§411 et seq., post. Colorado. Failure to specify the amount as due and owing under a written contract: See Joralmon v. McPhee, 31 Colo. 26, 71 Pac. Rep. 419, 422. ^^ Kerr's Cyc. Code Civ. Proo., § 1187. IVew Mexico. See Ford v. Springer L. Assoc, 8 N. M. 37, 51, 41 Pac. Rep. 541. Washington. See United States Sav. L. & Bldg. Co. v. Jones, 9 Wash. 434, 37 Pac. Rep. 666; Merchant v. Humeston, 2 Wash. Ter. 433; Wheeler v. Port Blakeley M. Co., 2 W^ash. Ter. 71, 3 Pac. Rep. 635. " See §§ 387 et seq., post. Cases do not seem to be very clear upon this point. But see Goss v. Strelitz, 54 Cal. 640, 643; Wagner v. Hansen, 103 Cal. 104, 107, 37 Pac. Rep. 195; Russ L. & M. Co. v. Garrettson, 87 Cal. 589. 591, 25 Pac. Rep. 747. New Mexico. This expression means a statement of " indebted- ness": Minor v. Marshall, 6 N. M. 194, 201, 27 Pac. Rep. 481; Hobbs v. Spiegelberg, 3 N. M. 357, 361, 5 Pac. Rep. 529 (1880; claim, "after de- ducting all credits"; statute (§6), "after deducting. all just credits and offsets"; held, sufficient). Oregon. " ' Demand,' as used In the act, evidently means the thing claimed as due, which, in this class of cases, is a sum of money, and a statement of the demand would be a recital of facts out of wMch it arises ": Ainslie v. Kohn, 16 Oreg. 363, 19 Pac, Rep. 97. 313 CONTENTS OF CLAIM OF LIEN. § 375 and a statement that the claimant was to receive a certain sum upon the completion of the work is not a sufficient state- ment of his demand."'^^ " Demand " means what. It is thus evident that the " de- mand " is not necessarily the contract price; ^^ nor does the expression mean an itemized account ; ^* but a statement of " Wagner v. Hansen, 103 Cal. 104, 107, 37 Pac. Rep. 195. See Fer- nandez V. Burleson, 110 Cal. 164, 167, 42 Pac. Rep. 566, 52 Am. St. Rep. 75; Santa Monica L. & M. Co. v. Hege, 119 Cal. 376, 380. 51 Pac. Rep. 555. " Santa Monica L. & M. Co. v. Heg-e, 119 Cal. 376, 381, 51 Pac. Rep. 555. ^ " Demand." In the case of Jewell v. McKay, 82 Cal. 144, 150, 23 Pac. Rep. 139, it was said: "The statute, as it stood in 1858, required that the notice should give 'a just and true account of the demand.'" Itemizing unnecessary. " And, under this provision, it was held in Brennan v. Swasey, 16 Cal. 141, 76 Am. Dec. 507, that an itemized account was not necessary, the court, per Cope, J., saying, ' It was un- necessary to set out the items of the account. Nothing more was required than a statement of the demand, showing its nature and character and the amount due or owing thereon': See also Selden v. Meeks, 17 Cal. 129, 131; Heston v. Martin, 11 Cal. 42; Davis v. Living- ston, 29 Cal. 283": Jewell v. McKay, supra. " Tlie word 'demand' was construed in Brennan v. Swasey, above quoted, and. under tliat decision, it must be held that the word does not mean an itemized account"; Jewell v. McKay, supra. But see Wagner v. Hansen, 103 Cal. 104, 107, 37 Pac. Rep. 195. Under the act of ISiJli, § 5 of which required " a written notice to the employer of the original contractor, of the nature and extent of their claims against the original contractor or his assigns, over and above all payments and offsets for work and labor done or agreed to be done, or materials furnished or agreed to be furnislied, for such construction or repair," where the notice simply notified the owners that the claimant held them responsible for a specified sum "for turn- ing and materials furnished for your houses on Powell Street, ordered by Gosling & Shelden," the contractors, it was held that the "state- ment prescribed is a statement of claims as affected by payments and offsets, and there is nothing in the notice . . . bearing either directly or indirectly upon that point": Davis v. Livingston, 29 Cal. 283, 287; but it was h,eld in the same case that it was not necessary to state the particular character of the materials, as "the nature and extent" of the claim may be as well understood without it. Hawaii. The notice of lien for materials furnished by a subcon- tractor should show the nature and character of the materials for Which the lien is claimed: Allen v. Redward, 10 Hawn. 151, 160. Montana. See Bardwell v. Anderson, 13 Mont. 87, 32 Pac. Rep. 285. as to particularity of account. "A just and true account" does not Imply, necessarily, the exact amount a jury or court might find due under the contract: Smith v. Sherman, 12 Mont. 524, 31 Pac. Rep. 72; Black v. Appolonio, 1 Mont. 342, 346; Nolan v. Lovelock, 1 Mont. 224; Merrigan v. English, 9 Mont. 113, 22 Pac. Rep. 454, 5 L. R. A. 837. Nevada. Items not required; it is sufficient to set forth a state- ment of the demand, sliowing its nature and character, and the amount due or owing thereon: Lonkey v. Wells, 16 Nev. 271. § 375 mechanics' liens. 314 the amount due as affected by credits and offsets.^" Where, however, the statutory' original contract is void because not filed, the claim may aver the contract price for the materials, New Mexico. But see Hobbs v. Spiegelberg, 3 N. M. 361, 5 Pac. Rep. 529; and see Springer L. Assoc, v. Ford, 168 U. S. 513, bk. 42 L. ed. 562, 18 Sup. Ct. Rep. 170. Oregon. Curtis v. Sestanovicli, 26 Oreg. 107, 37 Pac. Rep. 67; Ainslie V. Kohn, 16 Oreg. 363, 19 Pac. Rep. 97, dLstinKuished in Gates v. Brown, 1 Wash. 470, 473, 25 Pac. Rep. 914; Chamberlain v. Hibbard, 26 Oreg. 428. 38 Pac. Rep. 437. See §§ 387 at seq., post. Utah. Statement of demand, where an action to reform certain alleged fraudulent estimates of the engineer was pending: Garland v. Bear Lake & R. T^'. & Irr. Co.. 9 Utah 350, 34 Pac. Rep. 368. Washington. Where there is no separate contract for the labor and for the materials, but one contract for everything required in the prosecution of any particular work, the claim cannot and should not set out separate amounts for the material and for the labor: Spears V. Lawrence, 10 Wash. 368, 38 Pac. Rep. 1049, 45 Am. St. Rep. 789. But contra where the claim stated that, "pursuant to the contract, the lienors did furnish to J. . . . certain materials and labor, as one con- tinuous running account, and as ordered by him, which was reason- ably w^orth $1,789.27": Lnited States Sav. L. & Bldg. Co. v. Jones, 9 Wash. 434, 439, 37 Pac. Rep. 666. And it seems to be held in the last- mentioned case that it ip necessary to describe the kind of material furnished: "We have held that a statement of the demand requires something more than a statement of the amount claimed": Id. It was formerly held, in tlie case of material-iuen, that "a, reason- able bill of items" was required: Fairhaven L. Co. v. Jordan, 5 Wash. 729, 32 Pac. Rep. 729; Gates v. Brown, 1 Wash. 470, 25 Pac. Rep. 914; Warren v. Quade. 3 Wash. 750. 29 Pac. Rep. 827: but see Tacoma L, & Mfg. Co. V. Kennedy, 4 Wash. 305, 30 Pac. Rep. 79. An exhibit or itemized statement, made a part of the claim, may be sufficient as a statement of the amount due after deducting all just credits and offsets, without stating that the cash credits were all the payments made on account of the material furnished: Johnston v. Harrington, 5 Wash. 73, 80, 31 Pac. Rep. 316. The fact that there was no other indication of the character of the materials, than that it was " mdse.," rendered the claim insufficient, notwithstanding the fact that the billhead showed the nature of the material in which the claimant dealt: Fairhaven L. Co. v. Jordan, supra. In this case it was also held that a claim for a balance i.« insufficient, citing Gates v. Brown, supra. ^ See authorities in preceding foot-note. Oregon. Failure to allow as a credit the amount received by claim- ant on the sale of certain groceries alleged to have been improperly sold, held to vitiate the lien: Lewis v. Beeman, 46 Oreg. 311, 80 Pac. Rep. 417. Effect of false statement. " Where the claimant seeks to enforce his lien against the property of one with whom he did not contract, and to whom he did not furnish labor or material, and in his state- ment, as filed, neglects to deduct from the amount of his claim pay- ments which have been made thereon, and thereby puts on record a statement which he knows, or could have known by the exercise of reasonable diligence, was not 'a true statement of his claim, after deducting all just credits and offsets.' " he loses his lien, in the absence of a savin,g statute: Nicolai Bros. Co. v. Van Fridagh, 23 Oreg. 149, 31 Pac. Rep. 288. 315 CONTENTS OP CLAIM OF LIEN. § 376 and this statement is a sufficient showing, prima facie, of their value.^® What sufficient compliance with statute. There is a suffi- cient compliance with the statute when the claim states that the reasonable value of materials furnished by plaintiffs for each of the two houses was a specified sum, no part of which has been paid, and that the total sum for the two houses (des- ignating it), " in gold coin of the United States," is still due on such buildings, after deducting all just credits and off- sets.°^ The clause under discussion does not require, in the case of materials, a statement that they were furnished to be used in the building."* § 376. Same. Object of provision as to demand. The object of the provision requiring the claim of lien to contain "After deducting all credits," etc. It is not necessary to use the expression, "after deducting aU just credits and offsets"; and it is sufficient if notice be given of the amount of the claim: Ainslie v. Kohn 16 Greg. 363. 19 Pac. Rep. 97; Kezartee v. Marks. 15 Greg. o29, 535, 16 Pac. Rep. 407; Whittier v. Blakesley, 13 Greg. 546, 11 Pac. Rep. 305' (1874). ^^ ,. =« Bringham v. Knox, 127 Cal. 40, 44, 59 Pac. Rep. 198. No direct reference, however, was made in this case to the requirement of the statute regarding the " demand," or, in fact, to any requirement rela- tive to the claim of lien. " Neihaus v. Morgan (Cal., June 2, 1896), 45 Pac. Rep. 255. Colorado. Where tlie notice simply gave the balance due, the stat- ute requiring "an abstract of indebtedness, showing the whole amount of debt, the whole amount of credit, and the balance due, or to become due, to the claimant": held, insufficient: Cannon v. Williams, 14 Colo. 21, 23 Pac. Rep. 456 (1883). See Rico R. & M. Co. v. Musgrave, 14 Colo. 79, 23 Pac. Rep. 458. Where the statement set out that the contract price was two hun- dred and fifty dollars, that the owner had paid one hundred and twenty-five dollars, "and that the sum of $ is still due and owing"; held, sufficient, as no one could be misled: Harris v. Harris. 9 Colo. App. 211, 47 Pac. Rep. 841. • Where the statement embraced several assi|?ned liens, and the total amount due on each claim separately was given, but only the aggre- gate credit was given, it was held sufficient: Small v. Foley, 8 Colo. App. 435, 443, 47 Pac. Rep. 64. But otherwise if the sums due are not given: Small v. Foley, supra; Hanna v. Savings Bank, 3 Colo. App. 28, 31 Pac. Rep. 1020. •■» Neihaus v. Morgan (Cal., June 2, 1896), 45 Pac. Rep. 255. See Tibbetts v. Moore, 23 Cal. 208, 215 (1856). See also "Unnecessary Statements," §§374 et seq., ante, and §413, post. As to Utah and ^^'asilington, see notes to § 374. ant<» § 377 mechanics' liens. 316 a statement of the claimant's demand, after deducting all just credits and offsets, is to inform the owner as to the extent and nature of the lienor's claim, so that he may act thereon in his settlement with the contractor.^^ § 377. Same. Commingling lienable and non-lienable items. When an unspecified and undeterminable portion of the materials mentioned in the claim consists of non-lienable items which cannot be segregated from the general aggre- gate, the claim is of no effect ; ^° but if the items can be separated, the rule is otherwise.®^ ■■'• Santa Monica L. & M. Co. v. Hege, 119 Cal. 376, 381, 51 Pac. Rep. 555. Colorado. Its object is to infoi-m any interested party of the actual condition of the account and the amount for which a lien is claimed: Harris v. Harris, 9 Colo. App. 211, 219, 47 Pac. Rep. 841. «» McClain v. Hutton, 131 Cal. 132, 141, 61 Pac. Rep. 273, 63 Id. 182, 622. Arizona. Where lienable and non-lienable items are commingled in the same claim, it is proper to receive evidence in order to segregate the lienable items, in the absence of fraud or bad faith. Thus such evidence was allowed where the non-lienable items were otherwise lienable, but a claim therefor had not been filed within the proper time: Wolfley v. Hughes, 71 Pac. Rep. 951. Havraii. Bierce v. Hutchins, 16 Hawn. 418, 425, 717. New Mexico. A claim for a fixed sum for all services under an entire contract, part of the services being non-lienable, is void, under Comp. Laws, § 1520: Boyle v. Mountain K. M. Co., 9 N. M. 237, 50 Pac. Rep. 347. Oregon. "Where lienable and non-lienable items are included in one contract for a specific sum, or are made the basis of a lumping charge, so that it cannot be perceived from the contract or account what proportion is chargeable to each, the benefit of the mechanic's- lien law is lost. In such cases the court cannot, by extrinsic evi- dence, apportion the amount of the entire charge or contract price be- tween the lienable and non-lienable items. But where the claimant's demand, made in good faith, consists of several different items, sepa- rately charged, some of which are, by law, a lien upon the property, and others do not come within the scope of the statute, he may enforce his lien so far as given by law, and it is not vitiated because he has included therein non-lienable items": Getty v. Ames, 30 Oreg. 573, 48 Pac. Rep. 355, 60 Am. St. Rep. 835; Allen v. Elwert, 29 Oreg. 428, 4 44, 44 Pac. Rep. 823, 48 Pac. Rep. 54; Title G. & T. Co. v. Wrenn, 35 Oreg. 62, 56 Pac. Rep. 271, 274, 76 Am. St. Rep. 454. \Va.sliinKton. Where non-lienable items are included in the claim of lien, under the honest belief that they are lienable, a personal judg- ment could only be entered against the owner on the non-lienable items: Powell v. Nolan, 27 Wash. 318. 67 Pac. Rep! 712, 720 (under Ballinger's Ann. Codes and Stats., § 5907). "" See § 414, post. As to effect of non-lieuuble items on lien, see note 4 Am. & Eng. Ann. Cas. 836. 317 CONTEXTS OF CLAIM OF LIEN. §§ 378, 379 § 378. Same. Demands against two or more buildings. With reference to specifying the several amounts due on each of two or more buildings, etc., under the California statute,®^ and under similar provisions, it has generally been held that the failure to designate such amounts does not invalidate the lien, but affects only its priority.®^ The latter subject will be considered in detail hereafter."* § 379. Names required to be stated in claim. In general. The statute"^ provides: "Every original contractor, . . . and every person, . . . must file ... a claim containing a statement of his demand, . . . with the name of the owner Mechanic's lien not vitiated 1)ecause the claim covered, in part, articles not sul).iect to lien, it not appearing- tliat the claim was wil- fully so made: Barnes v. Colorado Springs & C. C. D. R. Co. (Colo., March 2, 1908), 94 Pac. Rep. 570. «2 Kerr's Cye. Code Civ. Proc, § 1188. «3 See Snell v. Payne, 115 Cal. 218, 46 Pac. Rep. 1069; Booth v. Pen- dola, 88 Cal. 36, 43, 23 Pac. Rep. 200, 25 Pac. Rep. 1101. See "Descrip- tion," § 406, post. As to mechanic's lien on separate buildings locatetl on nou-contigu- ous lots, see note 2 Am. & Eng-. Ann. Cas. 685. Colorado. See Small v. Foley, 8 Colo. App. 435, 47 Pac. Rep. 64. Idaho. Effect of failure to specify amount due on each property is to postpone lien: Phillips v. Salmon River M. & D. Co., 9 Idaho 149, 72 Pac. Rep. 886 (under Sess. Laws 1899, p. 148, § 7). New Mexico. Lien filed ag-ainst several mining claims is not void because the amounts against each claim are not separated in the claim: Post v. Fleming, 10 N. M. 476, 62 Pac. Rep. 1087 (under Comp. Laws 1897, § 2222). Utah. Under Rev. Stats. 1898, § 1387, the court is at liberty to hold the claim insufficient or not, as equity demands in the particular case, where the claim fails to state the amount due on each building; but otherwise under preceding- statutes, which rendered the claim invalid: Eccles L. Co. v. Martin, 87 Pac. Rep. 713. The statement required by Rev. Stats. 189S, § 1386. is for the purpose of acquiring a lien, but that required by § 1387 relates to priorities: Id. It is not necessary for the claim to recite the «-ork done or ma- terials furnished under each of two or more separate contracts; but it is sufficient to state the total amount of debt and credit, and balance due: Culmer v. Caine, 22 Utah 216, 61 Pac. Rep. 1008 (under Laws 1890, ch. XXX, § 17). Washington. The effect of failing to designate in tlie claim of lien the amount due on each of two buildings is merely to postpone it to other liens, and not to invalidate it: Seattle L. Co. v. Sweeney, 33 Wash. 691, 74 Pac. Rep. 1001 (under 2 Ballinger's Ann. Codes and Stats., § 5907). But see Heald v. Hodder, 5 Wash. 677, 32 Pac. Rep. 728; Mer- chant V. Humeston. 2 Wash. Ter. 433, 7 Pac. Rep. 903. •* See " Priorities," §§ 486 et seq.. post. • Kerr's Cyc. Code Civ. Proc, § 1187. § 380 mechanics' liens. 318 or reputed owner, if known, and also the name of the person by whom he was employed, or to whom he furnished the materials." ^^ The object of this statement in his claim is to designate the person against whom he seeks to establish the lien, as well as to protect others in their dealings with the property.''^ The purpose of this designation is to point out the individual who is to be affected thereby, rather than the attribute of ownership ; and if the individual against whose property the lien is claimed is specified, he receives all the notice which is intended by the statute, irrespective of whether he is designated as owner or reputed owner.®^ Substantial compliance with the statute, in regard to names, is sufficient, if the owner is not misled or prejudiced by reason of any misstatement in the claim.'''' § 380. Same. Name of owner or reputed owner. The statute '^° requires the claim to state " the name of the owner «« stating quantity of materials. As to circumstances under which it is not necessary for the claimant to state the quantities of material furnished to different persons named, under this clause, see Harmon V. San Francisco & S. R. R. Co., 86 Cal. 617, 619, 25 Pac. Rep. 124; Gordon H. Co. v. San Francisco & S. R. R. Co., 86 Cal. 620, 623, 25 Pac. Rep. 125. Substantial compliance with the statutory requirements as to making out in writing and verifying claim of lien is necessary, in order to charge, under the provisions of the mechanic's-lien law, the land or building of a third party with a debt incurred by another and not by the owner: Hogan v. Bigler (Cal. App., April 9, 1908), 96 Pac. Rep. 97. For unnecessary statements, see § 374, ante. " Corbett v. Chambers, 109 Cal. 178, 185, 41 Pac. Rep. 873; Ah Louis V Harwood, 140 Cal. 500, 504, 74 Pac. Rep. 41. » Corbett v. Chambers, 109 Cal. 178, 185, 41 Pac. Rep. 873. See Reed V. Norton, 90 Cal. 590, 596, 26 Pac. Rep. 767, 27 Pac. Rep. 426; Ah Louis v. Harwood, 140 Cal. 500, 504, 74 Pac. Rep. 41. See § 365, ante. «« West Coast L. Co. v. Apfield, 86 Cal. 335, 341, 24 Pac. Rep. 993; Reed v. Norton, 90 Cal. 590, 596, 26 Pac. Rep. 767, 27 Pac. Rep. 426. See Harmon v. San Francisco & S. R. R. Co., 86 Cal. 617, 619, 25 Pac. Rep. 124. Montana. Richards v. Lewisohn, 19 Mont. 128, 133, 47 Pac. Rep. 645, 647. Oregon. See Osborn v. Logus, 28 Oreg. 302, 37 Pac. Rep. 456. 38 Pac. Rep. 190, 42 Pac. Rep. 997; but see Gordon v. Deal, 23 Oreg. 153, £1 Pac. Rep. 287. '» Kerr's Cyc. Code Ciy. Proe., § 1187. 319 CONTENTS OF CLAIM OF LIEN. § 380 or reputed owner, if known." " A substantial compliance with section eleven hundred and eighty-seven, as to the claim " Montana. WHienever a particular statute requires the claim to contain the name of the owner or reputed owner, the general rule is, that the omission of this detail is fatal to the lien. In Montana L. & M. Co. V. Obelisk M. & C. Co., 15 Mont. 20, 37 Pac. Rep. 897, the court assumed that the provisions of the Compiled Statutes of 1887 (Comp. Stats. 1887, div. v, §§ 1371-1373, and amendments, Laws 1887, p. 71), which are substantially the same as §§ 2131 and 2132 oi the Code of Civil Procedure, requiring the claim of lien to state the name of the owner. Again, in Richards v. Lewisohn, 19 Mont. 128, 47 Pac. Rep. 645, it was said that this construction of the provisions of the Compiled Statutes was necessary, in order that they might be made harmonioiis' and rendered effective. A compliance on the lienor's part enables the clerk to perform his duty, which, otherwise, he could not do: Missoula M. Co. v. O'Donnell, 24 Mont. 65, 60 Pac. Rep. 594, 991. If sought to aiteot the building only, the same requirement should have been observed. In Montana L. & M. Co. v. Obelisk M. & C. Co., 15 Mont. 20, 37 Pac. Rep. 897, the court approved this construction of the statute, for it was there held that it was not necessary to state the name of the owner of the fee, but that the name of the lessee was sufficient, where it was sought to charge its interest only. So long as the record owner of the fee or other interest to be charged is the person who is to be affected by the claim, he is the owner, within the meaning of the statute, and It is necessary to name him as the owner; but if the person for whose benefit the improvement is erected does not appear of record as the owner, it is nevertheless incumbent on the claimant to insert such owner's name in the claim: Missoula M. Co. v. O'Donnell, 24 Mont. 65, 60 Pac. Rep. 991, 994. And see Cook v. Gallatin R. Co., 28 Mont. 340. 72 Pac. Rep. 678. As to building or improvement distinct from the land, see note 2 Am. & Eng. Ann. Cas. 689-691. Omission of the name of tlie owner \vho.se interest is to be charged cannot be supplied by the complaint: Cook v. Gallatin R. Co., 28 Mont. 340, 72 Pac. Rep. 678 (variance between names). Oregon. It is essential that the name of the owner or reputed owner shall be stated: Gordon v. Deal, 23 Oreg. 153, 27 Pac. Rep. 287; that is, the name of the "owner of the building or other improve- ments": Kezartee v. Marks, 15 Oreg. 529, 16 Pac. Rep. 407 (under § 3673. Hill's Code). It should not appear incidentally, or as part of the description of the property, but it must appear on the face of the claim as an independent matter, either directly or by necessary infer- ence: Gordon v. Deal, siipra. Washington. In Wright v. Cowie, 5 Wash. 341, a claim was lield insufficient because the owner of a leasehold interest in a portion of the land covered by the building, and of a part of the building erected thereon, was not made a party to the claim. Where the claim stated that a certain company was the owner and reputed owner "of said railroad," but there was no reference to the ownership of the land over and through which said railway was constructed, or of the own- ership of the right of way thereof, it was held insufficient: Vincent v. Snotiualmle Mill Co., 7 Wash. 566, 35 Pac. Rep. 396; Front Street Cable E. Co. V. Johnson. 2 Wash. 112, 25 Pac. Rep. 1084, 11 L. R. A. 693. As to mechanic's lien on leasehold estate, see note 3 Am. & Eng. Ann. Cas. 1096. With reference to the name of the owner or reputed owner, under § 5904, Ballinger's Ann. Codes and Stats., which was similar to the California provision, it was also provided, " if not known, that fact § 380 mechanics' liens. 320 of lien, relative to the ownership of the property, is all that is required.^- shall be mentioned." Under this section it was held that the claim was not invalidated because the claimant was mistaken as to who was the owner of the realty, no one being misled to his damage: and where the claim stated that the " name of the owner and reputed owner of such premises is, and at all times mentioned herein was, J. Co., and that one S. is the owner of the ground on which said plant is located." and set forth a leasehold interest in said company, it was held suffi- cient, although the real owner of the land was another than the one stated: Hopkins v. Jamieson-Dixon Mill Co., 11 Wash. 308, 39 Pac. Rep. 815. Mi»)take as to leg^al ami equitable ownership. A claim of lien is sufficient which states that tlie real owner has but an equitable inter- est in the premises, and mistakingly attributes the legal ownership to another, who has no interest in the premises, there being no interested subsequent purchasers or encumbrancers, and the real owner not being injured or misled by the statement that he was the equitable owrer only, as all persons by proper inquiry could ascertain the real facts of the case; and if the claim had stated that S. was the owner and reputed owner of the premises, the fact that he owned a greater interest in the land than that set out in the claim would not invali- date the lien: Bolster v. Stocks, 13 Wash. 460, 43 Pac. Rep. 532, 534, 1099. Husband and wife. Where it did not appear on the face of tlie claim that the claimant had knowledge of the fact that the wife of the owner had an interest therein, the omission of her name did not vitiate it: Bolster v. Stocks, 13 "Wash. 460, 43 Pac. Rep. 532, 534, 1099; Powell V. Nolan, 27 Wash. 318, 67 Pac. Rep. 712; Douthitt v. MacCulsky, 11 Wash. 601, 606. 40 Pac. Rep. 186. Cases distinguislied. These cases do not fall within the principles announced in Littell-Smythe Mfg. Co. v. Miller, 3 Wash. 480, 28 Pac. Rep. 1035, and Sagmeister v. Foss, 4 Wash. 320, 30 Pac. Rep. 80, 744. See Chehalis County v. Elllinger, 21 Wash. 638, 644, 59 Pac. Rep. 485, as to the last-mentioned case. In LitteU-Smythe Mfg. Co. v. Miller, 3 Wash. 480, 28 Pac. Rep. 1035, it was held that in all suits to foreclose liens upon community real estate the wife was a necessary party defendant; and in Sagmeister V. Foss, 4 Wash. 320, 30 Pac. Rep. 80, 744, that the claim of lien against the husband and his interest in certain realty, which shows upon its face that the claimant had knowledge that the wife had a community interest in the real estate, is defective, the claim stating a certain person to be the owner, and alluding to the "community interest of the wife of said" person. See also Collins v. Snoke, 9 Wash. 566, 571, 38 Pac. Rep. 161, and Turner v. Bellingham Bay L. & Mfg. Co., 9 Wash. 484, 37 Pac. Rep. 674, explaining these cases to substantially the same effect. In AVashinKton Rock Plaster Co. v. Jolinson, 10 Wash. 445, 39 Pac. Rep. 115, it was said: "The paper title was in the name of the hus- band, and knowledge of the fact that he had a wife was not so brought home to the plaintiff as to make it necessary that it should name her as one of the owners of the property. Besides, the necessity of making her a party to the lien notice, in any case where the record title is in the husband alone, may well be doubted.'' And so in claim- ing a lien upon the separate property of one spouse, it is not necessary to name the other spouse, even though at the time it is intended to be claimed as a homestead: See Parsons v. Pearson, 9 Wash. 48, 36 Pac. Rep. 974. « Santa Cruz R. P. Co. v. Lyons, 133 Cal. 114, 119, 65 Pac. Rep. 329. 32] CONTENTS OF CLAIM OF LIEN. § 380 Owner at the time of filing claim. There is no limitation upon the term " owner," as used in the provision above quoted. It does not refer to the owner with whom the con- tract for the improvement was made, nor to any one but the owner at the date of the tiling of the claim, as the latter is the party to be affected thereby, rather than the one who has parted with his property subsequent to the time of the original contract.'^^ Change of ownership. Where there is a change of owner- ship during the work, the claim is not insufficient because it states the names of all who were owners and reputed owners during all the times stated in the claim, and because it did 73 See elaborate historical argument to estabUsh this proposition, in Corbett v. Chambers, 109 Cal. 178, 181, 41 Pac. Rep. 873; Ah Louis v. Harwood, 140 Cal. 500, 504, 74 Pac. Rep. 41. See Pacific M. L. Ins. Co. v. Fisher, 109 Cal. 566, 569, 39 Pac. Rep. 758. See " Object," § 365, ante. Colorado. Chicago L. Co. v. Dillon, 13 Colo. App. 196, 56 Pac. Rep. 989. Under the act of 1893, the owner to be named was the owner and holder of the legal title at the time the claim of lien was filed: Sprague I. Co. v. Mouat L. & I. Co., 14 Colo. App. 107, 121, 60 Pac. Rep. 179, 183; and this must appear on the face of the claim, or in the body of the statement, as an integral part or portion of the " declaration of right": Id. The court, alluding to Bitter v. Mouat L. & I. Co., 10 Colo. App. 307, 51 Pac. Rep. 519, and Maher v. Shull, 11 Colo. App. 322, 52 Pac. Rep. 1115, said: "What those cases hold, and what they intend to decide, undoubtedly is, that this equitable title and equitable owner- ship is enough, as between the lien claimant and the holder of the equitable title. It will prevent the equitable owner from objecting to the statement on the ground of its insufficiency in stating the title or the name of the person who owned the property." In a court of equity, the equitable owner, whose name appeared in the claim of lien would not be permitted to contend that the lien statement was insufficient: Id. Oregon. Willamette S. M. L. & M. Co. v. McLeod, 27 Oreg. 272, 40 Pac. Rep. 93; although at the time of making the contract he had only an equitable interest. Washington. The name of the owner or reputed owner at the time of filing the claim should be given: Collins v. Snoke, 9 Wash. 566, 570. 38 Pac. Rep. 161. So the name of the legal owner of a leasehold inter- est, on which the lien is claimed, although it may be held merely as security, was held sufficient: Harrington v. Miller, 4 Wash. 808, 812, 31 Pac. Rep. 325. VVIiere notice stated tliat defendants were the owners, § 5917, 2 Ballinger's Ann. Codes and Stats., authorized the construction that the defendants were the owners at the time the materials were furnished. and where the notice states that the defendants were the owners, the section authorized the construction that the defendants were still tlie owners: Seattle L. Co. v. Sweeney. 33 Wash. 691, 74 Pac. Rep. 1001. Wyoniiug. Davis v. Big Horn L. Co.. 14 Wyo. 517, 85 Pac. Rep. 980. As to iiiechanio's lien on leasehold estate, see note 3 Am. & Eng. Ann. Cas. 1006. Mech. Liens — 21 § 380 MECHAXICS' LIEXS. 322 not state at what time the title passed from one owner to an<^thpr.'^ Knowledge of name. The claimant may not know the name of the owner, and if he is ignorant of his name, the claim is sufficient if silent on the subject."' It is sufficient if the name of the reputed owner is given. ■^'' Of course, if the claim states that a certain person is the reputed owner, and such person is found to be the owner, the claim is sufficient in this respect.'''^ But if the claimant, as a matter of fact, knows the name of the owner or reputed owner, such state- ment is as material as anj- other statement required by the statute, and it must be given.^^ " Ah Louis V. Harwood, 140 Cal. 500, 504, 74 Pac. Rep. 41. '5 West Coast L. Co. v. Newkirk, 80 Cal. 275, 277, 22 Pac. Rep. 231; Corbett v. Chambers, 109 Cal. 178, 183, 184, 41 Pac. Rep. 873. A state- ment in the last-mentioned case that the claimant may state the fact of such ignorance is dictum; and the decision in Hooper v. Flood, 54 Cal. 218, 222, requiring a statement of the name of the owner or reputed owner, or that such names are unknown, mu.st be considered as impliedly overruled but not noticed by later decisions. See "Contents of Claim in General," §370, ante, and "Unnecessary Statements," § 374, ante, and authorities, post, this section, in this con- nection. See Bryan v. Abbott, 131 Cal. 222, 224, 63 Pac. Rep. 363. Colorado. A lien claimant can only be charged with knowledge of the ownership of property as apparent upon the public records: Bitter V. Mouat L. & I. Co., 10 Colo. App. 307, 51 Pac. Rep. 519. Montana. Richards v. Lewisohn, 19 Mont. 128, 132, 47 Pac. Rep. 645. Nevada. Malter v. Falcon M. Co., 18 Nev. 209, 2 Pac. Rep. 50. See Maynara v. Ivey, 21 Nev. 241, 29 Pac. Rep. 1090. Wyoming. See W'yman v. Quayle, 9 Wyo. 326, 63 Pac. Rep. 988, in which it was held that where the claim does not state the name of the owner, and the pleadings do not show that the name of the owner was unknown, the lien is ineffectual. This doctrine is questionable, in the light of the authorities and the principles of construction of such stat- utes. See also Davis v. Big Horn L. Co., 14 W^yo. 517, 85 Pac. Rep. 980. '« Bryan v. Abbott, 131 Cal. 222. 223, 224, 63 Pac. Rep. 363. in which the claim stated " ' that Seth Abbott is the name of the reputed owner of said premises, and caused and requested said William McDonald to perform said labor and furnish said materials'; and the complaint alleges, ' That at all the times herein mentioned said defendant Seth Abbott was the owner and reputed owner, and in possession of and personally occupied the following described real property,' " the court saying, "The case of Santa Cruz R. P. Co. v. Lyons, 117 Cal. 212, 48 Pac. Rep. 1097, 59 Am. St. Rep. 174, cited by respondent, does not, either directly or indirectly, hold that the recorded notice of lien must state the name of the owner, but the reasoning of the case and the conclusion reached is entirely consistent with Corbett v. Chambers, 109 Cal. 178, 181, 41 Pac. Rep. 873." " Castagnetto v. Coppertown M. & S. Co., 146 Cal. 329, 80 Pac. Rep. 74. '8 Hicks V. Murray, 43 Cal. 515, 521 (1868); Phelps v. Maxwell's Creek G. M. Co.. 49 Cal.- 336, 339 (1868); West Coast L. Co. v. Newkirk, 80 Cal. 27.5. 277, 22 Pac. Rep. 231. Montana. See Richards v. Lewisohn, 19 Mont. 128, 132, 47 Pac. Rep. 645 (under Comp. Laws. §§ 1371, 1372). 323 CONTEXTS UP CLAIM OF LIEN. § 380 If claimant does not know name of owner of fee, it is not necessary for him to say that he does not know tlie name of the reputed owner, but, under such circumstances, the claim may be silent on the subject.'^** But if in good faith he gives the name of the reputed owner, he will not lose his lien if he should afterwards ascertain that some other person is the owner.*" Various statements considered. A claim is not vitiated by reason of a statement therein that the husband was the re- puted owner of the lot, and that the wife claimed some rights therein and had full knowledge of the signing of the contract, and agreed to the performance of the same, when the evidence did not show that the plaintiff was not .justified in assuming that the husband was the reputed owner of the " West Coast L. Co. v. Newkirk, 80 Cal. 275, 276, 22 Pac. Rep. 231; KeUy V. Lemberger (Cal., Sept. 15, 1896), 46 Pac. Rep. 8. See McClain V. Hutton, 131 Cal. 132, 138, 63 Pac. Rep. 182, 622, 61 Id. 273. See also note 75, this section. Alaska. A claim failing to state tlie name of the owner of the building, or that the name of the owner was unknown, but stating the name of the holder of the legal title to the land, and the name of the vendee, at whose instance the building was erected, was held insuffi- cient: Russell V. Hayner, 2 Alas. 702 (dig.), 130 Fed. Rep. 90. 64 C. C. A. 424 (under Civ. Code, § 262; act of June 6, 1900, 31 Stats. 534, ch. dcclxxxvi, containing language similar to § 1187 of Kerr's Cyc. Code Civ. Proe.). This case is not in line with the authorities, or with the better reasoning. Montana. Where the christian name was stated to be unknown, it was held to be sufficient: Richards v. Lewisohn, 19 Mont. 132, 47 Pac. Rep. 645 (Comp. Laws, §§ 1371, 1372). Nevada. Contra: Malter v. Falcon M. Co., 18 Nev. 209. 2 Pac. Rep. 50. And the name of the reputed owner should then be given: Id. Oregon. See Leick v. Beers, 28 Oreg. 483, 43 Pac. Rep. 658, citing Malter v. Falcon M. Co., supra. Wyoming. The claim must state the name of the owner or that such name is unknown: Wyman v. Quayle, 9 Wyo. 326. 63 Pac. Rep. 988 (under Rev. Stats. 1899). «> Corbett v. Chambers, 109 Cal. 178, 184, 41 Pac. Rep. 873; Santa Cruz R. P. Co. v. Lyons, 133 Cal. 114, 119, 65 Pac. Rep. 329; Ah Louis V. Hkrwood, 140 Cal. 500, 504, 74 Pac. Rep. 41; McClain v. Hutton, 131 Cal. 132, 138, 63 Pac. Rep. 182, 622, 61 Id. 273, in which it was held that a claim of lien on the separate property of the wife, giving the names of the husband and wife as the " names of tlie owners and reputed owners of the said premises," is not void on the ground that the hus- band lias no interest in the property. MiNtake as to party's intere.st. "Still less can the validity of the claim be affected by a mistake in attempting to carry out tlie require- ments of the law": McClain v. Hutton, 131 Cal. 132, 138, 63 Pac. Rep. 182, 622, 61 Id. 273 (as to name of owner or reputed owner). Oregon. See Leick v. Beers, 28 Oreg. 483, 43 Pac. Rep. 658. § 380 mechanics' liens. 324 lot, under an honest mistake as to the real ownership, and without fraud, or for the purpose of deceiving any person.*^ As the claimant is not required to ascertain at his peril the name of the true owner, and as it is sufficient if he give the name of the reputed owner, if knoAvn, an otherwise sufficient claim is not impaired by the fact that the same person is designated as " owner or reputed owner," ^^ or " owner and reputed owner " ; ^^ and in the case last mentioned, if it is proved that he was the reputed owner only, the claim is not ineffectual.** And likewise if the claim states that a certain person is the owner of a house and the reputed owner of a leasehold interest in the realty.^' In a case where the lien set forth that Kelly, Reis, and Corbett were the names of the owners who held the legal title to the premises, and that Ash- mead Avas in possession, and was the name of the reputed owner who had the equitable title, this was held to be suffi- cient.^"' In either case it is only the opinion of the claimant upon matters that are not presumptively within his knowl- edge, but which he has formed from " external " informa- 81 Santa Cruz R. P. Co. v. Lyons, 133 Cal. 114, 119, 65 Pac. Rep. 329. »2 Corbett V. Chambers, 109 Cal. 178, 184, 41 Pac. Rep. 873. IVew Mexico. Ford v. Springer L. Assoc, 8 N. M. 37, 51, 41 Pac. Rep. 541; s. c. affirmed 168 U. S. 513, bk. 42 L. ed. 562, 18 Sup. Ct. Rep. 170; Minor v. Marshall, 6 N. M. 194, 198, 27 Pac. Rep. 481. AVashlngton. And this point cannot be raised for the first time on appeal. The action being between the original parties, no one could be misled thereby: Dearborn F. Co. v. Augustine, 5 Wash. 67, 31 Pac. Rep. 327. «« Arata v. Tellurium G. & S. M. Co., 65 CaL 340, 341, 4 Pac. Rep. 195; tlie court saying, "The same person may be both the owner and the reputed owner, and a statement that a name is the name or the owner is none the less positive because it is also declared to be the name of the reputed owner": McClain v. Hutton, 131 Cal. 132, 138, 63 Pac. Rep. 182, 622, 61 Id. 273. See Bryan v. Abbott, 131 Cal. 222, 223, 224, 63 Pac. Rep. 363. Oregon. See W^illamette S. M. L. & Mfg. Co. v. McLeod, 27 Oreg. 272, 40 Pac. Rep. 93. AVashiiigton. Seattle L. Co. v. Sweeney, 33 Wash. 691, 74 Pac. Rep. 1001 (.under 2 Ballinger's Ann. Codes and Stats., § 5917). ** Kelly V. Lemberger (Cal.), 46 Pac. Rep. 8. See this case as to several persons being reputed owners. *^ West Coast L. Co. v. Newkirk, 80 Cal. 275, 276, 22 Pac. Rep. 231. See Bryan v. Abbott, 131 Cal. 222, 223, 224, 63 Pac. Rep. 363. «« Harmon v. Ashmead, 68 Cal. 321, 324, 9 Pac. Rep. 183. Colorado. A claim which fails to designate the legal owner, but attempts to state the name of the equitable owner, is insufficient as against subsequent encumbrancers and lien-holders: Sprague I. Co. v. Mouat L. & I. Co.. 14 Colo. App. 107, 60 Pac. Rep. 179, 183 (1883). ^Va.shington. See Harrington v. Miller, 4 Wash. 808, 812, 31 Pac Rep. 325. 325 CONTEXTS OF CLAIM OF LIEN. § 880 tion, and in that respect the claim that he is to file differs from a pleading, in which the facts essential to the recovery must be definitely pleaded.^^ The fact that conveyances to other persons are on record does not seem to be conclusive of the question of reputed ownership.^^ The claim is not insufficient because it states that a certain person was the owner of the " premises." *" Where the claim states, among other things, that a certain person was the owner of the " lot " of land which is described, and that he entered into a contract with certain other designated persons to erect and finish for him a build- ing on the lot, and that claimant gave such person written notice of the furnishing of materials, it is a sufficient state- ment that said owner of the lot was the owner of the build- ing, which was erected for him on his land.®" And where s' Corbett v. Chambers, 109 Cal. 178, 184, 41 Pac. Rep. 873. «8 Kelly V. Lemberger (Cal.), 46 Pac. Rep. 8. Montana. The owner mentioned in §§ 2132-2135 of the Code of Civil Procedure, whose name must appear in the claim, is the owner of the interest to be charged; and hence the statement or the name of the record owner is not sufficient to charge the interest of the vendee in possession who erects the building: Missoula M. Co. v. O'Donnell, 24 Mont. 65, 60 Pac. Rep. 594, 991. *» Corbett v. Chambers, 109 Cal. 178, 185, 41 Pac. Rep. 873. Idaho. But see VV^hite v. Mullins, 3 Idaho 434, 31 Pac. Rep. 801. And to state that a mine was the property of the defendant was held not to be an allegation of ownership required by the statute: Steel v. Argentine M. Co., 4 Idaho 505, 42 Pac. Rep. 585, 95 Am. St. Rep. 144. Oreson. It is sufficient to say that the land is the "property" of (Willamette S. M. L. & Mfg. Co. v. McLeod, 27 Greg. 272, 40 Pac. Rep. 93), or was owned by (Curtis v. Sestanovich, 26 Greg. 107, 37 Pac. Rep. 67), a certain person, who caused the building to be erected. Utah. "Said described premises being the property of B. J. Clay- ton," was held sufficient: Morrison v. Willard. 17 Utah 306, 53 Pac. Rep. 832, 70 Am. St. Rep. 784. «« Russ L. Co. V. Garrettson, 87 Cal. 589, 595, 25 Pac. Rep. 747. The inference from this seems to be that the name of the " owner" should be that of the owner of the building; but see reason for this require- ment, S§ 79 et seq., ante. Oreson. It seems that the name of the owner of the building should be stated: Curtis v. Sestanovich, 26 Greg. 107, 37 Pac. Rep. 67; Kezartee v. Marks, 15 Greg. 529, 535, 16 Pac. Rep. 407; Gordon v. Deal, 23 Greg. 153, 154, 31 Pac. Rep. 287. See also Willamette S. M. L. & M. Co. V. McLeod, 27 Greg. 272, 40 Pac. Rep. 93; and see note ante, this section. The CaUfornia ease is cited in the first Oregon case, supra. Pre.Hiimed that building is attaelied to land upon which it is erected: Curtis V. Sestanovich, 26 Greg. 107, 37 Pac. Rep. 67; but see Gordon v. Deal, supra. Name of owner. If the claimant wishes to reach or affect the land with his lien, he should also state the name of the owner thereof: Kezartee v. Marks, 15 Greg. 529, 16 Pac. Rep. 407. § 381 mechanics' liexs. 326 the claim states that a certain person named is the reputed owner of the land, and that he and another person (his wife) named are the reputed owners of the building, it is suf- ficient."^ § 381. Same. Employer. Purchaser. The name of the person by whom the claimant " was emplo^^ed," or " to whom he furnished the material," must be stated in the claim of lien.^- General rule. If it appears from the claim, either directly or by necessary inference, to whom the materials were fur- nished, or for whom the labor was performed, there is a sufficient compliance with this provision ; ^^ and likewise if " Palmer v. Lavigne, 104 Cal. 30, 32, 37 Pac. Rep. 775. "2 Kerr's Cyc. Code Civ. Proc., % 1187; Corbett v. Chambers, 109 Cal. 178. 183, 41 Pac. Rep. 873; Madera F. & T. Co. v. KendaH, 120 Cal. 182, 183, 52 Pac. Rep. 304, 65 Am. St. Rep. 117. Name of per.son to T^'hom material -was furnished must be stated in the notice of lien; and where such notice states that material was furnished to a person named, when in fact it was sold to a different person than the one named, it is fatally defective, and the lien cannot be enforced: Hogan v. Bigler (Cal. App., April 9, 1908), 96 Pac. Rep. 97. The name of the person to whom materials were furnished not being stated, as required by the code, the claim of lien cannot be the basis for a mechanic's lien: Id. See Jones v. Kruse, 138 Cal. 613, 617, 72 Pac. Rep. 146. See §§ 374 et seq., ante; § 411, post. Colorado. Where the claim conveys to the owner sufficient infor- mation as to the materials furnished, it may be adequate, although it does not expressly state that claimant furnished the same: Sickman V. Wollett, 31 Colo. 58, 71 Pac. Rep. 1107. Idaho. See Pacific States S. L. & B. Co. v. Dubois, 11 Idaho 319, 83 Pac. Rep. 513, 516. Nevada. See Skyrme v. Occidental M. Co., 8 Nev. 219, 237. Oregon. Barton v. Rose, 85 Pac. Rep. 1009; Getty v. Ames, 30 Oreg. 573, 48 Pac. Rep. 355, 60 Am. St. Rep. 835; Rankin v. Malarkey, 23 Oreg. 593, 32 Pac. Rep. 620, 34 Pac. Rep. 816; Dillon v. Hart, 25 Oreg. 49, 34 Pac. Rep. 817; Leick v. Beers, 28 Oreg. 483, 43 Pac. Rep. 658; Allen V. Elwert, 29 Oreg. 428, 44 ,Pac. Rep. 823, 48 Pac. Rep. 54; Curtis v. Sestanovich, 26 Oreg. 107, 37 Pac. Rep. 67. Washington. Hopkins v. Jamieson-Dixon M. Co., 11 Wash. 308, 317, 39 Pac. Rep. 815. And where the claims stated the name of the person "at whose request" claimants performed labor and furnished mate- rials, and that " at the special instance and request of the J. Co.. acting therein by J., its president, it furnished and delivered to said J. Co." certain merchandise, they were held sufTicient. See Sautter v. McDonald, 12 Wash. 27, 31, 40 Pac. Rep. 418. »3 As to materials furnished for building, see note 2 Am. & Eng. Ann. Cas. 683. Oregon. The claim must state directly or by necessary inference to or for whom the materials were furnished or labor performed: Barton 327 MECHAXICS' I.] ENS. § 382 the claimant puts enough in his claim to enable the owner to understand whether the claimant is an original contractor or a subclaimant, or if it shows that the claimant asserts a personal liability against the owner or against some other persons primarily, and against the owner's property as security therefor ; **•* provided that the owner is not preju- diced or misled thereby. ^^ Thus, while, under this provision, the contractual relation need not be stated, yet a statement of such relation in the claim may furnish the facts from which the name of the employer or purchaser is necessarily inferred. ^^ § 382. Same. Under void statutory original contract. Where the statutory original contract is void, the labor done and materials furnished are deemed to have been done and furnished at the personal instance of the owner, and the name of the owner may be inserted as that of the employer, or the person to whom the materials were furnished, instead of the V Rose, 85 Pac. Rep. 1009; Nottingham v. McKendrick, 38 Oreg. 495, 63 Pac. Rep. 822, 57 Id. 195; and see Getty v. Ames, 30 Oreg. 573, 48 Pac. Rep. 355, 60 Am. St. Rep. 835; DHlon v. Hart, 25 Oreg. 49, 44 Pac. Rep. 817, 823, 48 Id. 54. '* Malone v. Big Flat G. M. Co., 76 Cal. 578, 584, 18 Pac. Rep. 772. When statement shall show contract with contractor. Where the claim shows the contractual relation between the claimant and the owner to be that of an original contractor or subcontractor, it is suffi- cient: as, where the contract is that the contractor shall furnish so much labor and receive a certain sum per man, the liability being directly to the contractor, the claim of lien properly states the contract as being with such contractor, instead of with the laborers individually; but it is otherwise if such contractor simply acts the part of the conductor of an employment office: Malone v. Big Flat G. M. Co., 76 Cal. 578, 585, 18 Pac. Rep. 772. See " Original Contractor," §§ 45, 60, ante. But see " Unnecessary Statements," §§ 374 et seq., ante. »•■ West Coast L. Co. v. Apfleld. 86 Cal. 335, 341, 24 Pac. Rep. 993. A mistake in christian name of employer may not vitiate the claim Of lien, if he was sometimes known by the name stated in the claim: Jewell V. McKay, 82 Cal. 144, 145, 23 Pac. Rep. 139. The question was nrt fully decided, but went off on a point of practice, as the finding was not attacked by the specifications of error. See Harmon v. San Francisco & S. R. R. Co., 86 Cal. 617, 619, 25 Pac. Rep. 124. AVashin^ton. And where the employer was named " I. B. & L. Asso- ciation," instead of " I. B. & L. Company," the variance is immaterial, vhere the corporation is making the improvement, as it could not have been misled; but it w^as said that the rule might be different if the corporation had not contracted for the improvement: Installment B. & L. Co. V. \Ventworth, 1 Wash. 467. 25 Pac. Rep. 298. »« See § 391, post. § 383 mechanics' liens. 328 contractor, or other person to or for whom the same were furnished or done ; ■'' but, on the other hand, under such circumstances, it will not vitiate the claim if only the name of the person for whom the labor was actually performed or to whom the materials were actually furnished is given.®^ § 383. Same. Inferential statements. In accordance with the general principles laid down in the preceding sections, a statement from which the name of the employer or purchaser is necessarily inferred is sufficient. Contractual relation. Request. A claim which states that the labor in a mining claim was performed at the request of a person named is substantially a statement that he was employed by such person, and is sufficient in this respect.^** Indebtedness. A claim stating that claimant furnished materials under a contract with the contractors, naming them, by which they agreed to pay the market value thereof at the date of delivery, and that claimant duly gave a written notice to the owner, naming him, that he had agreed to fur- nish materials, as aforesaid, sufficiently states the names of the persons to whom the materials were furnished. ^"^ Where the claim states " that H. and J. W., who are the owners of said building and real estate, are indebted to us in the sum of nine hundred and thirty-four dollars and seventy cents, in gold coin, for materials furnished to and used by said H. and J. W. in the erection of said building," the claim sufficiently states by whom the contract w^as made and the persons to whom the material was furnished. ^°^ Where the claim states that certain work Avas performed for a person named, and that said person ordered certain extra work, and agreed to pay the reasonable value thereof, " McClain v. Hutton, 131 Cal. 132, 63 Pac. Rep. 182, 61 Id. 273. "8 McCIain v. Hutton, 131 Cal. 132, 63 Pac. Rep. 182, 622, 61 Id. 273. "3 Castagnetto v. Coppertown M. & S. Co., 146 Cal. 329, 80 Pac. Rep. 74. >Vashiii^on. An allegation that tlie labor was done at the request of the owner is equivalent to a statement that he was employed by him, and is sufflcient: Young v. Borzone, 26 Wash. 4, 66 Pac. Rep. 135, 421. i"« Russ L. & M. Co. V. barrettson, 87 Cal. 589, 595, 25 Pac. Rep. 747. "1 Germania B. & L. Assoc, v. Wagner, 61 Cal. 349, 353, 354. 329 COXTENTS OF CLAIM OF LIEN. §§ 384, 385 and that such reasonable value " of said labor and materials so done and furnished " was a sum mentioned, it is suffi- cient.^°2 § 384. Same. " Causing- " improvement. When the name of the employer or purchaser cannot be determined from the claim, in accordance with the rules set forth in the preceding sections, at least by necessary inference, it is ineffectual. Thus a statement in a claim that W. caused the construction of a dwelling-house is not in any sense a statement of the name of the person by whom the plaintiff was employed, and is insufficient. ^°^ § 385. Same. Name of agent. Under and subject to the rules laid down in the preceding sections, it is not necessary to set forth the name of a mere agent, if the character of the liability which the claimant intends to assert against the owner or his property otherwise sufficiently appears from the claim of lien.^°* '"2 Newell V. Brill, 2 Cal. App. 61, 63, 83 Pac. Rep. 76. Insufficient statement o£ claim. It is insufficient where the claim of the material-man, after stating- that the claimant had furnished materials which were actually used in the construction of the build- ing-, stated that P. is the name of the contractor, who, on or about the first day of March, 1894, as such contractor, and as agent of the owner, K., entered into a verbal contract with said M. Co., a cor- poration, by which said P. was to furnish materials for the construc- tion of said building; for such a statement does not show that plain- tiff furnished any materials to the contractor, but is consistent with their having been furnished to some other person from whom the contractor obtained them: IMadera F. & T. Co. v. Kendall, 120 Cal. 182, 183, 52 Pac. Rep. 304, 65 Am. St. Rep. 117. See Newell v. Brill, 2 Cal. App. 61, 63, 83 Pac. Rep. 76. >»' Wood V. Wrede, 46 Cal. 637. The court adds that it could not have been intended as such. Oregon. See Leick v. Beers, 28 Greg. 483, 43 Pac. Rep. 658. Naming person caii.sing improvement insufficient. Where the claim States that "by virtue of a contract hei-etofore made with W. W. Rose, . . . in the erection, material furnished, and labor on a certain dwell- ing-house, the ground upon which said house was built and erected being at the time the property of Mattie Rose, wife of W. W. Rose, wlio caused said dwelling-house to be erected and built." it is Insuf- ficient in this respect: Barton v. Rose, 83 Pac. Rep. 1009. '<" In connection ivitli tliis matter, the supreme court has said: "The case of McDonald v. Backus, 45 Cal. 262, contains the statement . . . that the notice of lien is required to state facts, and not mere conclusions of law. Tills was said to show that a notice of lien was sufficient if it gave the name of one member of the firm by which tlie claimant was employed, omitting the other members, and not giving §386 mechanics' liens. 330 § 386. Same. Two or more employers or purchasers. A claim was held valid against two tenants who erected a build- the firm name. Possibly that case was correctly decided. We express no opinion as to it. But we do not think that tlie broad statement as to conclusions of law can be maintained. According to it, if the owner sends his oflice-boy to order repairs upon a building, and the boy simply tells the laborer to make the repairs, without saying for whom, the notice of lien must give the name of the otfice-boy as that of the person by whom he was employed. And the result would be similar if the person who sent for the laborer was himself a con- tractor. What good would it do for the claimant to put in his notice tlie name of the contractor's offlce-boy, or that of any chance mes- senger, — say an American District Telegraph boy, — as that of the person by whom he was employed ? The word ' employed ' is not appropriate in such a connection. Nor is there anything in the nature of the case which would give such a meaning to the word. In our opinion, the intention was that the claimant should put enough in his notice of lien to enable the owner to understand whether the claimant was an original or a sub contractor: in other words, whether the claimant asserted that he contracted with the owner and had a personal claim against him, or whether he contracted with the contractor, and looked only to him and the property. The rights and duties of the two classes of claimants are materially different in several respects, and it is important for the owner to know which attitude the claimant assumes. But we sliould prefer not to lay down any rule about facts and conclusions of law": Malone v. Big Flat G. M. Co., 76 Cal. 578, 584, 18 Pac. Rep. 772. See "Contents in General," §370, ante. As to contractual relation, see §§ 390 et seq., post. Compare: §§ 374 et seq., ante. As a matter of .strict pleadin;;', a contract made by an agent should, perhaps, be alleged to have Ijeen made by the principal; but no such recognition of the maxim, " That which is done by another, he himself does," is requisite to the validity of a claim, and where the claim con- tained a statement that the owner agreed to pay the amount agreed to be paid for the work and materials, and that S. was the name of the contractor, who, " as such contractor, and as agent for and on behalf of said T. (defendant), entered into a contract with said M. (plaintiff), under and by which " the work was done and materials furnished, the words " as a contractor " are surplusage, and the claim is not vitiated thereby: Mclntyre v. Trautner, 63 Cal. 429, 430. See Slight v. Patton, 96 Cal. 384, 387, 31 Pac. Rep. 248 (transcript). In Hooper v. Flood, 54 Cal. 218, 221, the claim stated that tlie "said materials were furnished to A. P. for and as the agent of the said J. I.," and it was found by the court that A. F. was the contractor. No question seems to have been raised on the lien. In Arata v. Tellurium G. & S. M. Co., 65 Cal 340. 341. 4 Pac. Rep. 195, the claim stated that " I. L. is the name of the agent and super- intendent of said mining company, and ... as such agent and superintendent entered into a contract with claimant": held, suf- ficient. See Madera F. & T. Co. v. Kendall, 120 Cal. 182, 183, 52 Pac. Rep. 304, 65 Am. St. Rep. 117. Colorado. See Bitter v. Mouat L. & I. Co., 10 Colo. App. 307, 51 Pac. Rep. 519 (name of contractor, where contractor filed claim, not required, under act of 1883). Oregon. " Where a lien Is claimed a'gainst the property of one person, for materials furnished to and on account of another, the r 331 CONTENTS OF CLAIM OF LIEN. § 386 ing upon leased gTound, even though it appeared upon the face of the claim that the original charge was against one of them alone, and that the claimant did not know at the time that the other tenant was interested in the building, and that they were copartners, but learned the facts in the ease before the claim of lien was filed.^"" Where the claim states that the materials were furnished to H., and that claimants law requires the notice of the lien to state the name of the per- son to whom they were furnished; but where a lien is sought against the property of a person with whom the contract was made, and to whom the materials were furnished, it is sufficient to give the name of the owner as the person to whom they were furnished, although in fact they may have been ordered or received by an agent or employee of such owner. In such case, the act of the agent is the act of the principal": Allen v. Elwert, 29 Greg. 428, 433, 44 Pac. Rep. 823, 48 Id. 54. lu Osborn v. Logus, 28 Greg. 302, 320, 37 Pac. Rep. 456, 38 Id. 190, 42 Id. 997, it was held that the expression, " the name of the person to whom he furnished the materials," did not require that the con- tractual relations existing between the lien claimant and the owner should be stated; and the cases of Rankin v. Malarkey, 23 Greg. 593, 32 Pac. Rep. 620, 34 Id. 816; Curtis v. Sestanovich, 26 Greg. 107, 37 Pac. Rep. 67, and Willamette S. M. L. & M. Co. v. McLeod, 27 Greg. 272, 40 Pac. Rep. 93, holding to the contrary, are overruled as not being stare decisis. The AVashingtoD cases of Warren v. Quade, 3 Wash. 750, 29 Pac. Rep. 827, and Heald v. Hodder, 5 Wash. 677, 32 Pac. Rep. 728, were rejected as authority. See Washington note, § 391, post. See also Cross V. Tscharnig, 27 Greg. 49, 39 Pac. Rep. 540. In Curtis v. Sestanovicb, 26 Greg. 107, 37 Pac. Rep. 67, the claim set forth that the claimant had furnished materials which were used in constructing a certain building, "and that the materials so fur- nished to said S. and used in said building" consisted of, etc.; held, that it sufficiently states that the materials were furnished to S. So where the claim reads: "I, R., have, by virtue of a contract made with H., with K. and H., his contractors and agents, furnished materials and done work in plastering," the contractor being the agent of the owner under the statute, and the meaning being made plain by transposing some of these words: Rowland v. Harmon, 24 Greg. 529, 34 Pac. Rep. 357. And see Nottingham v. McKendrick, 38 Greg. 495, 57 Pac. Rep. 195. Washington. Where the claim states that the materials were furnished at the request of a certain person, as agent of B., as agent for eight others, it is insufficient for failing to show authority to bind such alleged principal: Northwest B. Co. v. Tacoma S. B. Co., 36 Wash. 333, 78 Pac. Rep. 996 (under 2 Ballinger's Ann. Codes and Stats., § 5900). ■»•"' West Coast L. Co. v. Apfield, 86 Cal. 335, 341, 24 Pac. Rep. 993. It will be noticed in this case, liowever, that there was a statement of the persons to whom the materials were furnished. The court say: "The defendant was not misled or prejudiced by reason of the claimant stating the whole fact in its notice of lien." And, on tlie other hand, in Tibbetts v. Moore, 23 Cal. 208, 215, under the statute of 1856, as amended, which did not require tlie claim of lien to § 386 mechanics' liens. 332 were employed by both H. and A. to furnish the same, it is sufficient; and it is no variance if the evidence shows that the materials were furnished to H., the contractor, and that N., the owner, originally contracted for them, and H,, by giv- ing an order for the payment, admitted his liability to pay for them, no injury having resulted to the owner.^°® But the claim is insufficient if it gives the names of several persons to whom different portions of the materials were furnished at different times, without any designation of what portion was furnished to each several!}- ."^ contain any names, it was held that where the claim states that the materials were furnished to A. & Co., when in fact they were furnished to A., this does not invalidate the lien. Leasehold estate .subject to mechanics' liens: See 2 Am. & Eng. Ann. Cas. 687, 3 Id. 1096. Same. Surrender by tenant will not defeat lien: 3 Am. & Eng. Ann. Cas. 1098. Oregon. See Osborn v. Logus, 28 Oreg. 302, 37 Pac. Rep. 456, 38 Id. 190, 42 Id. 997, citing Tibbetts v. Moore, supra. "« Reed v. Norton, 90 Cal. 590, 595, 26 Pac. Rep. 767, 27 Id. 426, and see Davis v. Livingston, 29 Cal. 283, 289. See "Materials Furnished," §87, ante; "Notice," §§486 et seq., post. In Arata v. Tellurium G. & S. M. Co., 65 Cal. 340, 341, 4 Pac. Rep. 195, the claim stated that " I. L. is the name of the agent and superintendent of said mining company, who, on or about the tenth day of November, 1882, as such agent and superintendent, entered into a contract with said B. A. K.," etc.; and it was held sufficient. In Slight V. Patton. 96 Cal. 384, 387, isl Pac. Rep. 248, the tran- script shows that the claim of lien stated: "That T. & G. are the names of the contractors, who, on or about ... as such contractors, and agents of said owners, entered into a contract with said Slight, under and by which said Sliglit was to perform certain labor anc? furnish certain materials therefor" (giving a statement of thp terms, time given, and conditions of the contract), "and that sair* contract has been fully performed on the part of said Slight": held a sufficient statement of the names of the persons by whom the claimant was employed and to whom he furnished the materials. New Mexico. Where the claim stated, "Claimant was employed to do said work by the Springer Land Association, C. N. Barnes, gen- eral manager, approved by C. C. Strawn, as president"; held, suffi- cient: Ford V. Springer L. Assoc, 8 N. M. 37, 52, 41 Pac. Rep. 541. 'Washington. A claim which states that the claimant was employed by two persons as contractors on the building, when in fact one was but a subcontractor, will not invalidate the lien, espe- cially in view of the fact that the claimant had been told by both that they were contractors for the erection of the building: McHugh v. Slack, 11 Wash. 370, 39 Pac. Rep. 674. "' Gordon H. Co. v. San Francisco & S. R. R. Co. (Gal., Oct. 4, 1889), 22 Pac. Rep. 406 (this is a strict construction of the statute). ColorE See § 365, ante. "» Wilson V. Nugent, 125 Cal. 280, 283, 57 Pac. Rep. 1008; Wagner v. Hanson. 103 Cal. 104, 37 Pac. Rep. 195. \VashinKton. The terms and conditions of the contract sliould also iiu-lude a suiUcient allegation of the materials furnished or work done to enable the owner independently to determine the bona fides of such contract and the reasonableness thereof: Warren v. Quade, 3 Wash. 750, 29 Pac. Rep. 827. § 389 mechanics' liens. 334 person is misled or deceived by the statement contained in the claim/^-' only a substantial compliance with the statute is required. ^^* For these reasons, a claimant can recover only upon the contract s^t forth in the claim of lien.^^^ § 389. Same. General rules. The statement of the terms of the contract must be substantially true in all essential par- ticulars ; otherwise the claim is ineffectual.^^*' The statute does not require the claimant to state Avhat is implied by law.^^^ A statement in the claim that the following is a statement of the terms, etc., of the contract must be taken 113 Person not being misled: NeweU v. Brill, 2 Cal. App. 61, 62, 8.1 Pac. Rep. 76; Bryan v. AbV)Ott, 131 Cal. 222, 224, 225, 63 Pac. Rep. 363. Person mi.sled: Wilson v. Nugent, 125 Cal. 280, 283, 57 Pac. Rep. 1008. Colorado. For benefit of owner, not being misled: Chicago L. Co. V. Newcomb, 19 Colo. App. 265, 74 Pac. Rep. 786. '" Castagnetto v. Coppertown M. & S. Co., 146 Cal. 329, 332, 80 Pac. Rep. 74. "3 San Francisco P. Co. v. Fairfield, 134 Cal. 220, 222, 224, 66 Pac. Rep. 255. "6 star M. & L. Co. v. Porter (Cal. App., Nov. 24, 1906), 88 Pac. Rep. 497; Wilson v. Nugent, 125 Cal. 280, 283, 57 Pac. Rep. 1008; Nofziger Bros. L. Co. v. Shafer, 2 Cal. App. 219, 220, 83 Pac. Rep. 284 (decided Nov., 1905, before amendment of 1907). The statement in the last two cases, that the claim, in this regard, must be true, that is, absolutely true, goes beyond what reason and authority warrant, especially since the enactment of § 1203a, Kerr's Cyc. Code Civ. Proe. Sufficient statements. Where the statement is that the materials were to be delivered in such quantities as might be directed during the progress of the construction of the building, and that claimant " was to be paid thereafter therefor, on demand of payment as to each delivery of any quantity on said property by him, the reason- able market value thereof," it Is sufficient: Snell v. Payne, 115 Cal. 218, 221. 46 Pac. Rep. 1069. See " Unnecessary Statements," §§ 374 et seq., post. Colorado. See Branham v. Nye, 9 Colo. App. 19. 47 Pac. Rep. 402. A claim not stating expressly that the materials ^-ere furnished by claimant, or by whom they were furnished, may be sufficient: Sickman v. Wollett, 31 Colo. 58, 71 Pac. Rep. 1107. AVashinston. And so where the claim states that the claimants were to furnish material and do the work necessary to the full completion of the painting of the building: Spears v. Lawrence, 10 Wash. 368, 38 Pac. Rep. 1049, 45 Am. St. Rep. 789. W'here the claim of a subclaimant set forth that materials were actually used in the construction of the building, and subsequently that the contract was for materials for the building, this is a sufficient statement that they were furnished to be used in the building: Fairhaven L. Co. v. Jor- dan, 5 Wash. 429, 32 Pac. Rep. 729. "' Jewell V. McKay, -82 Cal. 144, 151, 23 Pac. Rep. 139. 335 CONTENTS OF CLAIM OP LIEN, § 389 to mean the only terms which were in fact expressly agreed upon.^" It cannot be presumed, in the absence of allegation and proof, that the statement and conditions of the contract set forth in the claim did not include all the conditions of the contract.^^^ "s InipIicatiunH o£ law need not be stated. " The code does not require the notice to state implications made by law. For example, if there was nothing but a request for labor or materials, and a silent compliance with it, we do not think that a statement of the implied promise to pay what the labor or materials were reason- ably worth would be necessary. It seems to us that the statute requires only the agreement which is expressly made to be stated In the notice. . . . We think that the statement that ' the follow- ing is a statement of the terms,' etc., of the contract must be taken to mean the only terms which were in fact agreed upon": Jewell v. McKay, 82 Cal. 144, 152, 23 Pac. Rep. 139. A number of statements o£ the "terms, time given, and conditions of contracts " are set out in this opinion. See Goss v. Strelitz, 54 Cal. 640, 643; Golden Gate L. Co.' v. Sahrbacher, 105 Cal. 114, US, 38 Pac. Rep. 635, and see transcript and briefs on file. Xevada. See Lonkey v. Wells, 16 Nev. 271. "» Kelly V. Plover, 103 Cal. 35, 36, 36 Pac. Rep. 1020. See "Contents," §370, ante; -'Unnecessary Statements," §§374 et seq., ante. And so where the claim states tliat the '• following is a state- ment of the terms, time given, and conditions upon which said work and labor was performed, to wit, the same was to be paid for in lawful money of the United States when the work was completed," or that " the following is a statement of the terms, time given, and conditions upon which said materials as aforesaid were furnished, to wit, such materials were to be paid for when said alterations and repairs on said building were completed and flnished, in lawful money of the United States," these statements must be taken to mean the only terms which were in fact agreed upon: Jewell v. McKay, 82 Cal. 144, 147, 149, 152, 23 Pac. Rep. 139. AVashiugton. WHiere the claim set forth, in its statement of the terms of the contract, that the claimant was "to furnish the hard- ware and other like material" for a certain building, or "to fur- nish the lumber, sashes, doors, etc used, in the construction of said Lighthouse Block, at the agreed and contract price of $2,449.85," it was held sufficiently definite in that particular, it meaning, in the first instance, "all the hardware to be used in the building": Bolster v. Stocks, 13 Wash. 460, 43 Pac. Rep. 532, 534, 1099, which attempts to distinguish Tacoma L. Co. v. Wolff, 5 Wash. 264, 31 Pac. Rep. 753, 33 Id. 1055, in which the language employed in the claim was that the claimant should "furnish certain windows, doors, moldings, glass, and lumber for the inside finish of said building," as "there was nothing to indicate that all the windows, etc., were to be furnished under the contract." But in Bolster v. Stocks, supra, it was also held that where the claim stated that the claimants "furnished certain goods, wares, and merchandise, being iron, iron-work, galvanized iron, nails, paints, glass, and other build- ing material, which were reasonably worth and of the value of $1,646.56," it was held to be insufficient, and to fall within the rule § 389 mechanics' liens. 336 The statement of the terms, time given, and conditions of the contract may appear on the face of the claim to be fatally defective, or it may rest upon allegations and proof to show such defect. ^-° A general statement of the terms, time given, and condi- tions of the contract, only, is required, and all the details of the contract need not be stated.^^^ of Tacoma Lumber Co. v. Wolff, supra, although there was an itemized statement in the claim, which, however, it was said was indefinite as to quantity, and the item "material in bank-room" did not indicate even the kind of material; but it is there held that the languag-e, " to furnish the hardware and other like material for the construction," etc., means "all the material," and the rule of Tacoma Lumber Co. v. Wolff was characterized as one of "close construction," not to be extended. Where the claim stated that C. promised to pay for the materials sold, at certain prices, upon delivery, and that there was a delivery, and this was the substance of the contract as pleaded and proved, an averment of the answer setting up an agreement to deliver within a certain time, which the plaintiff failed to do, is a matter of defense, and until this defense is established, the contract price is presumed to be as claimed by the plaintiff: Washington M. Co. v. Craig, 7 Wash. 556, 35 Pac. Rep. 413. See Fairhaven L. Co. v. Jordan, 5 Wash. 729, 734, 32 Pac. Rep. 729; Mras v. Duff, 11 Wash. 36, 39 Pac. Rep. 267; United States S. L. & B. Co. v. Jones, 9 Wash. 434, 437, 37 Pac. Rep. 66; Bolster v. Stocks, 13 Wash. 460, 43 Pac. Rep. 532, 534, 1099. "« Jewell V. McKay, 82 Cal. 144, 151, 23 Pac. Rep. 139. See Castag- netto V. Coppertown M. & S. Co., 146 Cal. 329, 332, 80 Pac. Rep. 74. Washington. See Mras v. Duff, 11 Wash. 36, 39 Pac. Rep. 267; Ta- coma L. & M. Co. v. Kennedy, 4 Wash. 305, 30 Pac. Rep. 79. "1 Statement as to improvement. Where the claim stated that " said house was to be erected, to consist of five rooms, and to be finished in a workmanlike manner, for the agreed price of seven hundred and forty dollars; that, in addition, extra work for the agreed price of five dollars was performed"; the contract having provided for the payment of five hundred dollars as the work pro- gressed, and the balance when the house was finished, — the supreme court said: "The respondent contests the sufficiency of this notice, upon the ground that it does not state that the plaintiff agreed to furnish all the material and labor for the house (except painting), and does not state that the contract price was to be paid in instalments as the work progressed. The provision of § 1187 of the Code of Civil Procedure, that the notice of lien was to contain a statement of the ' terms, time given, and conditions of the contract,' is not to be construed as requiring a statement of all the details of the contract, but is to receive a reasonable construction, in view of the purpose for which it is manifestly required. . . . The present case is not one where the owner is brought into relation with the claimant by reason of labor performed for and materials furnished to another person, of which he has only such knowlfedge as is given by the notice of lien which is filed. Here the owner contracted for the improvement directly with the person claiming the lien, and therefore had full knowledge of the terms of the contract. It is not contended that the claimant made an erroneous statement of 337 CONTENTS OP CLAIM OF LIEN. § 390 § 390. Same. Showing contractual indebtedness. Apart from the question of the time of payment, and the other essentials of the claim, the statement required by the provis- ion in relation to the terms, time given, and conditions of the contract is sufficient if it shows that a contract was entered into, and gives such a declaration of its terms as to show the indebtedness claimed.^-- It is not necessary to set forth the contract Avith as much particularity as in a pleading ; ^-^ the terms of the contract in his notice of lien, or that there was any time given, or condition thereto, other than as stated in the notice, the claim being that he did not set forth that the contract price was to be paid in instalments as the work progressed. He did, however, state the correct amount of the contract price, and the amount that had been paid thereon, and this exceeded the amount of these Instal- ments. We are of the opinion that this was a substantial com- pliance with the above provision of § 1187, and entitled him to enforce the lien": McGinty v. Morgan, 122 Cal. 103, 54 Pac. Rep. 392. But see " Purpose of Claim," § 365, ante. The court, in it.«* reasoninj;- that the claimant contracted directly with the owner, seems to overlook the fact that the claim is filed for the information of other persons than the owner, such as other lien claimants and encumbrancers, who may have no knowledge of the contract except by such claim of lien. Colorado. A general statement only required: Branham v. Nye, 9 Colo. App. 19. 47 Pac. Rep. 402. »^ McClain v. Hutton, 131 Cal. 132, 137, 63 Pac. Rep. 182, 622, 61 Id. 273. '-• Showing as to tiiiantity, time, value, etc. In this connection the supreme court has said: "There are many contracts which deal with details of quantity, time, value, etc. But even with regard to such contracts it seems questionable whether it is necessary for the notice of lien to set forth items. Even in a pleading ' it is not necessary for a party to set forth the items of an account therein alleged': Kerr's Cyc. Code Civ. Proc, §454. And we cannot think that the statements in a notice of lien are required to be made with greater fullness or formality than is necessary in a pleading. We are not prepared to say that as much fullness or formality is re- quired. And it seems probable that even in the case of a contract which went into details of amount, etc., a general statement thereof would be sufficient in the notice of lien. But it is not necessary to e-press a definite opinion upon this question; for it is obvious that there are many contracts which do not go into details of amount, time, value, etc. For example, a contractor may go to the owner of a -lumber-yard and say, ' I am building such and such a building. Will you let me have lumber for it as I need it, at ruling rates ?' If this should be agreed to, and the lumber supplied, without any- thing further being said, it seems plain that an itemized account would not be involved in a statement of the ' terms, time given, and conditions of the contract.' So if a laborer should be employed at a fixed rate for an indefinite period, the number of days he worked would not be a part of the contract, and consequently would not have to be stated in the notice. So if he should be employed with- out a fixed rate of compensation, such compensation could not be said to be a part of the 'terms, time given, or conditions' of the contract": Jewell v. McKay, 82 Cal. 144, 151, 23 Pac. Rep. 139. Mech. Liens — 22 § 891 mechanics' liens. 338 and, of course, where the statement of the contract would be sufficient as a complaint in indebitatus assumpsit, it is sufficient.^-"' § 391. Same. Setting out terms of original contract. The expression " his contract " refers to the contract of the claimant under which he performed the labor or furnished the materials ; and, of course, in the case of the original con- tractor, the terms, time given, and conditions of the original contract must be set forth ; but in the case of subclaimants, no reference to such original contract in the claim of lien is necessary.^^^ 12* McClain v. Hutton, 131 Cal. 132, 136, 63 Pac. Rep. 182, 622, 61 Id. 273. 1=5 See NeweH v. Brill, 2 Cal. App. 61, 62, 83 Pac. Rep. 76. Colorado. The terms and conditions of the subcontractor's con- tract should be set out by him: Harris v. Harris, 9 Colo. App. 211, 47 Pac. Rep. 841; but he is not required, under this language, to set out the contract of the original contractor with the owner: Harris V. Harris, 9 Colo. App. 211, 47 Pac. Rep. 841; nor refer to the origi- nal statutory contract: Chicago L. Co. v. Newcomb, 19 Colo. App. 265, 74 Pac. Rep. 786. A statement that "on or about the tenth day of July said John H. Harris, the owner, agreed with claimants that if they would do the plastering and furnish materials therefor, he would pay claim- ants the sum of two hundred and fifty dollars," if proven, will show an original contract between the claimant and the owner: Harris V. Harris. 18 Colo. App. 34, 69 Pac. Rep. 309. New Mexico. Subcontractor is not required to set out the terms of the original contract: Post v. Miles, 7 N. M. 317, 34 Pac. Rep. 586. Utah. Claim of subcontractor need not state the terms of the original contract, but only the terms, time given, and conditions of his own contract: Brubaker v. Bennett, 19 Utah 401, 57 Pac. Rep. 170 (under Rev. Stats., §1386). See, generally, Morrison M. Co. v. Willard, 53 Pac. Rep. 832, where it is held that the claim "should contain and set out, so far as the claimant is able to ascertain and disclose it, the contract between the owner and the contractor," since the lien of the subcontractor depends upon the terms of tlie original contract. This is not in line with the better reasoning of the cases holding the opposite rule. But see reasoning in Morrison v. Inter Mountain S. Co., 14 Utah 201, 46 Pac. Rep. 1104. Wa.shington. Seattle L. Co. v. Sweeney, 33 Wash. 691, 74 Pac. Rep. 1001 (under 2 Ballinger's Ann. Codes and Stats., §5904). See "Un- necessary Statements," § 374, ante. "Washington note. As to terms and conditions of the contract, see United States S. L. & B. Co. v. Jones, 9 W^ash. 434, 37 Pac. Rep. 666. It was held not sufficient to show that the work was performed and materials furnished under a subcon- tract, but the terms and conditions of such subcontract should be shown: Gates v. Brown, 1 W^ash. 470. 474, 25 Pac. Rep. 114 (1881). As to neee.ssity of subolainiant sliovring contractual relation between the owner and tbe employer, see Griffith v. Maxwell, 20 Wash. 403, 55 Pac. Rep. 571; McHugh v. Slack, 11 Wash, 370, 39 Pac. Rep. 339 CONTENTS OF CLAIM OF LIEN. § 392 § 392. Same. Reference to other papers. A reference in a claim to a valid filed statutory original contract, for cer- tain of the terms, time given, and conditions of the con- tract, — for instance, the times when payments become due, — does not render it invalid, simply because it does not repeat the provisions of the original contract, as all parties 674; Hopkins v. Jamieson-Dixon M. Co., 11 W^ash. 308, 316, 39 Pac. Rep. 815. The contractual relation between the owner and contractor-s is sufficiently stated by averring-, after stating the name of the owner and that she caused the building to be erected, that certain persons named are the contractors for the construction of said building: Sautter v. McDonald, 12 Wash. 27, 40 Pac. Rep. 418. A claim which sets out that S. is the name of the owner and reputed owner of said premises, "and caused said building or structure to be built and erected; that R. is the name of the con- tractor, who, as such contractor, made and entered into a contract with C, under and by which hardware was to be furnished for said building, sufficiently states the relation of principal and agent between the owner and contractor": Collins v. Snoke, 9 Wash. 566, 38 Pac. Rep. 161 (under Gen. Stats., §1667); Sautter v. McDonald, 12 Wash. 27, 31. In the former of the two cases last cited, it was said: •' In Warren v. Quade, 3 Wash. 750, 29 Pac. Rep. 827, it was held that a notice is defective which shows that the goods were fur- nished to, or labor performed for, a person named in the notice, and not to or for the owner directly, when the notice fails to show such a relation existing between the person to whom they were fur- nished and the owner as will bind the owner under the lien laws. This doctrine, of course, cannot be gainsaid; but in that case it nowhere appeared in the notice that the defendant and the owner had any contractual relations whatever with the parties who con- structed the building. ... It would be idle for the notice to state, in terms, that R. was the agent of S.; for it is the law, and not the agreement of the parties, which makes the agent, and the notice would not obtain any additional strength by stating a conclusion of law." And it was also said: •'While this court would not be inclined to give the lien statutes more strict construction than was given in Warren v. Quade, supra, and in the subsequent decisions which were governed by it, we think it is not necessary to relax the rule there laid down, to sustain the notice in this case." In Fairhavcn Land Co. v. Jortlaii, 5 Wash. 729, 732, 32 Pac. Rep. 729, the case of Warren v. Quade, supra, was also distinguished, by saying that in the latter case the claim stated the name of the owner of the land and that another person was his contractor, but did not aWege the contractual relation between the two, whereas in the for- mer case it also recited that the contractor, as •' agent " of the owner, contracted for the materials. The case of Warren v. Quade was also followed in Heald v. Hodder, 5 Wash. 677, 32 Pac. Rep. 728; and both of these cases were criticized in the Oregon and New Mexico cases cited in a note in § 385, ante. In Warren v. Quade. supra, it was also said: "We think that the statement of the terms and conditions of the contract should show that such a relation existed between the firm to which they were furnished and the owner as will bring it within the list of those who, under the lien law, could, for the purposes thereof, bind the owner." § 393 mechanics' liens. 840 interested can readily ascertain from the record what the contract provides upon that siibject.^-^ And it seems that where the claim recites that the claimant entered into a con- tract with the original contractor, under and by virtue of which he was to do all the painting, staining, varnishing, and tinting, and to furnish all necessary materials as specified in the plans and specifications of the building, which were not set out in the claim, it is not fatally defective. ^-^ § 393. Same. Express and implied agreement as to price. "Where the agreement as to price is express, the price agreed upon must be stated, and it is insufficient if the reasonable value alone be set forth; and, on the contrary, where no express contract is made as to price, a statement of an agreed price only is fatal to the lien.^^^ But where the claim states the contract price of the materials, it is not vitiated by the additional statement of the reasonable value thereof.^^'' Statement as to price of labor. Where a claim states that the labor was to be performed " at the usual rates," it is an- "« San Diego L. Co. v. "Wooldredge, 90 Gal. 574, 577, 27 Pac. Rep. 431. New Mexico. So a reference to a copy of the contract attached to the claim is sufficient: Ford v. Springer L. Assoc, 8 N. M. 37, 41 Pac. Uep. 541. >2' Slight V. Patton, 96 Cal. 384, 387, 31 Pac. Rep. 248. The question involved, however, was one of pleading. Washington. In a similar case it was said: " If it clearly appeared from the statement of the terms of the contract that the plans and specifications were necessary to an understanding thereof, and they were not attached to tiie notice of lien, nor their substance stated therein, the sufficiency of such notice might well be doubted. . . . Such statement, though only a brief description of such terms and conditions, is sufficient, in the absence of proof, that such brief description is not such as to enable the contract to be fully understood. When the statement is made that the plans and specifications are briefly described as follows, and thereafter are given the terms and conditions, it must be assumed, in the absence of proof to the contrary, that the substance of such plans and specifica- tions is as therein stated. The notice of lien was sufficient, and the complaint stated a cause of action": Mras v. Duff, 11 Wash. 36, 39 Pac. Rep. 267. The statute itself (Laws 1893, p. 32), however, did not expressly require any statement of "the terms and conditions of the contract." ^ See "Variances," §§835 et seq., post. "9 Neihaus v. Morgan (Cal., June 2, 1896), 45 Pac. Rep. 255. Elxpress price. See Nofziger Bros. L. Co. v. Shafer, 2 Cal. App. 219, 220. 341 CONTENTS OF CLAIM OF LIEN. § 393 other way of stating " for wliat it was reasonably worth." ^"^ And where the claim states that the price agreed upon was " the usual price, and what said materials were reasonably worth at their place of business," it states, in legal effect, that the materials were to be paid for on delivery at what they were reasonably worth ; and it is not necessary to prove an express agreement to pay the reasonable worth of the materials."^ No statement as to reasonableness of agreed price. Where the lien stated nothing as to the reasonable or other value or agreed price of the work and materials, except the agreed price as to part of the work, and the contract is entire, and the testimony showed that, except as to one item of small 130 McClain v. Hutton, 131 Cal. 132, 137, 63 Pac. Rep. 182, 622, 61 Id. 273. Where the claim states that the owner entered into the contract with certain conti'actors, by which they agi-eed to erect and finish for him a building- on a lot, and that the plaintiff furnished the materials under a contract with the contractors, by which they agreed to pay the market value thereof at the date of delivery, in cash, and the whole value and the balance unpaid are stated, it is a sufficient statement of the terms, time given, and conditions of the contract: Russ L. & M. Co. v. Garrettson, 87 Cal. 589, 595, 25 Pac. Rep. 747. It seems from this decision that the "market value" is equiv- alent to the "reasonable value." Market value. See Star M. & L. Co. v. Porter (Cal. App., Nov. 24. 1906), 88 Pac. Rep. 497; Buell & Co. v. Brown, 131 Cal. 158, 162, 63 Pac. Rep. 167. See "Variances," §§835 et seq., post. "> Reed v. Norton, 90 Cal. 590, 597, 26 Pac. Rep. 767, 27 Id. 426. See La Grill v. Mallard, 90 Cal. 373, 375, 27 Pac. Rep. 294 (claim not set out in opinion or record). See § 374, ante. Where the claim sets forth tlie contract iirice as "the usual price and what said materials were reasonably worth at their place of business," it is. In effect, a statement of a contract on a quantum meruit; and while it might have been unnecessary to set out such a contract in the claim of lien under the decision in Jewell v. McKay, 82 Cal. 144, 151, 23 Pac. Rep. 139, yet such decision does not announce the principle that where such a course is pursued, a party shall not be held to have filed a claim based upon a quantum meruit: Reed v. Norton, 90 Cal. 590, 597, 26 Pac. Rep. 767, 27 Id. 426. See La Grill v. Mallard, 90 Cal. 373, 375, 27 Pac. Rep. 294 (claim not set out in opinion or record). See " Evidence," §§ 764 et seq., post. Washington. Where the claim made reference to a bill of items, setting forth in detail all the materials furnished under the contract for use in the building, together with the reasonable value thereof, no price having been agreed upon, it contains a sufficient statement of the terms of the contract: Washington R. P. Co. v. Johnson, 10 Wash. 445, 39 Pac. Rep. 115. § 394 mechanics' liens. 342 amount, there was no agreed ijriee for any labor, or labor and materials, it was held that there is a fatal variance as to all/=*- § 394. Same. Items of account. It seems to be estab- lished that, Avhether the contract for the work and materials is for a sum in gross,^^^ or otherwise/^* it need not set out the items of the account, under this provision of the stat- ute.^^^ Where there has been a novation of the original con- i3» Wagner v. Hansen, 103 Cal. 104, 107, 37 Pac. Rep. 195. 133 Heston v. Martin, 11 Cal. 42 (1855), where the statute required the filing of a just and true account of the demand due him after deducting all proper credits and offsets. See Hicks v. Murray, 43 Cal. 515, 522, dissenting opinion of Crockett, J. Statement of terms of contrast, when sufficient. Where the claim states the time of contract, the material furnished, the agreed price, either in the aggregate, or, in the case of labor, the rate per day and the number of days' labor performed, it is a sufficient statement of the terms of the contract: McClain v. Hutton, 131 Cal. 132, 63 Pac. Rep. 182, 61 Id. 273. It is sufficient where the claim unequivocally states that the mate- rials furnished were used on a building, the kind of materials fur- nished whether stone, iron, etc., or the price of the several items: McClain v. Hutton, 131 Cal. 132, 136, 63 Pac. Rep. 182, 622, 61 Id. 273. Description o£ the materials furnished, as " nails, spikes, iron, steel picks, shovels, and other like material," held to be too indefinite and uncertain to sustain a lien, in Gordon H. Co. v. San Francisco & S. R. R. Co. (Cal., Oct. 4, 1889), 22 Pac. Rep. 406, which must be con- sidered overruled by later decisions. Hawaii. As to general description of materials being sufficient unde'r an entire contract to furnish . all materials for building, see Allen v. Redward, 10 Hawn. 151, 161 (dictum). Construction of word "material" as used in claim: Allen v. Red- ward, 10 Hawn. 151, 160. Washington. It is not necessary to set out the amount for labor and the amount for material, where the contract is in gross: Spears V. Lawrence, 10 Wash. 368, 38 Pac. Rep. 1049, 45 Am. St. Rep. 789. 134 "Where claim stated that " labor was performed by the day, at the agreed price of $2.75 per day, between the first day of August and the twentieth day of September, 1901," on a certain mine described in the claim, and that the amount was justly due and owing, it was held to be a sufficient statement as to the claim of a laborer, nothing being uncertain or in doubt: Castagnetto v. Coppertown M. & S. Co., 146 Cal. 329, 332, 80 Pac. Rep. 74. 135 Brennan v. Swasey, 16 Cal. 141, 142. 76 Am. Dec. 507; Selden v. Meeks 17 Cal. 128 (1862); same language as that construed in Heston v. Martin, supra. See Golden Gate L. Co. v. Sahrbacher. 105 Cal. 114, 118, 38 Pac. Rep. 635 (transcript and briefs), and Wagner V. Hansen, 1()3 Cal. 104, 106, 37 Pac. Rep. 195. See ■• Demand," §§ 375 et seq., ante. Sufficiency of statement of claim. Where the claim of lien states that the owner is indebted to the claimant in a certain sum for materials furnished to and used by said owners between certain 343 CONTENTS OP CLAIM OF LIEN. § 395 tract, it is not necessary for the claimant to segregate the materials furnished to each contractor, in the claim of lien filed, and if the proof segregates the amount furnished to each of them, and no injury can possibly result to the owner, the claim is sufficient. ^^*' Amount of entire contract price, if there be any, however, must be truly stated in the claim; for, where the ownier is not a party to the contract, he has a right to be informed of the facts upon which the claimant claims a lien upon the property 137 § 395. Same. Nature of labor. It has been held that the terms of the contract as to the nature of the labor must be correctly stated in the claim.^^'^ Thus where, as a matter of dates, and simply aUuded to the fact that the material furnished was lumber, it was held a sufficient statement of the character of the materials and the quantities: Germania B. & L. Assoc, v. Wag-ner, 61 Gal. 349, 354. See § 375, ante. Hawaii. Items of account not required: Allen v. Redward, 10 Hawn. 151, 160. Nevada. Lonkey v. Wells, 16 Nev. 271. AVashington. But see Tacoma L. & Mfg. Co. v. Wolff, 5 W^ash. 264. 31 Pac. Rep. 753, 33 Id. 1055, in which it was held that quantities should be specified, and the subclaimant's claim should be sufficiently definite to apprise fairly the owner of what he is charged with, what kind of material, and what the same were furnished for; Tacoma L. & M. Co. V. Kennedy, 4 Wash. 305, 30 Pac. Rep. 79. See also United States Sav. L. & B. Co. v. Jones, 9 Wash. 434, 439, 37 Pac. Rep. 666. Terms and conditions. Sufficiency of statement of. Where the statute required a " statement " of the terms and conditions of the contract, it was said: "The notice should certainly contain a state- ment of the terms and conditions of the contract, if founded upon an express contract, and if upon an implied one, then a statement of the full amount, and what for; if for different things, such as labor and materials, then the amount claimed for each, and in all cases a statement of what has been paid to the claimant thereon. We do not decide that it is necessary to give an itemized statement in the nptice, where the contract or claim can be fairly understood without It. It would be a better and safer practice so to do, however, especially where the lien is claimed by any one other than the original con- tractor": Gates V. Brown, 1 Wash. 470, 25 Pac. Rep. 914. "8 Harmon v. San Francisco & S. R. R. Co., 86 Cal. 617, 619, 25 Pac. Rep. 124; Gordon H. Co. v. San Francisco & S. R. R. Co., 86 Cal. 620, 623, 25 Pac. Rep. 125. "' Santa Monica L. & M. Co. v. Hege, 119 Cal. 376, 381, 51 Pac. Rep. 555; but, as before stated, other lien claimants are interested in knowing the facts. ^^ See "Nature of Labor," §§ 130 et seq., ante. § 396 mechanics' liens. 344 fact, the work is " to raise up, move back, and repair " two houses, and furnish material therefor, and the claim is un- certain as to whether it is a contract to " erect " and furnish materials for one or two buildings, the claim is insufficient.^^^ Where the claim of lien states that the claimant " was to do the carpentering-work on said building or structure known as a quartz-mill, as aforesaid, for wages, at three dollars per day, and said wages were payable on demand," it is a suffi- cient statement, under these facts.^*° § 396. Same. Dates. While it is not thought to be necessary to set forth the date of the contract,"^ where dates between which materials were furnished are stated in the claim,"^ or where the date is mentioned, but is left uncertain, as, " on or about the first day of July," the claimant cannot recover for materials furnished on the 2-itli of May of the same year ; ^*^ the general principle being, that, while items of an account are, in general, not required, still the claimant cannot recover for materials not included in the claim of lien.i" "» Eaton V. Malatesta, 92 Cal. 75, 28 Pac. Rep. 54, disting^uished in Ward V. Crane, 118 Cal. 676, 677, 50 Pac. Rep. 839, where the claim, complaint, evidence, and findings all showed the work to be the "erection" of a building, although the work consisted in practi- cally remodeling the building. See § 411, post. "0 Corbett v. Chambers, 109 Cal. 178, 179, 185, 41 Pac. Rep. 873 (see record); Castagnetto v. Coppertown M. & S. Co., 146 Cal. 329, 332, 80 Pac. Rep. 74. Held sufficient, where claim stated that the labor was performed by the day, on a certain mine described, at the agreed price of $2.75 per day, between August 1 and September 20, 1901, and that the amount is justly due and owing. 1" See § 374, ante. 1" Goss V. Strelitz, 54 Cal. 640, 644. Montana. Time of furnishing materials, when shipped: See McElwen V. Montana P. & P. Co. (Mont.), 90 Pac. Rep. 359. Oregon. Contra: Allen v. Elwert, 29 Oreg. 428, 44 Pac. Rep. 823, 48 Id. 54. "3 See Santa Monica L. & M. Co. v. Hege (Cal.), 48 Pac. Rep. 69. The opinion on rehearing, however, did not consider this point. See s. c. 119 Cal. 376, 51 Pac. Rep. 555. See "Uncertainty," §411, post. 1" Goss V. Strelitz, 54 Cal. 640, 643; Davles-Hende"rson L. Co. v. Gottschalk, 81 Cal. 641, 647, 22 Pac. Rep. 860. Oregon. But where the claim contains a lumping charge of the amount demanded, and there is no means of ascertaining from the claim itself the quantity and value of non-lienable claims, the lien is defeated: Harrisburg L. Co. v. Washburn, 29 Oreg. 150, 44 Pac. Rep. I 345 CONTENTS OP CLAIM OF LIEN. § 397 § 397. Same, " Time given." ^*^ The expression, " time given," as used in the provision of the statute requiring the " terms, time given, and conditions " of the contract to be stated, refers to the time of payment as agreed on and ex- pressed in the contract of the claimant. If no time of pay- ment is stated in the contract, it is presumed that no time was given.^*® The law construes such contract as requiring payment upon completion of claimant's contract; and no time need be stated in the claim of lien.^*'^ 390; Allen v. Elwert, 29 Greg. 428, 44 Pac. Rep. 823, 48 Id. 54. See Dalles L. & Mfg. Co. v. Wasco W. Mfg. Co., 3 Greg. 527; Kezartee v. Marks, 15 Greg. 529, 16 Pac. Rep. 407; Williams v. Toledo Coal Co., 25 Greg. 426, 36 Pac. Rep. 159, 42 Am. St. Rep. 799. Reason for the rule. " For a court cannot from oral evidence separate items for which a lien is given from those for which no lien can be acquired": Harrisb.urg L. Co. v. Washburn, supra. Utah. Likewise as to statement, under § 12, of intention to per- form labor or furnish material: Morrison v. Carey-Lombard Co., 9 Utah 70, 33 Pac. Rep. 238 (1890). "^ See, generally, §§ 387 et seq., ante. Colorado. " Even if the debt had not matured, by reason of credit having been extended for a specific time, this would not, as is well known, have destroyed the right of the creditor to secure himself by initiating a lien": Bitter v. Mouat L. & I. Co., 10 Colo. App. 307, 343, 51 Pac. Rep. 519 (1889). AA'a-shington. See Hopkins v. Jamieson-Dixon M. Co., 11 Wash. 308, 317, 39 Pac. Rep. 815. i*« McClain v. Hutton, 131 Cal. 132, 137, 63 Pac. Rep. 182, 622, 61 Id. 273. "' When no time of iiayment Tvas stated in the contract, the law construed the contract to require payment upon the completion of the work, and tlierefore the time of payment, althougli not the date. is fixed: Bryan v. Abbott, 131 Cal. 222, 224, 225, 63 Pac. Rep. 363. "Time given." In reference to this expression, the supreme court has said: "The words of the statute, 'time given,' in our judgment, mean the time of payment for the work and labor performed and materials furnished, as agreed on and expressed in the contract. As said above, we cannot say that the contract is not accurately stated; that is, stated as made and agreed on. If this is so, no distinct time was agreed on, but the time of payment was left to the rule fixed by the law on such a state of facts. When tliis is the case, no time is given, in contemplation of law, and the requirem^ent that the ' time given ' must be stated does not apply. If the words ' time given ' refer to the time agreed on for the completion of the contract, and no period of time for such completion is fixed by the contract, but such time is allowed as tlie law gives, the same rule applies, and no time need be stated in the claim": Hills v. Ghlig, 63 Cal. 104. See Jewell v. McKay, 82 Cal. 144, 152, 23 Pac. Rep. 139; California P. W. V. Blue Tent Consol. H. G. M. (Cal.), 22 Pac. Rep. 391. But see Hooper V. Flood, 54 Cal. 218, 221. Statement of claim is suflieient where the statement is that tlie price of all tlie materials furnished shall be due on the delivery of the same: Cohn v. Wright, 89 Cal. 86, 89, 26 Pac. Rep. 643. § 398 mechanics' liens. 346 Partial payments. "Where the claim of lien states that the amount of partial payments was not fixed in the contract, the claimant could not insist, under such contract, upon any- specified sums being paid before the final payment became due after the completion of the contract, when all became due; and such statement of claim seems to be a substantial compliance with the statute. ^*^ § 398. Same. " Cash." AYhere the claim states " that the terms, time given, and conditions of said contract are and were cash," the court said that the word " cash," in this connection, means nothing; that its common meaning is " money," and sometimes " ready money" ; and that the word " credit," similarly placed, would throw as much light on the subject.^*" But where the claim states : " The following is a statement of the terms, time given, and conditions of said contract, to wit : 50 M. 1% P. Laths, one hundred and seventy-five dollars, [stating each item of the claim] ; terms cash on completion of contract," — the time and manner of payment are expressed, and it cannot be presumed, in the absence of allegation and proof, that this did not include all the conditions of the contract.^^° Likewise, it is sufficient where the claim contains the statement, " that the terms of payment for said labor were cash as soon as said labor was performed " ; ^^^ or, " cash upon demand, in gold coin of the United States " ; ^^- or, an agreement to pay the market value at the date of delivery, " in cash." ^^^ i« San Diego L. Co. v. W^oolredge, 90 Cal. 574. 578, 27 Pac. Rep. 431, 432. i« Hooper v. Flood, 54 Cal. 219, 221; but the opinion does not show whether the word "cash" was actually used in the contract, or whether there was any time actually given. See also Golden Gate L. Co. V. Sahrbacher, 105 Cal. 114, 118, 38 Pac. Rep. 635 (transcript and briefs). 15* Kelly V. Plover, 103 Cal. 35, 36, 36 Pac. Rep. 1020. 151 Tredinnick v. Red Cloud M. Co., 72 Cal. 78, 80, 13 Pac. Rep. 152. See Kelly v. Plover, 103 Cal. 35, 36, 36 Pac. Rep. 1020. 1=2 Blackman v. Marsicano, 61 Cal. 638, 640, aistin^uished from Hooper v. Flood, 54 Cal. 219, 221: and see Kelly v. Plover, 103 Cal. 35, 36 Pac. Rep. 1020. >"^ Russ L. Co. v. Garrettson, 87 Cal. 589, 595, 25 Pac. Rep. 747 (the statement also showed the whole value of the materials furnished and the balance unpaid)." 3-i7 CONTEXTS OF CLAIM OF LiEN. § 399 § 399. Description of property. In general.''* The code provision/^" like the meehanic"s-lien statutes generally, provides that the claim of lien must contain a " description of the property to be charged with the lien, sufficient for identification." Where the claim contains no description of the property upon which a lien is sought to be foreclosed, although the intention was manifest, the omission is fatal; ^^* 1^ GeneraUy, see Georges v. Kessler, 131 Cal. 183, 63 Pac. Rep. 466; Union L. Co. v. Simon (Cal. App., March 13, 1906), 89 Pac. Rep. 1077, 1078. As to description of property in claim, see note 11 L. R. A, 740. Oklaiionia. See El Reno E. L. & T. Co. v. Jennison, 5 Okl. 759, 50 Pac. Rep. 144. Utali. See Culmer v. Clift, 14 Utah 286, 47 Pac. Rep. 85. 155 Kerr's Cyc. Code Civ. Proc, S 1187. 'S" Penrose v. Calkins, 77 Cal. 396, 19 Pac. Rep. 641. Under statute requiring; ''correct" description (1855), the follow- ing was held not sufficient: "A dwelling-house lately erected by me for J. W. Conner, situated on Bryant Street, between Second and Third streets, in the city of San Francisco, on lot ." "This is not such a description," said the court, "as is contemplated by the statute; there are a number of lots on Bryant, between Second and Third streets, to any one of which it would apply, as well as the one in question. The fact that Conner oWned no other dwelling on Bryant Street, we think immaterial; besides, it does not appear from plain- tiff's notice, nor is it shown, that Payson, who is an innocent pur- chaser for a valuable consideration, was aware of it": Montrose v. Conner, 8 Cal. 344, 347. See Tibbetts v. Moore, 23 Cal. 208, 213. And also where the owner refers to any real estate in the claim of lien, as follows: "That certain lot and parcel of land situated in said county of Nevada, state of California, and sought to be charged with this lien, as follows, to wit," and this was not followed by a particu- lar description, it was held to be absolutely no description of the property: Penrose v. Calkins, 77 Cal. 396, 19 Pac. Rep. 641. Colorado. And so where no state, county, or city was mentioned ("plat 2, in block 13, of Harman's Subdivision"): Sayre-Newton L. Co. v. Park, 4 Colo. App. 482, 36 Pac. Rep. 445. See Anderson v. Bing- ham, 1 Colo. App. 222, 28 Pac. Rep. 145. Montana. A description in the notice of lien cannot be supplied by oral evidence, but an ambiguity may be explained and the premises identified. Hence a description of lot 14 cannot sustain a lien for material furnished for the erection of a building on lot 13, although the particular description is preceded by a reference to " that certain frame building and outhouses erected " upon the same, and it is alleged that lot 13 is the only one upon which defendant had build- ings. Some stress was laid on the custom of describing land in cities b.\- lots, according to some recorded plat: Goodrich L. Co. v. Davie, 13 Mont. 76, 32 Pac. Rep. 282 (under Comp. Stats., §1371). Oregon. Morehouse v. Collins, 23 Oreg. 138, 31 Pac. Rep. 295. W'a.shington. See Hopkins v. Jamieson-Dixon M. Co., 11 Wash. 308, 316; Warren v. Quade, 3 Wash. 750, 29 Pac. Rep. 827 (Gen. Stats., $ 1667); Tacoma L. & M. Co. v. Kennedy, 4 Wash. 305, 30 Pac. Rep. 79; Mount Tacoma M. Co. v. Cultum, 5 Wash. 294; Young v. Howell, 5 Wash. 239, 31 Pac. Rep. 629. §399 MECHANICS LIENS. 348 but the courts have been very liberal in upholding imperfect descriptions/^^ Before the enactment of section twelve hundred and three a,^^^ the statute did not even require a technical description, but only one " sufficient for identification." ^^° 15' Penrose v. Calkins, 77 Cal. 396, 19 Pac. Rep. 641. Colorado. Gary H. Co. v. McCarty, 10 Colo. App. 200, 50 Pac. Rep. 744. 13S Kerr's Cyc. Code Civ. Proc, § l::o3a. i°» Brunner v. Marks, 98 Cal. 374, 375, 377, 33 Pac. Rep. 265; Curnow V. Happy Valley B. G. & H. Co., 68 Cal. 262, 266, 9 Pac. Rep. 149; Tredinnick v. Red Cloud Consol. M. Co., 72 Cal. 78, 81, 13 Pac. Rep. 152; Fernandez v. Burleson, 110 Cal. 164, 167, 42 Pac. Rep. 566, 52 Am. St. Rep. 75. See Union L. Co. v. Simon (Cal. App., March 13, 1906), 89 Pac. Rep. 1077, 1079. The statement in this case, that " what the stat- ute has made essential to the creation of the lien must be fully and correctly stated," is subject to criticism, so far as the description is concerned, since the statute expressly states that a description suffi- cient for identification only is required: See s. c. (Cal. Sup.) 89 Pac. Rep. 1081. »< Correct " descriiition. Under some early statutes the claim was required to contain a "correct description" of the property, and the decisions upholding descriptions under this rule would undoubtedly be applicable under our present statute requiring only a description " sufficient for identification." The rule was early stated, that a description is sufficient if the land is described with convenient cer- tainty: Hotaling v. Cronise, 2 Cal. 60, 64 (in this case the claimant described the property as "the wharf situated on Battery Street, between Pacific and Jackson streets, in San Francisco," and was held sufficient). Under an early statute, which required a " correct " description of the property, in Gordon v. South Fork C. Co., 1 McAl. C. C. 513, 10 Fed. Cas. 817, it is said: "What is meant by a correct description? Does it mean a description by metes and bounds, and require the particu- larity demanded in a deed? The word 'correct' is not a technical one. Its obvious meaning, under the statute, is, such a description as identified the individual object intended to be designated. If there was no other object in existence at the time which answered that description, the rule, De non apparentibus, etc., must apply, and the description must be deemed sufficiently correct. Such object is accom- plished in this case. . . . The subject on which the lien is sought are ' the works known as the South .Fork Canal, near Placerville, in Eldorado County.'" And if an act uses the word "correct" descrip- tion or not, it seems to make no difference. Colorado. Sayre-Newton L. Co. v. Park, 4 Colo. App. 482, 36 Pac. Rep. 445. Montana. Western I. W. v. Montana P. & P. Co., 30 Mont. 550, 77 Pac. Rep. 413, 416. Under the statute in force it was held not necessary to describe the "property," but the land: Whiteside v. Lebcher, 7 Mont. 473, 17 Pac. Rep. 548. New Mexico. Ford v. Springer Land Assoc, 8 N. M. 37, 41 Pac. Rep. 541 (legal subdivisions according to United States surveys, etc., sufficient). Oregon. Where the building is described sufficiently for identifi- cation, such building will be bound, although the land may not be described: Kezartee v. Marks, 15 Oreg. 529, 536, 16 Pac. Rep. 407. 349 CONTENTS OF CLAIM OF LIEN. §§400.401 § 400. Same. Bona fide purchasers. The California courts, with some hesitation, announced the doctrine that the description of the property must be sufficient not only as to the owner, but also as to bona fide purchasers and all other persons who might be interested; in other words, the description must be sufficient in itself as notice to any and all parties likely to become interested in the property.^**" Statutory provision. To render the rule definite and create an exception where the rights of bona fide purchasers intervene, a new section, added to the California Code of Civil Procedure in 1907,^^^ provides : " No mistakes or errors ... in the description of the property against which the claim is filed, shall invalidate the lien, unless . . . the court shall find that the innocent third party, without notice, direct or constructive, has since the claim was filed, become the bona fide owner of the property liened upon, and that the notice of claim was so deficient that it did not put the party upon further inquiry in any manner." ^''- § 401. Same. Object of provision. The requirement of the statute must be looked at in the light of its purpose, and the object of the description is, of course, to affect with notice the owner, creditors, purchasers, and other lien claim- ants dealing with the land or property affected by the lien.^^' AVashington. Griffith v. MaxweU, 20 Wash. 403, 55 Pac. Rep. 571; McHugh V. Slack, 11 Wash. 370, 373, 39 Pac. Rep. 674; Whittier v. Stetson & P. M. Co., 6 Wash. 190, 192, 33 Pac. Rep. 393, 36 Am. St. Rep. 149 (Gen. Stats., § 1667). See CoUins v. Snoke, 9 Wash. 566, 570, 38 Pac. Rep. 161. "" In Union L. Co. v. Simon (Cal. Sup.), the supreme court, on hearing in bank, from s. c. (Cal. App., March 13, 1906) 89 Pac. Rep. 1077, did not agree to an intimation contained in the opinion of the lower court, that a misdescription of one boundary, sufficient as to the owner, may be void as to third persons without knowledge of the ex.trinsic facts, but held that it must be good as to all persons (Hen- shaw and McFarland, JJ.. dissenting). "■' Kerr'.s Cyc. Code Civ. Proc, § 1203a, Kerr's Stata. and Anidts. 190G-07, p. 482. '"- See "Uncertainty and Error," S§ 411, 412 et seq., post. '«' See Fernandez v. Burleson, 110 Cal. 164, 167, 42 Pac. Rep. 566, 52 Am. St. Rep. 75; Montrose v. Conner, 8 Cal. 344, 347. See Union L. Co. V. Simon (Cal. App., March 13, 1906), 89 Pac. Rep. 1077, 1079. Colorado. Gary H. Co. v. McCarty, 10 Colo. App. 200, 50 Pac. Rep. 744. Montana. The purpose of filing a claim of lien is to notify all parties dealing with the property that a lien is claimed upon it. § 402 mechanics' liens. 350 § 402. Same. General rule. As to what constitutes a description " sufficient for identification," the California su- preme court has said: " The claimant is not required, before filing his claim of lien, to make an accurate survey of the lot upon which the building stands, at the risk of losing his lien if he makes a slight mistake in giving its boundaries, nor is he even required to give the boundaries of the lot. . . . ' The best rule to be adopted is, that if there appear enough in the description to enable a party familiar with the locality to identify the premises intended to be described with reason- able certainty, to the exclusion of others, it will be sufficient. There is a great reluctance to set aside a mechanic's claim merely for loose description, as the acts generally contem- plate that the claimants should prepare their own papers, and it is not necessary that the description should be either full or precise." ^^* Hence the same fullness and precision of When tlie building is identified, this notice is given. AH persons are charged with the knowledge that the statute gives a lien upon the building, and then extends it to a certain area of the land upon which the building is situated. If the lien claimant were required to describe specifically the land in his claim, he would often, without any fault on his part, be unable to do so. To ascertain the exact description, if outside the limits of a city, would in many instances require a survey, which the owner might object to and prevent. Again, such a requirement, where the structure is outside the limits of a city, would give a right to such claimant to select the land in any shape he desired, and the query would then arise, whether his selection would not be binding on the court and all the parties to the suit. This might render the statute extremely oppressive on the land-owner. If there was more than one claimant, no two selections might coincide. If the tract of land described is of greater area than the statute allows, but is suflScient for identification, the amount and specific description against which the lien should be adjudged is a matter to be tried and determined by the court, which may appoint a surveyor, if necessary, for that purpose: W^estern I. W. v. Montana P. & P. Co., 30 Mont. 550, 77 Pac. Rep. 413, 416. I" Willamette S. M. Co. v. Kremer, 94 Cal. 205, 209, 29 Pac. Rep. 633. See Fernandez v. Burleson, 110 Cal. 164, 167, 42 Pac. Rep. 566, 52 Am. St. Rep. 75. Colorado. Martin v. Simmons, 11 Colo. 411, 18 Pac. Rep. 535; Cary H. Co. v. McCarty, 10 Colo. App. 200, 50 Pac. Rep. 744 ("wide latitude is allowed in the application of this rule"). Montana. Any description which will enable one familiar with the locality to identify the property upon which the lien is claimed is sufficient: Western I. W. v. Montana P. & P. Co., 30 Mont. 550, 77 Pac. Rep. 413, 416. Xew Mexico. See Ford v. Springer L. Assoc, 8 N. M. 37, 41 Pac. Rep. 541. Oklahoma. Blanshard v. Schwartz, 7 Okl. 23, 54 Pac. Rep. 305. 351 CONTEXTS OF CLAIM OF LIEN. § 403 description is not required in the claim as in the case of a conveyance or a judgment. ^*^" Question of fact. As a general rule, whether the descrip- tion is sufHcient/*''^ or " sufficient for identification," is a ques- tion of faet."^ § 403. Same. Special applications. False calls. A false call or an inaccuracy in the description of the property will not defeat a lien, if the description is not in itself misleading, nor defective in some essential particular. ^^* Description sufficient when it enables one familiar with the locality to identify with reasonable certainty the premises intended to be described: Ferguson v. Stephenson-Brown L. Co., 14 Okl. 148, 77 Pac. Rep. lb;4. Oregon. Harrisburg L. Co. v. Washburn, 29 Greg. 150, 44 Pac. Rep. 390; Kezartee v. Marks, 15 Greg. 529, 16 Pac. Rep. 407. Wasliing-ton. Griffith V. Maxwell, 20 Wash. 403, 55 Pac. Rep. 571. See McHugh v. Slack, 11 Wash. 370, 373, 39 Pac. Rep. 674; Collins v. Snoke, 9 Wash. 566, 571, 38 Pac. Rep. 161; Whittier v. Stetson & P. M. Co., 6 Wash. 190, 194, 33 Pac. Rep. 393, 36 Am. St. Rep. 149; Cowie v. Ahrenstedt, 1 Wash. 416, 420, 25 Pac. Rep. 458. i« Union L. Co. v. Simon (Cal. App., March 13, 1906), 89 Pac. Rep. 1077. Oregon. Contra: Runey v. Rea, 7 Greg. 130 (1874), requiring as definite description as in a mortgage or deed. »«« Willamette S. M. Co. v. Kremer, 94 Cal. 205, 209, 29 Pac. Rep. 633; Union L. Co. v. Simon (Cal. App., March 13, 1906), 89 Pac. Rep. 1077, 1079. '" Corbett v. Chambers, 109 Cal. 178, 185, 41 Pac. Rep. 873 (see " record "). "» Union L. Co. v. Simon (Cal. App., March 13, 1906), 89 Pac. Rep. 1077. See Nystrom v. London & N. W. Am. Mortg. Co., 47 Minn. 31, 94 N. W. Rep. 394. Thus where the description in the claim is "'Lot 6, in block 28, of the Huber tract,' in Los Angeles, . . . said lot was ' situate at the southwest corner of Hope and Eighth streets in said city,' " the description is sufficient, although that lot and block are on the north- east corner of the streets and part of the building is on lot 7, it not appearing that any other building than the one on the northeast corner had been erected by the owner at the intersection of such streets. The description of the block identified the location of the lot, and the call for the "southwest" corner of the streets inay be rejected as a false call in a deed of conveyance; the greater portion of the building being in fact upon lot 6, and the building intended was thus sufficiently identified, notwithstanding it e.xtended a sliort distance beyond the line of division between the two lots. If there had been a building upon each lot, and the plaintiff had stated that the building upon which he claims a lien was upon lot 6, he might have been precluded from enforcing the lien against the one upon lot 7, but in the absence of any ambiguity or uncertainty, the state- ment must be held sufficient whenever it can be determined from it what building was intended: Willamette S. M. Co. v. Kremer, 94 Cal. 205, 209, 29 Pac. Rep. 633. § 403 mechanics' liens. 352 Particular description repugnant to general description. A statement that materials were used in the construction " of that certain railway known as and called the Sierra Valleys and Mohawk Railway " (Mohawk Valley, in Plumas County, being its proposed westerly terminus), includes the entire railway, by general description. A further particular de- scription " to its present westerly terminus," particularly described, which was short of its proposed westerly terminus, is not inconsistent with the general description, and the claim includes the incompleted portion, it being a fair infer- ence that the further particulars were intended and could be regarded merely as for identification of the road as an en- tirety, and not as exclusive of the westerly extension, then incomplete ; although such extension was not within the descriptive particulars, yet it was not excluded by them, and was within the descriptive designation, " Sierra Valleys and Mohawk Railway." ^""^ Washington. Description of property in notice of claim of me- chanic's lien, insufficient when: Whittier v. Stetson & P. M. Co., 6 V^ash. 190, 33 Pac. Rep. 393, 36 Am. St. Rep. 149. As to sullieiency of description of property in notice of claim o£ nieclianic's lien, see note 36 Am. St. Rep. 156. >™ Bring-ham v. Knox, 127 Cal. 40, 43, .'59 Pac. Rep. 198. As to meclianic's lien on railroad, see note 7 Am. & Eng. Ann. Cas. 469-472. Where the claim states that it is the intention of the claimant " to hold and claim a lien . . . upon that certain mining claim situ- ated in the Virginia Bar mining district, county of Siskiyou, state of California, particularly described as follows [giving a specific descrip- tion by monuments, metes, and bounds], containing twelve acres, more or less, . . . with all improvements, including wheels, pumps, and all mining facilities and appurtenances situated thereon," and Burleson and Parsley are mentioned as the owners thereof, and where "the description by monuments, metes, and bounds, thus stated, does not apply in any part to the 'Bare Bar' property, where plaintiffs did their work, but does apply with entire accuracy to an adjoining mining claim known as the ' Otto Bar,' " in which B. and P. had with other persons some interest, but which was not worked at all at the time the plaintiffs did tneir work, and there were no pumps, etc., on Otto Bar, and mines in the neighborhood were "generally known by the names of the parties running them," and tlie Bare Bar claim was commonly called the Burleson and Parsley claim, and mining claims were somewhat numerous in the neighborhood, but Burleson and Parsley worked no other claim, it was said by the court: " There is no warrant in the law, or in the abstract equity of the case, for rejecting the boundaries by which the notice of lien states that the property -is 'particularly described.' One of the most important requirements of the statute governing the creation of such liens is that the notice shall contain a description of the property to 353 CONTENTS OF CLAIM OP LIEN § 403 Construction of description. A description will be so con- strued as to reject a recital repugnant to the rest of the claim, when it contains a reference to one building on one lot, and in fact to the building in question. ^^° be charged, sufficient for identification: Code Civ. Proc, §1187. Wittiout sucli description, tlie notice would in some instances be of no value to the owner, and could rarely be of any use to creditors, purchasers, or other lien claimants dealing- with the land. If this were a case of mistake as to some incident of the description, the mistaken circumstance, like a false call in a deed, would be rejected: Willamette S. M. Co. v. Kremer, 94 Cal. 205, 209, 29 Pac. Rep. 633; but, on the contrary, the error is of the essence of the description. To reject the particular description, and rely on the adventitious circum- stances which accompany it, would be to invert the maxim that the incident follows tlie principal, and not the principal the incident: Civ. Code, § 3540; the notice of lien is not an instrument susceptible of reformation: Goss v. Strelitz, 54 Cal. 640; therefore the monuments and lines by which the property is said in the notice to be 'particu- larly described ' cannot be expunged from the notice, but must be read as part of it; so read, it is misleading- in a particular where it should be substantially true: Wagner v. Hansen, 103 Cal. 104, 107, 37 Pac. Rep. 195. Secondly, were the particular description omitted, and the other circumstances stated in the notice alone consulted, we do not think that a person familiar with the locality merely could thereby identify the premises with reasonable certainty, to the exclusion of others; he would also need to know that the claimant worked on the premises, and when he worked there, — knowledge of which matters cannot be implied from mere knowledge of the locality. Besides, the statute requires that the notice itself m-ust describe the property on which the work was done: Code Civ. Proc, §§ 1183, 1187. A notice that the property to be charged is the property where claimant worked does not take the first step toward compliance with the statute. Nothing then remains except the reference to pumps, wheels, and mining facilities, and to the names of the owners; it is shown aflSrmatively that the defendants claimed and were reputed to own an interest in the 'Otto Bar' mine; and the reference to the wheels. pumps, etc., is — on our present assumption — -to them as situate upon unascertained land. On these facts, at the very most, one might suspect that the ' Bare Bar ' mine was intended, but that he could Identify it with reasonable certainty, to the exclusion of other prem- ises, is incredible": Fernandez v. Burleson, 110 Cal. 164, 167, 168, 42 Pac. Rep. 566, 52 Am. St. Rep. 75. »'» McClaln v. Hutton, 131 Cal. 132, 138, 63 Pac. Rep. 182, 622, 61 Id. 273 (reference to an additional piece). Cbloi-iulo. Where the land was described as being in " Highland Subdivision," instead of "Highland, in the town of Highland," held sufficient, so far as the owner was concerned: Martin v. Simmons, 11 Colo. 411, 18 Pac. Rep. 535. AVsLohin^on. If, by rejecting what is false in the description, any- thing remains to identify the property attempted to be described, the description is sufficient, under the statute. Thus where the descrip- tion was, "That certain two-story brick building, situated on lots numbered 14, 15, 16, and 17, in block 670, of the Everett Land Com- pany's Addition to the town of Everett, Snohomi.sh County, Wash- ington, which building is known as the Slack Building, and fronts on Hewitt Avenue, in said city, and is about 120 feet front, and extend- Mech. Liens — 23 § 404 mechanics' liens. 354 § 404. Same. Property identified by name or exclusive character. Where the property is generally known and des- ignated by a definite name, or is monnmeutal in character, and easily distinguishable from others of like kind, and not to be confounded with others in the same place, in accord- ance with the rules set forth in the preceding sections, an imperfect description by metes and bounds, or by monu- ments, is generally upheld by the courts as being sufficient for identification.^''^ And upon the theory that the building ing back from said avenue 80 feet in depth," it is sufficient for the purposes of identification, although not located in such addition to the city, when there is but one such numbered block and but one such named street in Everett, neither of which appear upon the plat of land of the company's addition, and there is but one such building, and that is located in Hewitt Avenue, in block 670 of the original plat of Everett: McHugh v. Slack, 11 Wash. 370. 39 Pac. Rep. 674. "* Mines. Thus where the description is, " That certain mine commonly called the Red Cloud Mine, situated in Bodie mining dis- trict, Bodie township, in Mono County," and it appears from the evi- dence that the mine was well known and commonly spoken of as the Red Cloud Mine." it is sufficient, the word "mine" meaning the whole claim or body of mining-ground: Tredinnick v. Red Cloud Consol. M. Co., 72 Cal. 78, 81, 13 Pac. Rep. 152. In this case there was a description by courses and distances, which rendered it impossible to trace all the exterior lines of the land; but some monuments were stated which would control the distances; and it was held that the description by name was svifflcient for identification. There was no evidence that there was any other mine by that name. See "Object," §§182 et seq., ante. The same is true where the description is " a quartz-mill, being at or near the town of Scottsville, in Amador County, known as Moore's new quartz-mill." where there is no evidence that there was any other quartz-mill at the place so designated, so as to render it uncer- tain which was intended: Tibbetts v. Moore, 23 Cal. 208, 213 (Stats. 1856, as amended: decided in 1863). See Montrose v, Conner, 8 Cal. 344, 347 (1855). Where the claim does not state that the labor was performed " in a mining claim," but on " that certain copper mine," etc., and the charging clause claimed a miner's lien on " said mining claim." it was held sufficient: Castagnetto v. Coppertown M. & S. Co., 146 Cal. 329. 333, 80 Pac. Rep. 74 (before amendment of 1903), Kerr's Cyc. Code Civ. Proc, § 1183. Where the land around a mill was described in the claim, "with such convenient space of land around the same as may be required for the convenient use and occupation," it was held sufficient: Tib- betts v. Moore, 23 Cal. 208, 213 (material furnished in 1860; decided in 1863). See Union L. Co. v. Simon (Cal. App., March 13, 1906), 89 Pac. Rep. 1077, 1079. Idnho. A claim describing the property as the " Salem Bar Mines," with a description of the location of said mines, consisting of a group of mines, known by said name, and owned by the same person, is sufficient: Phillips v. Salmon R. M. & D..Co., 9 Idaho 149, 72 Pac. Rep. 886. Montana. Structures: Where the property to be charged with the lien is monumental in character, easily distinguishable, and known 355 CONTENTS OF CLAIM OF LIEN. § 404 or structure should be primarily described as the " property," a description of which is required by the statute, the courts have held, with a more or less clear statement as to the prin- ciple involved, that a sufficient designation of such structure is an adequate compliance with the law.^^- by a particular name, and no structure of like character existed in the place, a description as " that certain two-story brick building, etc., with the lots on which the same is situated, comprising portions of the following," including a description of certain blocks in the town site, and certain real estate outside of the same, is sufficient, under 5 2131 of the Code of Civil Procedure: Western I. W. v. Montana P. & P. Co., 30 Mont. 550, 77 Pac. Rep. 413, 416. '■' See Willamette S. M. Co. v. Kremer, 94 Cal. 205, 209, 29 Pac. Rep. 633. Montana. The property to be identified is the building or improve- ment on which the lien is given, and hence a particular description of the land is not required: Western I. W. v. Montana P. & P. Co., 30 Mont. 550, 77 Pac. R%p. 413 (under Code Civ. Proc, §§ 2130, 2131). Oregon. So where the claim misdescribed the block and addition of the town, the plaintiff cannot be permitted to aver or prove the correct description, unless it is manifest that there is a latent ambi- guity in the description; and where such notice further stated that claimant furnished the material to B. in erecting a church building for the Methodist Episcopal Church, the evidence showing that there was only one such church in that place built by B., it was held suffi- cient: Harrisburg L. Co. v. Washburn, 29 Oreg. 150, 168, 44 Pac. Rep. 390. But where no lien i.s claimed upon any building, and the descrip- tion, being false, is rejected, tlie ambiguity is patent, and cannot be corrected: Id.; Hendy M. W. v. Pacific Cable C. Co., 24 Oreg. 152, 33 Pac. Rep. 403. VVasliingrton. It seems that the building must be primarily de- scribed, ratljer than the land: Warren v. Quade, 3 Wash. 750, 29 Pac. Rep. 827. And so where the claim mentions the building or structure upon the lots described, and in the next clause that S. was the owner, and caused the building or structure to be built and erected, it is suf- ficient: Collins V. Snoke, 9 Wash. 566, 570, 38 Pac. Rep. 161. In Warren v. Q,uade, supra, no building was originally mentioned, and the notice referred to the " said building aforesaid," and it no- where appeared that the buildings referred to were upon the lots described, it was held insufficient, as "a lien cannot be maintained on certain lots, unless the building upon which the work was done is situated on or connected witli said lots," said the court. But see Whittier v. Stetson & Post M. Co., 6 Wash. 190, 193, 33 Pac. Rep. 393. 36 Am. St. Rep. 149, in which it was said: "The location at the corner of the streets also helps to identify; and we do not desire to be understood as holding that such a description, without any designa- tion of a lot or block, would not be a sufficient identification, if the quantity of land were also identified, as, for example, if the size of the building on the ground were stated." See also Washington note, ante, this section, and §405, post. "This court has held that a lien upon a building is ineffectual, unless the land, or some interest there- in, be included in it: Kellogg v. Littell & S. Mfg. Co., 1 Wash. 407, 25 Pac. Rep. 461." In Wliitticr V. .Stetson & V. M. Co., 6 Wash. 190, 194, 33 Pac. Rep. 393, 36 Am. St. Rep. 149, referring to Willamette S. M. Co. v. Kremer, § 405 mechanics' liens. 356 § 405. Same, Description as including too much or too little.^^^ A distinction is thought to exist relative to the effect of a description of the land to be charged with the lien, as including too much or too little. Too much land. Subject to the rules stated in the pre- ceding sections, a claim of lien is not rendered invalid by a description of the property to be charged with the lien, which includes more land than the law subjects to such lien.^'^* Thus where some of the land described is not subject to the lien, as, for instance, where the lien is claimed upon a " mining claim," and part of the land described belongs to a Spanish grant, then not subject to the lien, its inclusion in the claim of lien does not vitiate, if any part of it is a mine.^^^ Too little land. Whether a claim for too little land will vitiate the lien depends upon circumstances,"'' and the safer practice is to tile a claim describing the " property " in its entirety, and not necessarily against the " object upon which the labor was performed." ^^^ The subject is not free from 94 Cal. 205, 209, 29 Pac. Rep. 633, the court say: "The court, upon the theory of liberal construction, and that the owner was not misled, and regarding- tlie statute as authorizing a lien upon the ' property,' which it interpreted to be the house, sustained the lien"; and the case of Tredinnick v. Red Cloud C. M. Co., 72 Cal. 78, 81, 13 Pac. Rep. 152, was explained as follows: "The inception of a mining title is usually by means of a location notice, in which the name is the most prominent feature, and all conveyances follow by the name only. A public record, in tliat case, identified the property in the first place, but there is no such record of buildings." "3 See "Territorial Extent of I^ien," §§ 438 et seq., post; "Pleading," §§ 710 et seq., post; "Decree," §§ 930 et seq., post. "* Colorado. A lien will not fail if the claimant described too large a tract, if the land properly subject to it is included therein, especially where no innocent party is misled or injured: Cary H. Co. V. McCarty, 10 Colo. App. 200, 50 Pac. Rep. 744 (1889). See Mellor v. Valentine, 3 Colo. 260, 264. Montana. Western I. W. v. Montana P. & P. Co., 30 Mont. 550, 77 Pac. Rep. 413. Nevada. A notice of intention to claim a lien may include more property than is subject to the lien: Maynard v. Ivey, 21 Nev. 241, 245, 29 Pac. Rep. 1090. "= Bewick V. Muir, 83 Cal. 368, 372, 23 Pac. Rep. 389. But see §§ 182 et seq., ante. "" See "Necessity of One or More Claims," §366, ante; but see especially " Extent of Lien," S§ 438 et seq., post. "' Vtali. The fact that the claim does not cover all the premises upon which the building was erected does not affect the validity of the lien: Culmer v. Clift. 14 Utah 286, 47 Pac. Rep. 85. AVa.<4hington. The land may be described by buildings or struc- tures covering tlie land, if it is sought to subject the land so covered \ 357 CONTENTS OF CLAIM OF LIEN. § 405 difficulty, and in the absence of a more clearly defined state- ment of the meaning of the word " property," in connection with the description required by the statute, some waver- ing, if not conflict, in the authorities necessitates a careful scrutiny of the facts of each particular case. In case of railroad or canal. Generally, where a contractor grades a section of a railroad or canal,^^^ the description should be of the entire road or canal, and the claim should not be against the section merely; each case, however, as before stated, depending upon its own peculiar circum- stances. ^^^ Mines and mining claims. In the case of a mine or mining claim, the description should be of the mine or mining claim, to the lien, and the buildings are such in character or are so de- scribed as to be readily identified: McHugh v. Slack, 11 Wash. 370, 373, 39 Pac. Rep. 674 (under Gen. Stats., § 1G67). But see, under the same statute, Whittier v. Stetson & Post M. Co., 6 Wash. 190, 33 Pac. Rep. 393, 36 Am. St. Rep. 149, in which the description was held insufficient, where the building was designated as "the Brodek and Schlessinger Building," and it covered the "south half of lot 6," which was not included in the description of the land, the building being more or less attached to another building, owned by other parties, constructed at the same time, which rendered the two in the nature of a single structure. See Washington note, § 404, ante. See also Cowie v. Ahrenstedt, 1 Wash. 416, 25 Pac. Rep. 458, in which it was held that the description in the claim covering the whole lot was insufficient, where it covered only a part of tlie lot other portions of the lot being owned by others, and the description of the part covered by the building not being otherwise sufficiently definite. The principle as laid down in Kellogg v. Littell & Smythe Mfg. Co., 1 Wash. 407, 25 Pac. Rep. 461, seems to be, that although the area of the tract on which the building is situated may be certain and definite, if the location of a smaller piece situated within the tract upon whicli the building is located is indefinite, the lien cannot be sustained. "•* South Fork C. Co. v. Gordon, 2 Abb. (U. S.) 479, 22 Fed. Cas. 826 8 Am. L. Rep. N. S. 279 (Cir. Ct. Cal.); Brooks v. Burlington & S w' R. Co., 101 U. S. 443, bk. 25 L. ed. 1057; but see South Fork C Co v' Gordon, 73 U. S. (6 Wall.) 561, bk. 18 L. ed. 894, and dissenting opinion of, Justice Field: Pacific R. M. Co. v. Bear V. Irr. Co., 120 Cal. 94 96 52 Pac. Rep. 136, 65 Am. St. Rep. 158. And see " Property Viewed as an Entirety," §§ 447 et seq., post. The claim must, in general, be claimed and enforced against an entire railroad, and not against a particular section thereof: Bring- ham V. Knox, 127 Cal. 40, 43, 59 Pac. Rep. 198. "» Cox V. Western Pac. R. Co., 44 Cal. 18, 28, s. c. 47 Cal. 87, 89. In this case, importance was attached to the fact that the contracts were entire, for the whole work, and plaintiffs did not fully perform, and there was nothing to show an abandonment or interruption of the work. See Pacific R. M. Co. v. Bear V. Irr. Co., 120 Cal 94 98 52 Pac. Rep. 136, 65 Am. St. Rep. 158. §§ 406, 407 mechanics' liens. 358 and not of the object or structure erected upon it/^° or upon which the repairs were made.^*^ § 406. Same. Two or more descriptions. ^^^ Statutory provision. The California Code of Civil Procedure ^^^ pro- vides : " In every case in which one claim is filed against two or more buildings, mining claims, or other improvements owned by the same person, the person filing such claim must at the same time, designate the amount due to him on each of such buildings, mining claims, or other improvements; otherwise the lien of such claim is postponed to other liens." § 407. Same. Application of provision as to demands against separate buildings. The requirement quoted in the last section applies to eases in which one claim is filed against two or more separate and distinct " buildings, mining claims, or other improvements " owned by the same person, and not to the case where all the work was performed on the same property, although upon different portions of it or upon dif- ferent objects situated thereon. ^^* It also applies to the case of one or more buildings erected upon the same lot, though contracted for at different times and under different unfiled contracts between the owner and the same original con- tractor.^^^ 180 Williams v. Mountaineer G. M. Co., 102 Cal. 134, 142, 37 Pac. Rep. 702, 36 Id. 388, explained in Berentz v. Belmont O. M. Co., 148 Cal. 577, 580, 84 Pac. Rep. 47, 113 Am. St. Rep. 308. See Pacific R. M. Co. v. Bear V. Irr. Co., 120 Cal. 94, 96, 52 Pac. Rep. 136, 65 Am. St. Rep. 158. See "Extent of Lien," §§438 et seq., post. 181 Silvester v. Coe Q. M. Co., 80 Cal. 510. 512, 22 Pac. Rep. 217. 1S2 See § 366, ante; "Extent of Lien," §§ 438 et seq., post. 183 Kerr's Cyc. Code Civ. Proc., § 1188. 1S4 Dickenson v. Bolyer, 55 Cal. 285, 286. See Williams v. Moun- taineer G. M. Co., 102 Cal. 134, 141, 34 Pac. Rep. 702, 36 Id. 388, and Tibbetts v. Moore, 23 Cal. 208, 215. But see Lothian v. Wood, 55 Cal. 159, 163. As to mechanic's lien In case of separate building, see 2 Am. & Eng. Ann. Cas. 685. Utah. Eccles L. Co. v. Martin (Utah), 87 Pac. Rep. 713, 718. Washington. See Powell v. Nolan, 27 Wash. 318, 67 Pac. Rep. 712, 720. 185 Booth V. Pendola, 88 Cal. 36, 40, 23 Pac. Rep. 200, 25 Id. 1101. Washington. Separate notices claiming separate liens upon each of three houses situated- upon a single lot are not insufficient because they describe eacli of the houses as being upon the lot, and do not specify any particular portion thereof upon which each house is sit- uated, when no particular portion of the lot has been set apart by 359 CONTENTS OP CLAIM OP LIEN. § 407 Specific amount due. Such designation is not necessary, unless there is in fact a specific " amount due to him " on each of such improvements, as it may frequently happen that a contractor would construct several buildings under one contract, and there would not be a specific amount due to him on each of such buildings. ^^^ Consolidation of mining claims. But where two or more mining location^ are consolidated, and thereafter treated and worked as one mining claim, such different locations cease to constitute different claims, and become in law, as they are in fact, only parts of one claim, and this section has no appli- cation.^'*'' Grading and street-work. And it is thought that the pro- vision has no application to grading and other work, under the Code of Civil Procedure,^^^ on property and work men- tioned in the specific provision relating thereto, as there is no " improvement," within the meaning of section eleven hundred and eighty-eight ^^^ of that code.^"" the owner as necessary to be used in connection witli each house. Under Laws 1893, p. 32 (Ballinger's Ann. Codes and Stats., §§ 5900 et seq.), such claims are sufficient, when they indicate an intention to claim a lien upon the entire lot and the buildings thereon situated for all the labor done and materials furnished for all the houses: Sulli- van V. Treen. 13 Wash. 261, 43 Pac. Rep. 38. But where the claims attempted to segregate the amounts, but did so indefinitely, the claim was held insufficient: Merchant v. Humeston, 2 Wash. Ter. 433, 7 Pac. Rep. 903. iM ^va^ren v. Hopkins, 110 Cal. 506, 42 Pac. Rep. 986. WuMhingtun. See Wheeler v. Ralph, 4 W^ash. 617, 629, 30 Pac. Rep. 709. '"' Tredinnick v. Red Cloud C. M. Co., 72 Cal. 78, 84, 13 Pac. Rep. 152; Hamilton v. Delhi M. Co., 118 Cal. 148, 151, 50 Pac. Rep. 378. See Malone v. Big Flat G. M. Co., 76 Cal. 578, 583, 18 Pac. Rep. 772. Colorado. Such statement not required: Rico R. & M. Co. v. Mus- grave, H Colo. 79, 23 Pac. Rep. 458 (1883). Idaho. Idaho M. & M. Co. v. Davis, 123 Fed. Rep. 396, 397, 59 C. C. A. 200. ^ Kerr's Cyc. Code Civ. Proc, § 1191. "» Kerr's Cyc. Code Civ. Proc, § 1188. '»« Warren v. Hopkins, 110 Cal. 506, 42 Pac. Rep. 986. See "Priori- ties," §§ 486 et seq., post. Ah to mechanic's lien for ^vorlc on streets and sideivalks, see 4 Am. & Eng. Ann. Cas. 1015. Colorado. Unless a material-man's claim arising from the con- struction of improvements on a city lot and a portion of an adjoining lot is filed both on the full lot and the portion of a lot, the entire debt may be paid out of the lot which was described in the claim, no other interest having intervened: but in order to assert a claim against both lots, they should have been included in the statement: Perkins V. Boyd (Colo.), 86 Pac. Rep. 1045. §§ 408, 409 mechanics' liens. 360 Effect of non-compliance. The only effect of non-compli- ance is to give precedence to other liens/®^ and it is no con- cern of the owner of the lot whether the section has been complied wuth or not.^^^ § 408. Claim of charge. The Code of Civil Procedure ^^^ provides that the person claiming the benefit of this chapter shall file a " claim " of lien " containing a description of the property to be charged with the lien." ^®* No direct state- ment, in the claim, of the intention to claim a charge upon the property described is necessary, and it is sufficient if such intention appears generally. ^^^ Thus where the claim avers that the person claimed the benefit of the provisions of chapter two, title four, part three, of the Code of Civil Pro- cedure, it is a sufficient statement that the claimant claimed a lien upon the property described ; "*^ and it is of little conse- quence whether the claimant styles the instrument which he files a " claim of lien " or " a claim of benefit under the lien law." 1" § 409. Signature. There is no express provision in the present statute requiring the claim to be signed, although a "1 See authorities in note 192, post. Idabo. Phillips v. Salmon R. M. & D. Co., 9 Idaho 149, 72 Pac. Rep. 886 (under Sess. Laws 1899, p. 148, §7); Idaho M. & M. Co. v. Davis, 123 Fed. Rep. 396, 397, 59 C. C. A. 200 (under Sess. Laws 1893, p. 51, §7). Utah. See Eccles L. Co. v. Martin (Utah), 87 Pac. Rep. 713; Garner V. Van Patten, 20 Utah 342, 58 Pac. Rep. 684 (Rev. Stats. 1898). "2 Booth V. Pendola, 88 Cal. 36, 40, 43. See various stages of this decision in 23 Pac. Rep. 200, 24 Id. 714, 25 Id. 1101. And see " Priorities," §§ 486 et seq., post. Oregon. See Willamette S. M. L. & M. Co. v. Shea, 24 Oreg. 40. 53, 32 Pac. Rep. 759. 193 Kerr's Cyc. Code Civ. Proc, § 1187. ^** See "Claim Generally," §§361 et seq., ante. "5 In Gordon v. South Fork C. Co., 1 McAl. C. C. 513, 10 Fed Cas. 817 (reversed in 73 U. S. (6 Wall.) 561, bk. 18 L. ed. 894, on another point), it was held that the fact that the claim of lien did not state that it was intended to hold a lien on the specific work under the acts of 1850 and 1853 did not affect the lien. Colorado. Claim of charge upon improvements and land, under statutes of 1883, 1889, does not affect decree for sale of improvements only, where there is a prior encumbrance: Bitter v. Mouat L. & I. Co., 10 Colo. App. 307, 51 Pac". Rep. 519. "« Russ L. Co. V. Garrettson. 87 Cal. '589, 595. 25 Pac. Rep. 747; Bringham v. Knox, 127 Cal. 40, 44. 59 Pac. Rep. 198. "' Madary v. Smartt, 1 Cal. App. 498, 500, 82 Pac. Rep. 561. 361 CONTENTS OF CLAIM OP LIEN. § 410 verification is required ; '"'^ but, under earlier statutes, con- taining provisions similar to those in the present statute,^"'' and not requiring the claim to be signed, it was held that the signing of the verification attached to the claim was suffi- eient.2°° §410. Verification.201 The present statute ^o^ provides that the claimant must file a claim of lien, "which claim must be verified by the oath of himself, or of some other person. " 203 "« See "Verification," §410, post. Washington. Ballinger's Ann. Codes and Stats., § 5904, required the claim to be signed: See Hopkins v. Jamieson-Dixon M. Co. 11 Wash 308, 317, 39 Pac. Rep. 815. 199 Kerr's Cyc. Code Civ. Proc, § 1187. 2°" Hicks V. Murray, 43 Cal. 515, 522, 523 (under the act of 1868) in ■which it was said in the dissenting opinion of Crockett, J. (concur- ring, however, upon this point): -Nor is it necessary that the state- ment should be signed by the claimant, provided it appears in the body of the statement who the claimant is and by whom the materials were furnished or the labor performed; and provided, also the state- ment is verified by the claimant. These would sufficiently Identify the claimant and authenticate the statement, without the actual sig- nature of the claimant to the body of the statement. No useful purpose could be subserved by his signature to the body of the statement which he verifies with his oath." Under the act of 1S«-', notice to the owner, although not expressly required to be signed by the statute, and though it purported in the body of the notice to come from the claimant, yet where it was not shown to have been in his handwriting, was held invalid- Davis v Livingston, 29 Cal. 283, 288. The general principle of this decision does not seem to be in accord with the later decisions. See "Notice to Owner," §§ 547 et seq., post. New Mexico. A claim is not ineffectual by reason of the fact that the claimant uses the initials of his christian name, instead of sign- ing in full. The use of initials only. Instead of writing out the chris- tian name of a person, in any legal instrument, is a practice not to be commended: Pearce v. Albright, 76 Pac. Rep. 286. Utah. Where the claim is subscribed " Duvall and Mills by Richard Duvall," and was sworn to by Duvall, one of the claimants and joint contractor, it is sufficient: Culmer v. Caine, 22 Utah 216 61 Pac. Rep. 1008, 1009 (under Laws 1890, ch. xxx, § 10). ' " ' Waahingrton. Individual doing business under name of " Western Mill Factory": See Littell v. Saulsberry, 40 Wash. 550, 82 Pac. Rep. ="' See, generally, § 409, ante. ^''2 Kerr's Cyc. Code Civ. Proc, § 1187. ='« See Wagner v. Hansen, 103 Cal. 104, 107, 37 Pac. Rep 195 and the dissenting opinion of Crockett. J., in Hicks v. Murray 4^ Pal' r^iK 523 (18GS). ■^' ^^'- ''^^• Colorado. The statement was required to be verified- Rice v Car michael, 4 Colo. App. 84, 87, 34 Pac. Rep. 1010 (1889). § -410 mechanics' liens. 362 Provision as to verification of pleadings not applicable. Section four hundred and forty-six of the Code of Civil Pro- cedure ^°* is applicable solely to pleadings in actions or pro- ceedings, and a claim of lien is not such a pleading, and hence said section is not applicable to such verification, but section eleven hundred and eighty-seven -°° is the proper section to follow. The claim may be verified by any person who is possessed of sufficient knowledge upon the subject; and the particular relation which he bears to the claimant is immaterial. ^""^ Form of verification is therefore not required to be in form like that attached to a pleading provided for in section four hundred and forty-six of the Code of Civil Procedure, as Verification held to contain more than the statute requires: Gut- shall V. Kornaley (Colo.), 88 Pac. Rep. 158 (under Sess. Laws 1899, p. 270, c. cxviil, § 8). Nevada. Held that the county recorder could administer oath and certify to claim: Arrington v. Wittenberg, 12 Nev. 99. IVetv Mexico. Probate clerk may verify claim: Bucher v. Thomp- son, 7 N. M. 115, 32 Pac. Rep. 498. If the claim is not verified, there is no lien, and the verification cannot be amended: Minor v. Marshall, 6 N. M. 194, 198, 27 Pac. Rep. 481; Finane v. Las Vegas H. & I. Co., 3 N. M. 256, 5 Pac. Rep. 725 (sig- nature and seal of office lacking). ]Vew Mexico. Verification before a clerk of a court of record of a sister state, held sufficient: Genest v. Las Vegas M. B. Assoc, 11 N. M. 251, 67 Pac. Rep. 743 (under Comp. Laws 1897, § 2221). Oregon. Where the verification v/as not signed, it was held tliat the statute does not require any particular form of verification, and where tlie certificate of the notary shows that one of the claimants did verify the claim, it is sufficient: Ainslie v. Kohn, 16 Oreg. 363, 19 Pac. Rep. 97. AVasliington. The omission of the notary's seal was held to be a fatal defect, as the notice "was not primarily intended for use in court or in any judicial proceeding, but to obtain and preserve the lien": Gates v. Brown, 1 Wash. 470, 471, 25 Pac. Rep. 914 (under the peculiar language of the statute); Stetson & Post M. Co. v. McDonald, 5 Wash. 496, 32 Pac. Rep. 108 (holding that parol evidence of tlie fact that the claim had been sworn to was inadmissible, citing the pre- ceding case). As to omission to add to signature the place of residence of notary, see Sullivan v. Treen, 13 Wash. 261, 43 Pac. Rep. 38. Verification by attorney for foreign corporation: See Huttig Bros. Mfg. Co. V. Denny Hotel Co., 6 Wash. 122, 32 Pac. Rep. 1073. See also, as to verification, Hopkins v. Jamieson-Dixon M. Co., 11 Wash. 308, 39 Pac. Rep. 815 (Rev. Stats., § 1521). -"* Kerr's Cyc. Code Civ. Proc, § 446. 20D Kerr's Cyc. Code Civ. Proc. § 1187. *»• And Kerr's Cyc. Code Civ. Proc, § 446, is applicable solely to pleadings in actions and proceedings, and a claim of lien is not such a pleading: Parke & Lacy Co. v. Inter Nos O. & D. Co., 147 Cal. 490, 494, 82 Pac. Rep. 51. 363 CONTENTS OP CLAIM OF LIEN. § 410 it is not a pleading.-"^ Indeed, such form would probably not comply with the requirements of the section ; and where the affidavit attached to the claim is that the same is " true," it is sufficient ; and the omission of the words, " of his own knowledge," is not a defect ; -°* nor is the failure to state that the " claim is true," when it recites " that the facts stated therein are true." -°^ And it is not necessary to set out the particulars contained in the body of the claim.^" ^' Kerr's Cyc. Code Civ. Proc., § 446, and note. 2»» Arata v. Tellurium G. & S. M. Co., 65 Cal. 340, 344, 4 Pac. Rep. 195; Reed v. Norton, 90 Cal. 590, 602, 26 Pac. Rep. 767, 27 Id. 426. Montana. A statement of lien on behalf of a corporation, verified by its president on information and belief, was held insufficient, under § 2131 of the Code of Civil Procedure, requiring the claim to be " verified by affidavit," such statement being held to be no affidavit: Western P. Co. v. Fried, 33 Mont. 7, 81 Pac. Rep. 394, 114 Am. St. Rep. 799. Oregon. "The statute does not prescribe any particular form in which such verification shall be made. No doubt the better practice would be in the form of an affidavit to be annexed to the claim, to the effect that the facts therein stated are true"; and a claim was held sufficient where the month on which the subscription was made was omitted: Kezartee v. Marks, 15 Oreg. 529, 16 Pac. Rep. 407. ^Vashington. The affidavit must state that the affiant believes the claim to be just (Ballinger's Ann. Codes and Stats., §904); and a statement " that the claim is just and correct " (Johnston v. Harring- ton, 5 Wash. 73, 31 Pac. Rep. 316), or an allegation that the affiant believes tlie same to be true (Sautter v. McDonald, 12 Wash. 27, 40 Pac. Rep. 418), is equivalent. And see, where the claim stated that a certain amount was due after deducting all just credits and offsets, Fairhaven L. Co. v. Jordan, 5 Wash. 729. 32 Pac. Rep. 729. 2»» Corbett v. Chambers, 109 Cal. 178, 185, 41 Pac. Rep. 873. AVasliington. And the employment of the term " lien," instead of " claim of lien," referred to in the verification, does not render it in- suHicient: Sautter v. McDonald, 12 Wash. 27, 40 Pac. Rep. 418. -*• Reed v. Norton, 90 Cal. 590, 602, 26 Pac. Rep. 767, 27 Pac. Rep. 426. New Mexico. The whole claim must be verified, however: Minor v. Marshall, 6 N. M. 194, 199, 27 Pac. Rep. 481; Finane v. Las Vegas H. & 1. Co., 3 N. M. 256, 5 Pac. Rep. 725; and the reference of the verification must be to the whole claim, and not to a part of it. And so where the affidavit limits itself by stating " that the abstract of indebtedness mentioned and described in the foregoing notice is true and correct," etc., it is insufficient, the court saying, "It should be remembered that the rule of construction, whether strict or liberal, has reference to the language of the statute, not to that used in compliance with the statute. The question here is, not what construction shall be given to the words 'abstract of indebtedness,' but to the word 'verification,' as used in the statute. We said that the word 'verification,' in the statute, does not require an alfidavit; it does not require the signa- ture of the party to the affidavit; it does not require the word 'claim' to be used; but it does require that the officer who certifies to the oath should sign the same, and attach his seal thereto; it does require the use of such plain and unmistakable language that there can be no § J:ll mechanics' liens. 364 Errors and omissions. It was held sufficient where the claim was subscribed by " Williams & Whitmure," and the verification commenced, " , being duly sworn, deposes and says that he is one of the persons named as Williams & Whitmore in the foregoing claim of lien," etc., and it was signed by A. C. Williams; for, evidently, some one who in the claim of lien was named Williams or Whitmore was sworn, and the signature and certificate of the magistrate fixed the matter beyond question, the blank not being more indefinite than the Avord " affiant " would have been.^^^ Verification of claim of lien, stating that the person verify- ing is the agent of the " plaintiff," will be held to mani- festly mean that he is the agent of the claimant, as there was then no action, and, technically, no " plaintiff." -^- By agent or attorney. A verification by an attorney, who states that, " as such attorney, he has knowledge of the facts," and makes affidavit for the claimant, on account of his absence from the state, is sufficient.^^^ Time of verification. The fact that a verification was made several months prior to the completion of the building and to the filing of the claim does not render the verification prema- ture or insufficient.-^* § 411. Uncertainty in claim.^^^ It is thought that where the claim of lien is uncertain it will be construed against the reasonable doubt but that he is swearing to the wliole claim": Minor V. Marsliall, 6 N. M. 194, 199, 27 Pac. Rep. 481. Oklahoma. See El Reno E. L. & T. Co. v. Jennison, 5 Okl. 759, 50 Pac. Rep. 144. =" San Diego L. Co. v. Wooldredge, 90 Cal. 574, 580, 27 Pac. Rep. 4.31. *" Parke & Lacy Co. v. Inter Nos O. & D. Co., 147 Cal. 490, 494. 82 Pac. Rep. 51. 2" Jones V. Kruse, 138 Cal. 613, 617, 72 Pac. Rep. 146. Montana. So where the affidavit recited that M., the assistant manager of the corporation claimant, was dTily sworn, and was sub- scribed with the name of the corporation by M., assistant manager, it was held sufficient: Montana L. & M. Co. v. Obelisk M. & C. Co., 15 Mont. 20, 37 Pac. Rep. S97. Oregon. Verification by the secretary of corporation, held suf- ficient: Cooper M. Co. v. Delahunt, 36 Oreg. 402, 60 Pac. Rep. 1. 51 Id. 649 (under Hill's Ann. Laws, § 3673). Utah. Verification by attorney: Culmer v. Clift, 14 Utah 286, 47 Pac. Rep. 85. ^i-" Coss V. MacDonough, 111 Cal. 662, 66S, 44 Pac. Rep. 325. 2^^ See, generally, "Amendment," S 415, post; "Variances," §§835 et seq., post. 365 CONTENTS OF CLAIM OF LIEN. § 412 claimant. Thus where the claim stated that the contract was entered into " on or about July 1st," to furnish certain mate- rials for the building, the claimant was not permitted to recover for any materials furnished before that date, although under a contract entered into before that date.-^® § 412. Mistake and error in claim.^i^ A new section -^* added to the California Code of Civil Procedure provides as follows : " No mistakes or errors in the statement of the demand, or of the amount of credits and offsets allowed, or of the balance asserted to be due to claimant, nor in the description of the property' against which the claim is filed, shall invalidate the lien, unless the court finds that such 2i« Goss V. Strelitz, 54 Cal. 640, 643. See Santa Monica L. & M. Co. V. Hege, 48 Pac. Rep. 69; and see opinion on rehearing, 119 Cal. 376. 51 Pac. Rep. 555. See " Complaint," § 670, post. Date of contract need not be iiisertetl. There is nothing in the statute expressly requiring the date of the contract to be inserted in the claim. See "Unnecessary Statements," §§374 et seq., ante. Incertainty as to wliether one or t^vo building;!* : See Eaton v. Ma- latesta. 92 Cal. 75, 76, 28 Pac. Rep. 54. Uncertainty in description: See §§ 399 et seq., ante. See §§ 371 et seq.. ante, and §§ 387 et seq., ante. "' See, generally, "Amendment," §415, post; "Variances," §§835 et seq., post; "Construction," §317, ante; "Contract," §§ 387 et seq., ante. iSrror as to time of last payment: See Stimson M. Co. v. Riley (Cal., Dec. 20, 1895), 42 Pac. Rep. 1072. As to truthfulness of statement in regard to terms of contract, see McClain v. Hutton, 131 Cal. 132, 141, 61 Pac. Rep. 273, 63 Id. 182, 622. See also § 389, ante. Nevada. Claiming more than is due, by mistake, and without fraud or wrongful intent, does not invalidate claim of lien: Salt Lake H. Co. v. Chainman M. & E. Co., 137 Fed. Rep. 632. 638 (Cir. Ct. Nev.). OrcRon. Mistake made in an honest belief as to its correctness will not avoid the claim, but otherwise if claimant knows the state- ment to be untrue, or could have known by the exercise of reason- abl,e diligence: Cooper M. Co. v. Delahunt, 36 Greg. 402, 60 Pac. Rep. 1, 51 Id. 649 (the lien claimed shoAved a credit of three hundred dollars, while the court found a four-hundred-dollar credit, and there was a difference of opinion between the parties as to the fifty-dollar dif- ference). rtab. Claimant is not entitled to recover more than the amount set up in his claim of lien: Culmer v. Caine, 22 Utah 216, 61 Pac. Rep. lOOS. 1011. Washington. Interest should not be allowed, when not claimed in the claim of Hen, especially where the complaint does not pray for such interest: Huetter v. Redhead, 31 Wash. 320. 71 Pac. Rep. 1016. -'" Kerr's Cyc. Code ("iv. Proc, § 1203a (in effect sixty days from and after March 22. 1907). § 413 mechanics' liens. 3G6 mistake or error in the statement of the demand, credits and offsets, or of the balance due, was made with the intent to defraud, or the court shall find that the innocent third party, without notice, direct or constructive, has since the claim was filed, become the bona fide owner of the property liened upon, and that the notice of claim was so deficient that it did not put the party upon further inquiry in any manner." Analysis of provision. It will be noted that this section makes reference only to mistakes or errors in the state- ment of — 1. The demand; 2. The amount of credits and offsets ; 3. The balance asserted to be due to claimant ; and 4. The description of the property. The several requirements as to the claim of lien are not all here enumerated. The evident intent was to make a statu- tory enunciation of a general rule, and probably there is no intendment that a stricter rule shall be applied in regard to the requirements not so enumerated ; i. e., the names of the owner, employer, and purchaser, and the terms, time given, and conditions of the contract. This subject has been considered in some detail under various subheads in the preceding part of this work.^^® § 413. Same. Unnecessary statements. It has already been shown that a misstatement of a fact not required by the statute to be stated will not invalidate the claim.^^" Thus where there is a mistaken statement as to the date of the completion of the work, or as to the date of the contract,--^ which are not required by the statute ; --- or where there is a misstatement of a fact not material in the claim of lien, "» See §§ 375 et seq., and §§ 399 et seq., ante. 220 " Unnecessary Statements," §§ 374 et seq., ante. Oregon. Chamberlain v. Hibbard, 26 Oreg. 428, 38 Pac. Rep. 437. 2=1 Pacific Mut. L. Ins. Co. v. Fisher, 109 Cal. 566, 568, 42 Pac. Rep. 154. 2=2 Slight V. Patton, 96 Cal. 384, 386, 31 Pac. Rep. .248. Colorado. A recital in a claim of the date of completion of a build- ing is not conclusive on the claimant, since the law does not require the date to be inserted therein; althovigh it may be of some value as against his declarations, yet it is not, in. a legal sense, so far con- clusive that he may not prove the actual time: Burleigh B. Co. v. Merchant B. & B. Co., 13 Colo. App. 455, 59 Pac. Rep. 83, 86 (under act of 1893). 367 CONTENTS OP CLAIM OF LIEN. § 414 as of a sum due for a certain reason, which is wrong, when the sum is actually due.^-^ § 414. Same. Other illustrations. Subject to the general rule as to good faith and intervening rights of bona fide dealers with the property, the following illustrations are given. Contract. Where the contract as to one item was im- properly set forth in the claim of lien, the lien is not void as to the other items concerning which the contract was correctly stated; otherwise the purpose and objects of the lien law would be defeated.--* Names. Where the statute required the claimant to state from whom the debt was due, it was held that a mistake in the name of the contractor would not vitiate the lien, if it appeared that the owner was not harmed by the error.--'' An honest mistake as to ownership, where the claimant was justified in assuming, for instance, that the husband was the reputed owner, will not, alone, vitiate the lien.^^® Amount due. A claim good in other respects will not be rejected, merely because the amount claimed is somewhat larger than can be sustained by the proofs, unless it be so wilfully false as to amount to a fraud ; -^' and, of course, where an overstatement of the amount due on a claim of lien is upon its face a mere clerical error, it will not invali- date the lien.^^^ "3 Harmon v. Ashmead, 68 Cal. 321, 323, 9 Pac. Rep. 183. ^ Linck V. Johnson, 134 Cal. xix, 66 Pac. Rep. 674. "5 Harmon v. San Francisco & S. R. R. Co., 86 Cal. 617, 619, 25 Pac. Rep. 124 (dictum); but citing- Putnam v. Ross, 46 Mo. 337. See JeweU v. McKay, 82 Cal. 144, 145, 23 Pac. Rep. 139 (the name of the purchaser or employer must be given). See "Names," §§379 et seq., ante. Colnriulo. Mistake not tending to deceive persons interested does not vitiate: Cannon v. Williams, 14 Colo. 21, 23 Pac. Rep. 456 (1883); Bitter v. Mouat L. & I. Co., 10 Colo. App. 307, 51 Pac. Rep. 519 (1883). =2« Santa Cruz R. P. Co. v. Lyons, 133 Cal. 114, 119, 65 Pac. Rep. 329. "' Continental B. & L. Assoc, v. Hutton, 144 Cal. 609, 611, 78 Pac. Rep. 21: Snell v. Payne, 115 Cal. 218, 222, 46 Pac. Rep. 1069. See "Demand," §§375 et seq., ante. ==•'' Snell V. Payne, 115 Cal. 218, 46 Pac. Rep. 1069, the court furtlier saying, " At most, it can only postpone it to the other liens " (dictum); but no authority which supports the proposition is given. See "Priorities," §786, post; " Amendment," § 415, post ; "Forfeiture," §§ 632, 633, post. Oregon. See Harrisburg L, Co. v. Washburn, 29 Greg. 150, 170, 44 Pac. Rep. 390. § 415 mechanics' liens. 368 Non-lienable items. Where the claim contains non-lien- able items that cannot be segregated from the general aggregate, the claim cannot be sustained;-^" but, as already pointed out,-^° when such items can be separated, and the claimant has acted in good faith, the lien will be upheld, even without the aid of such a provision as section twelve hundred and three a of the Code of Civil Procedure.^^^ § 415. Amendment of claim. Without statutory permis- sion, a claim of lien is not an instrument generally susceptible of reformation, ^^^ or of amendment after filing. ^^^ ^^ McClain v. Hutton, 131 Cal. 132, 141, 61 Pac. Rep. 273, 63 Id. 182, 622. As to effect on right to lien o£ non-Ilenable items, see 4 Am. & Eng. Ann. Cas. 836. Arizona. Where it appears that some of the articles were not furnished within the statutory time before the filing of the claim, the lien will be sustained as to the items within the statutory time, in the absence of fraud or bad faith, and when the claimant believed himself to be entitled to a lien for all of the items: W^olfiey v. Hughes (Ariz.), 71 Pac. Rep. 951. ^^'Ilen it is impossible from complaint and account to determine what part of the account charged is secured by a lien, and what part is non-lienable or unsecured, the court will not permit parol evidence to be introduced to cure the defect, and therefore the entire lien is lost: Wolfley v. Hughes (Ariz.), 71 Pac. Rep. 951. Nevada. Claiming more than actually due, by mistake, without fraud or wrongful intent, does not vitiate claim: Salt Lake H. Co. v. Chainman M. & E. Co., 137 Fed. Rep. 632, 638. Oregon. Honest mistake as to amount: See Cooper M. Co. v. Delahunt, 36 Oreg. 402, 60 Pac. Rep. 1, 51 Id. 649. If he knows the statement is untrue, or could have so known by the exercise of reasonable diligence, the lien fails: Id. See Barton v. Rose (Oreg.), 85 Pac. Rep. 1009. Utali. Honest mistake in statement of amount due will not vitiate claim: Culmer v. Caine, 22 Utah 216, 61 Pac. Rep. 1008, 1010. Wasliington. Non-lienable items that can be segregated when included in the claim do not establish fraud nor destroy lien, as they may have been included by mistake and under the honest belief that they were lienable; and, under a joint lien, are to be deducted pro rata from liens on several houses, as segregated: Powell v. Nolan, 27 Wash. 318, 67 Pac. Rep. 712, 720. See Dexter v. Olsen, 40 Wash. 199, 82 Pac. Rep. 286; Robinson v. Brooks, 31 Wash. 60, 71 Pac. Rep. 721. -■"' See § 377, ante. "» Kerr's Cyc. Code Civ. Proc, § 1203a. =32 Fernandez v. Burleson, 110 Cal. 164, 167, 42 Pac. Rep. 566, 52 Am. St. Rep. 75; Goss v. Strelitz, 54 Cal. 640, 644. See § 406, ante. =33 Madera F. & T. Co. v. Kendall, 120 Cal. 182, 183, 52 Pac. Rep. 304, 65 Am. St. Rep. 117. Colorado. Ineffectual amendment of claim: See Perkins v. Boyd (Colo.), 86 Pac. Rep. 1045. H 369 CONTENTS OP CLAIM OF LIEN. § 415 Certain clerical errors, however, may be regarded as cor- rected, when they are apparent upon the face of the claim. Thus where it appears by the complaint that, in his claim as filed, the claimant stated the name of the person by whom he was " occupied," the court construed the term to mean " employed." -^* Likewise a statement in the verification, that the affiant Avas the agent of " plaintiff," was construed to mean the agent of " claimant." ~^^ No aider by averment in complaint. A failure to state an essential fact in the claim, such as the name of the person to whom the materials were furnished, is not aided by the averment of the fact in the complaint, as the claim which is filed for record must be complete in itself at that time, in order to authorize its enforcement.-^® Nevada. Where the notice filed contained an otherwise suflicient description, a chang-e in the number of the lot. made on the state- ment in the recorder's office before the expiration of the time within which to file the same, made without fraud, does not vitiate it: Hunter v. Truckee Lodge, 14 Nev. 24, 30. New Mexico. Verification cannot be amended: Minor v. Marshall, 6 N. M. 194. 198, 27 Pac. Rep. 481. Oklahoma. Under a statute (Stats. 1893, § 4531) allowing amend- ments, an amendment to the verification was permitted: El Reno E. L. & T. Co. V. Jennison, 5 Okl. 759. 763, 50 Pac. Rep. 144; the court saying, "We hold the proper construction of this act to be that the mechanic's lien may be amended in any matter where, for similar reasons, a pleading could be amended": Blanshard v. Schwartz, 7 Okl. 23, 54 Pac. Rep. 303, 306. Oregon. The court cannot change the language used in the claim, by eliminating or substituting words, or by supplying omissions therefrom: Barton v. Rose (Greg.), 85 Pac. Rep. 1009. Washington. Am.endment allowed as in the case of pleadings, so long as interests of third parties may not be affected (under Ballin- ger's Ann. Codes and Stats., §5904): Olson v. Snake R. V. R. Co., 22 W'ash. 139, 60 Pac. Rep. 156; Greene v. Finnell, 22 Wash. 186. 00 Pac. Rep. 144; Dexter v. Olsen, 40 W^ash. 199, 82 Pac. Rep. 286, 287. Under this provision an amendment was allowed by adding the place of residence of the notary to the verification, and the third parties whose interests are not to be affected are only those wlio hav« acquired some interest subsequent to the filing of the lien notice, and the clause has no reference to those whose relation to the property had not been changed since sucli filing: Sullivan v. Treen, 13 Wash. 261, 43 Pac. Rep. 38. Under a previous statute the affidavit could not be amended by affixing the seal of the notary thereto: Stetson & Post M. Co. v. McDonald, 5 Wash. 496, 32 Pac. Rep. 108. ™ McDonald v. Backus. 45 Cal. 262, 264. See "Construction," §371. ante; "Notice," §§568 et seq., post. *•■« Parke & Lacy Co. v. Inter Nos O. & D. Co., 147 Cal. 490, 494, 82 Pac. Rep. 51. ^' Madera F. & T. Co. v. Kendall, 120 Cal. 182, 183, 52 Pac. Rep. 304. 65 Am. St. Rep. 117. Mech. Liens — 24 §416 mechanics' liens. 370 CHAPTER XXI. CLAIM OF LIEN (COxXTINUED). FILING CLAIM. § 416. Filing claim. In general. § 417. Statutory provisions. § 418. Purpose of provision requiring claims to be filed within a certain time. § 419. Same. In case of void contract. § 420. Place of filing claim for record. § 421. Original contract void. Necessity of filing claim. § 422. Time of filing claim. In general. § 423. Same. Computation of time. § 424. Time of filing, when not fixed by statute. § 425. Notice of completion or cessation of work. Statutory provis- ion. § 426. Same. Purpose and scope of provision. § 427. Same. Failure of owner to file notice. § 428. Same. In case of structures. § 429. Same. General rule. § 430. Time of filing claim. Certificate of architect. § 431. Same. Substantial or actual completion. § 432. Same. Abandonment of the w^ork. § 433. Same. Thirty days' cessation from labor. § 434. Same. Agreements affecting time of filing claims. Giving credit. § 435. Same. Void contract. § 436. Same. Mines and mining claims. § 437. Same. Grading, etc. § 416. Filing claim. In general.^ In several jurisdictions the statute requires that a notice of intention to file a claim of lien shall be filed, or a notice that snch a claim has been > As to time when statute of limitations begins to run agrainst mechanic's lien, see note 7 Am. & Eiig. Ann. Cas. 947. Time for tiling claims, under act of March 27, 1897, for work on public structures: See French v. Powell, 135 Cal. 636, 639, 68 Pac. Rep. 92. AVashlngton. See. generally, Lee v. Kimball (Wa^h.), 88 Pac. Rep. 1121. Material-man failing to file notice with school board: See Crane Co. V. JEtna I. Co. (Wash.), 86 Pac. Rep. 849. Claim must be filed under act of 189.S. ch. xxiv, p. 32, § 1, even thoug'h the railroad company has filed no bond: and no recovery can be had on such bond after the filing: of such claim: Laidlaw v. Portland V. & Y. R. Co., 42 Wash. 292, 84 Pac. Rep. 855. 371 FILING CL.UM OF LIEN. § 416 filed shall be served on the owner ;^ but the statutes gen- erally do not require such notice. This chapter treats particularly of the tiling of the claim of lien; the subject of service of notice on the owner to intercept paj'ments in the nature of a garnishment being left for later consideration.^ It has already been shown that the statutory provision as to filing the claim of lien must be complied with,* and in what cases such claim is required to be filed. It has also been shown that the object of filing the claim is : 1. To perfect the lien; and 2. To give notice by public record, for the protection of those who may deal (a) with the owner of the property, or (b) with the land itself; and further, 3. To inform the owner of claims of lien-holders." The inchoate right to a lien ceases to fexist after the statutory period for filing the claim of lien has passed." ^ Colorado. Notice of intention to file claim must be given, the statute specifying no particular form, and an error in the address is immaterial: Colorado I. W. v. Taylor, 12 Colo. App. 451, 55 Pac. Rep. 94:;, 945. Oklahoma. The notice of filing a mechanic's lien is not required to be served by an officer or any special individual, and the rules with reference to the return of an officer to a writ, or the service, do not apply: Ryndak v. Seawell, 13 Okl. 737, 76 Pac. Rep. 170 (under Code Civ. Proc, § 1963). The iirinciiial contractor is not required to serve notice of the filing of his lien, under § 6L'l of the Code of Civil Procedure, relating to liens of subcontractors: Ryndak v. Seawell, 13 Okl. 737, 76 Pac. Rep. 170. Utali. The subcontractor has forty days from the time of furnisli- ing the last materials in which to file a notice of intention to claim a lien, and the original contractor has sixty days from the time of tlie completion of his contract: Cahoon v. Fortune M. & M. Co., 26 Utah 86, 72 Pac. Rep. 437 (under Rev. Stats., §1386); Sanford v. Kunkel, 30 Utah 379, 85 Pac. Rep. 363, 365, 1012 (under Rev. Stats. 1898, § 1386); Culmer v. Caine, 22 Utah 216, 61 Pac. Rep. 1008, 1010 (under Sess. Laws 1890). " See '■ Notice to Owner," §§ 547 et seq., post. ' See J§ 354 et seq., ante; and see Meyer v. Quiggle, 140 Cal. 495, 497, 74 Pac. Rep. 40. •■ See §§ 365, 376, 388, 401, ante, and § 418, post. In Mars v. McKay, 14 Cal. 127, 128 (1856), decided under a statute which required the filing of an "account," with a description of the property, etc., the court seems to allude to the "account" as being hied for the purpose only of giving notice. Washington. Johnston v. Harrington, 5 Wash. 73, 79, 31 Pac. Rep. 316; Gates v. Brown, 1 Wash. 470, 474, 25 Pac. Rep. 914; Cowie v. Ahrenstedt, 1 Wash. 416, 418, 25 Pac. Rep. 458. « Provident M. B. L. Assoc, v. Shaffer, 2 Cal. App. 216, 83 Pac. Rep. 274; but see Hughes v. Hoover (Cal., Feb. 23, 1906), 84 Pac. Rep. 681. Vtali. The lien is not created until the claim is filed, and until then It is inchoate, but relates to the time of commencing the work: Elwell v. Morrow, 28 Utah 278, 78 Pac. Rep. 605 (under Rev. Stats. 1898. i 1386). §§417,418 mechanics' liens. 372 § 417. Statutory provisions. The California statute '' pro- vides: " [A] Every original contractor, [1] at any time after the completion of his contract, and [2] until the expiration of sixty days after the filing of said notice of completion or notice of cessation of labor by the owner,* and [B] every person, save the original contractor, claiming the benefit of this chapter, [1] at any time after the com- pletion of any building, improvement, or structure, or of the alteration, addition to, or repair. thereof, and [2] until the expiration of thirty days after the filing of said notice of completion or cessation, by said owner, or [3] within thirty days after the performance of any labor in a mining claim, must file for record with the county recorder of the county, or city and county, in which such property or some part thereof is situated, a claim; . . . provided, however, [C] that in any event all claims of lien must be filed within ninety days after the completion of said building, improve- ment, or structure, or the alteration, addition to, or repair thereof. Any trivial imperfection in the said work, or in the construction of any building, improvement, or structure, or of the alteration, addition to, or repair thereof, shall not be deemed such a lack of completion as to prevent the filing of any lien; and in all cases the occupation or use of a building, improvement, or structure, by the owner, or his representative, or the acceptance by said owner or his agent of said building, improvement, or structure, and cessation from labor for thirty days upon any contract or upon any building, improvement, or structure, or the alteration, addi- tion to, or repair thereof, shall be deemed equivalent to a completion thereof for all the purposes of this chapter." § 418. Purpose of provision requiring claims to be filed within a certain time. Under the contract between the owner and the contractor, the owner agrees to pay the ' Kerr's Cyc. Code Civ. Proc, § 1187; in effect, sixty days from March 27, 1897. As to what constitutes completion, see, generally, §§ 334 et seq., ante; "Notice of Completion," §§ 425 et seq., post. * As to provi.siou relating to filing of notice of completion or ces- sation of labor, see S§ 425 et seq., post. 373 FILING CLAIM OF LIEX. § 418 contractor a certain sum for constructing the building, and this sum is a fund which maj^ be held, under the statute, for the payment, so far as it will go, of all the claims of all the various subcontractors, for work and materials furnished by them to the contractor, who is the principal and head of all; and all the parties entitled to payment or contribution out of this fund should be able to reach the fund and get their proportionate shares thereof at the same time or within the same period of time. Besides, one subcontractor ought not to be able to reach this fund and appropriate it to the extent of his claim before another subcontractor could reach it; for if the fund should not be sufficient to pay the claims of all the subcontractors, then each subcontractor should be paid only a proportionate share thereof. Now, the amount of all the claims of all the subcontractors can be ascertained only after all the work and materials have been furnished and after the building has been completed, so far as the contractor is required to complete the same ; for the whole of the work may in fact be done by subcontrac- tors only, or the last item of work performed or materials furnished may be performed or furnished by a subcon- tractor. The building, in such a case, would be completed by a subcontractor; and the subcontractor completing the building, or furnishing the last item of work or material therefor, is entitled to his proportionate share of the general fund equally with the subcontractor who furnished the first item of work or material, or any intermediate portion there- of. Of course, when the contractor has furnished, through himself, or his subcontractors, all the work and material which he has agreed to furnish, then the building is com- pleted, so far as he is concerned, and is also completed so far as all the subcontractors under him are concerned; and the contractor and each of the subcontractors may then file their respective claims of liens, and each will then become entitled to his proportionate share of the fund. It is obvious that if a subcontractor may file his claim before the completion of the building at all, it may very well happen that the building may not be completed until more than ninety days after the claini is filed, and since the § 419 mechanics' liens. 374 statute " provides that no lien shall be binding for a longer period than ninety days after the same has been filed, unless proceedings be commenced in a proper court within that time to enforce the same, it follows that, under a different con- struction of section eleven hundred and eighty-seven, a suit might be maintained to enforce the lien of a subcontractor before the completion of the original contract, when valid. This would not only be to give one subcontractor a prefer- ence over another, not allowed by the statute, but might sub- ject the owner to suit, and possibly his property to sale, although strictly conforming to his contract. In further harmony with the conclusion that section eleven hundred and eighty-seven ^° fixes a common starting-point for all subcon- tractors under the same original contractor, is section eleven hundred and ninety-five,^^ which provides that " any number of persons claiming liens may join in the same action, and when separate actions are commenced, the court may con- solidate them." ^^ § 419. Same. In case of void contract. As the owner is liable for the value of all the labor done and materials furnished in the construction of a building, and as suits to enforce liens therefor must be commenced within ninety days after the filing of the claim of lien, there is a manifest propriety, where there is no valid contract for any of the work, in requiring that the building shall be completed be- fore any claims of lien are filed, in order that they may all be adjusted in a single action. If claims could be filed prior to the completion of the building, it may happen that it would be necessary to institute actions for their fore- closure before the building was completed, and while other laborers who would be entitled to have a lien thereon would be precluded not only from filing their claim of lien, but from seeking its enforcement.^^ 3 Kerr's Cyc. Code Civ. Proc, § 1190. " Kerr's Cyc. Code Civ. Proc, § 1187. " Kerr's Cyc. Code Civ. Proc, § 1195. « Roylance v. San Luis Hotel Co., 74 Cal. 273, 277, 20 Pac. Rep. 573, quoting and approving Perry v. Brainard (Cal., Dec. 19, 1885), 8 Pac. Rep. 882. 13 Davis V. MacDonough. 109 Cal. 547, 550, 42 Pac. Rep. 450. Nevada. See, however, Hunter v. Truckee Lodge, 14 Nev. 24, 28 (1875). 375 FILING CLAIM OF LIEN. §§ -120, 421 § 420. Place of filing claim for record.^* The claim must be filed " for record witli tlie county recorder of the county, or city and county, in which such property or some part thereof is situated." ^^ In case of railroad. The statute ^^ does not require the claim of lien to be filed for record in each county in which a railroad is situated; and where it lies in two counties, the claim may be filed in either county, as the courts have no power to amend the statute by requiring the filing of a claim in every county where any part of the property may be situated/' Removal of claim of lien from recorder's office. As the claim is made a matter of record, and the removal of the claim from the recorder's office does not defeat any object for which the claim is required to be filed, such removal does not affect the lien.^^ § 421. Original contract void. Necessity of filing claim. If the statutory original contract is void, in order that a " Kerr's Cyc. Code Civ. Proc, § 1189, which provides: "The recorder must record the claim in a book kept by him for that purpose, which record must be indexed as deeds and other conveyances are required by law to be indexed, and for which he may receive the .same fees as are allowed by law for recording deeds and other instruments." Kerr's Cyc. Pol. Code, § 4:i3(>, .siibd. 16. By this subdivision the county recorder is required to keep "an index of notices of meclianics' liens, labeled ' Mechanics' liens,' each page divided into three columns, headed respectively, ' Parties claiming liens,' ' Against whom claimed,' 'Notices when and where recorded.'" The same provision is found in § 121 of the County Government Act (Stats, and Amdts., p. 402, Hen- ning's General LaAvs, p. 221). It is by this index that a subsequent dealer with the property is to be guided in ascertaining whether there are any encumbrances upon the owner's title: Corbett v. Chambers, 109 Cal. 178, 182, 41 Pac. Rep. 873. Washington. See Garneau v. Port Blakeley M. Co., 8 Wash. 467, 36 Pac. Rep. 463. ^ Kerr's Cyc. Code Civ. Proc, § 1187. le Kerr's Cyc. Code Civ. Proc, § 1187. " Bringhai.x v. Knox, 127 Cal. 40, 44, 59 Pac. Rep. 198. Compare: "Filing Contract," SS 294 et seq., ante. As to nieelianics' lieus on railroads, see note 7 Am. & Eng. Ann. Cas. 629-672. Colorado. But where the statute required the notice to be filed in the county where the property is situate, the notice must be filed in every county wherein the property is situate: Arkansas River L. R. & C. Co. V. Flinn, 3 Colo. App. 381, 383 (canal-railroad), (1889). "• Mars V. McKay, 14 Cal. 127, 128 (1856). Wyoming. But see Fein v. Davis, 2 W^yo. 118 (1871). § '122 mechanics' liens. 376 laborer or material-man may preserve and enforce the lien provided for him by the statute, his claim therefor must be filed in the recorder's office with as much specification, and within the same time, as if he had himself made a contract for his labor or material directly with the owner/^ § 422. Time of filing claim. In general. Unless the claimant file his claim within the time allowed by the stat- ute, his lien is lost ; ^° and, on the other hand, the filing of " WiUamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 229, 237, 29 Pac. Rep. 629. 2" Walker v. Hauss-Hljo, 1 Cal. 184, 186; WeithofE v. Murray, 76 Cal. 508, 510, 18 Pac. Rep. 435; Pacific Mut. L. Ins. Co. v. Fisher, 106 Cal. 224, 232, 39 Pac. Rep. 758; Southern Cal. L. Co. v. Schmitt, 74 Cal. 625, 626, 16 Pac. Rep. 516; Joost v. Sullivan, 111 Cal. 286, 292, 43 Pac. Rep. 896; Santa Clara Valley M. & L. Co. v. Williams (Cal., Dec. 8, 1892), 31 Pac. Rep. 1128; Harmon v. San Francisco & S. R. R. Co., 105 Cal. 184, 188, 38 Pac. Rep. 632. Colorado. Changes insisted upon by the owner to correct work asserted not to liave been done in accordance with the contract are not to be regarded as immaterial, but as necessary parts of the con- tract, and the claim may be filed within the statutory period after such changes are made: Stidger v. McPhee, 15 Colo. App. 252, 62 Pac. Rep. 332. Montana. Alesina v. Stock, 8 Mont. 416, 20 Pac. Rep. 642; Alvord v. Hendrie, 2 Mont. 115; Davis v. Alvord, 94 U. S. 545, bk. 24 L. ed. 283. Furnishing of a .small last item as a subterfuge for filing a claim, when the time had really expired, does not bring the claim within the statutory time: See Aldritt v. Panton, 17 Mont. 187, 42 Pac. Rep. 767. Oregon. Forest Grove D. & L. Co. v. McPherson, 31 Oreg. 586, 46 Pac. Rep. 884. Furuisliiug of additional articles by agreement with the owner, after the expiration of the time limited for filing the lien, for the purpose of reviving the right, will not have that effect as against a mortgagee who is not a party to the transaction, even if such agree- ment is valid between the claimant and the owner: Inman v. Hen- derson, 29 Oreg. 116, 45 Pac. Rep. 300. See Curtis v. Sestanovich, 26 Oreg. 107, 37 Pac. Rep. 67. Where extra >vork is done or materials furnished by the contractor, during the performance of his agreement, as a part of or in further- ance of the same general object, it will be deemed, for the purpose of mechanics' liens, a part of the original contract, and the time within which to file a claim for the amount due on the contract and the extra work will commence to run from the date of the completion of the work as a whole: Hobklrk v. Portland B. Club, 44 Oreg. 605, 76 Pac. Rep. 776. As to running account, and %vhen mechanic's lien inust be filed on, see 2 Am. & Eng. Ann. Cas. 685; 7 Am. & Bng. Ann. Cas. 947. Utah. See Salt Lake L. Co. v. Ibex M. & S. Co., 15 Utah 440, 49 Pac. Rep. 832; Culmer v. Clift, 14 Utah 286, 47 Pac. Rep. 85; Morrison V. Carey-Lombard Co., 9 Utah 70, 33 Pac- Rep. 238; Carey-Lombard Co. V. Partridge, 10 Utah 322, 37 Pac. Rep. 572; Eclipse S. M. Co. v. Nichols, 1 Utah 252 (1869). 377 FILING CLAIM OF LIEN. § 422 the claim of lien before the time authorized by statute is premature, and no right to enforce a lien will be thereby- acquired.^^ Delivery of additional materials. Effect on right. When the time for filing a claim for materials has expired, a delivery of additional materials, not contemplated in the original order, and not needed nor used, cannot give nor revive a right to file a claim for a balance due on all the materials, including those furnished under the first order, and thus defeat a lien already foreclosed: Cahoon v. Fortune M. & M. Co., 26 Utah 86, 72 Pac. Rep. 437 (on mine, under Rev. Stats. 1898, S 1386). Contractor cannot keep alive or revive hi.s right to file a lien by tacking on or adding to his account by additional orders for labor or materials long after the time for filing his claim has expired: Cahoon V. Fortune M. & M. Co., 26 Utah 86, 72 Pac. Rep. 437 (in mine). Washington. Seattle & W. W. R. Co. v. Ah Kow, 2 Wash. Ter. 36, 3 Pac. Rep. 188. Time of tiling lien. Effect of superintendent's certificate of comple- tion. Within ninety days from cessation of performance or furnishing, under Ballinger's Ann. Codes, § 5904, notwithstanding previous cer- tificate of superintendent that the structure is finished: Washington B. Co. V. Land & R. Imp. Co., 12 Wash. 272, 40 Pac. Rep. 982. Same. Subsequent contract for material. And, notVFithstanding a subsequent contract for the furnishing of the rest of the materials, where the first contract has been broken ofC, the claim for the mate- rial under the first contract was required to be filed within ninety days after ceasing to furnish materials tliereunder: Pacific Mfg. Co. v. Brown, 8 Wash. 347, 36 Pac. Rep. 273. In BoLster v. Stocks. 13 Wash. 460, 43 Pac. Rep. 532, 534, 1099, it was said: "As to the time of the record of the lien, that is a matter over which the respondent has no control; he has done what the law requires of him when he files the lien for record." " Davis v. MacDonough, 109 Cal. 547, 550, 42 Pac. Rep. 450; Santa Monica L. & M. Co. v. Hege, 48 Pac. Rep. 69, s. c. on rehearing 119 Cal. 376, 378, 51 Pac. Rep. 555; Marchant v. Hayes, 120 Cal. 137, 138, 49 Pac. Rep. 840; Schwartz v. Knight, 74 Cal. 432, 434, 16 Pac. Rep. 235; Roy- lance V. San Luis Hotel Co., 74 Cal. 273, 277, 20 Pac. Rep. 573; Wil- lamette S. M. L. & M. Co. V. Los Angeles College Co., 94 Cal. 229, 237, 29 Pac. Rep. 629; Perry v. Brainard, 8 Pac. Rep. 882, 8 West Coast Rep. 429; Schallert-Ganahl L. Co. v. Sheldon (Cal., Feb. 9, 1893), 32 Pac. Rep. 235; Kerckhoff-Cuzner M. & L>. Co. v. Olmstead, 85 Cal. 80, 83, 24 Pac. Rep. 648. See Reed v. Norton, 90 Cal. 590, 600, 26 Pac. Rep. 767, 27 Id. 426; French v. Powell. 135 Cal. 636. 640, 68 Pac. Rep. 92. Prematurely filed claim of mechanic's lien cannot be enforced: Baker v. Lake L. C. & Irr. Co. (Cal. App., March 26, 1908), 94 Pac. Rep. 773. Colorado. Subcontractors' claims filed before thirty days " after completion " of the building are premature, and of no effect: Tabor- Pierce L. Co. V. International T. Co., 19 Colo. App. 108, 75 Pac. Rep. 150 (under Laws 1893, ch. cxvil, p. 318). Compare: Hart v. Mullen, 4 Colo. 512. Nevada. Contra: Hunter v. Truckee Lodge, 14 Nev. 24, 28. Oklahoma. "So long as a party's time for filing a mechanic's lien has not expired, he could file as many statements in liis efforts to make a good lien as he eliose": El Reno E. L. & T. Co. v. Jennison, 5 Okl. 759, 764, 50 Pac. Rep. 144. §§ 423. 424 mechanics' liens. 378 § 423. Same. Computation of time. The ordinary rules for the computation of time within which acts must be done apply generally in the case of the filing of claims of lien.^- The word " within," as used in the statute,-^ and in similar provisions of law, has been held to mean " not beyond," and any act is " within " a time named that does not extend beyond it.-* § 424. Time of filing, when not fixed by statute. Inde- pendently of the question of estoppel raised by the amend- ment of 1897 to section eleven hundred and eighty-seven,-"' Washington. Where the claim is prematurely filed, for the reason that the last portion of the materials furnished had not arrived, although on the way, the claimant has a right to file a second notice after the delivery of the materials: Huttig Bros. Mfg. Co. v. Denny Hotel Co., 6 Wash. 122, 32 Pac. Rep. 1073. - Kerr's Cyc. Civ. Code, § 10; Kerr's Cyc. Code Civ. Proc., § 12, and notes. 23 Kerr's Cyc. Code Civ. Proc., § 1187. 2* French v. Powell, 135 Cal. 636, 639, 68 Pac. Rep. 92, construing act of March 27, 1897, relating to filing claims for labor or material for public work. Montana. W^here there are separate contracts not constituting a running account for materials, and where there is no reasonably, if not perfectly, definite amount to be furnished from time to time under one entire contract, the claim must be filed within ninety days from the time when payment was due under each contract: A. M. Holter H. Co. v. Ontario M. Co., 24 Mont. 184, 61 Pac. Rep. 3, 7, 8 (under Code Civ. Proc, § 2131). Nevr Mexico. From time of last item: See Mountain E. Co. v. Allies, 9 N. M. 512, 56 Pac. Rep. 284, 285. Oregon. A claim for labor in a mine was required to be filed within sixty days after cessation from labor thereon, and the time is reckoned by excluding the first day, or day from or after which an act is done, or last day of service, and including the last of the period prescribed: Horn V. United States M. Co., 47 Oreg. 124. 81 Pac. Rep. 1009. First and last day for computing time: See note 49 L. R. A. 236. Washington. The claim of a material-man filed August 4th, the furnishing of materials beginning on March 19th and ceasing on May 6th, is ■within ninety days, all of the last day being given to file the claim: Seattle L. Co. v. Sweeney, 33 Wasli. 691, 74 Pac. Rep. 1001. Claim is not filed in time v»-hen the work was completed and accepted during the first days in October and the claim was filed April 3d: Ellsworth v. Layton, 37 Wash. 340, 79 Pac. Rep. 947. WVoming. An indebtedness becomes complete by performing the labor or furnishing the materials, and is considered complete, or to have "accrued," when the last item originally included in the account is furnished or done, and not when the last item remaining unpaid is so furnished or done: and the claim must be filed within ninety days after such accrual: Big Horn L. Co. v. Davis, 14 Wyo. 455, 84 Pac. Rep. 900, 85 Id. 1048 funder Rev. Stats. 1-899, § 2893). » Kerr's Cyc. Code Civ. Proc, § 1187. 379 FILING CLAIM OP LIEN. § 4-24 where the statute requires the filing of the claim in order to perfect the lien, and does not provide any particular time within which the same shall be done, it must be filed within a reasonable time.-*' It has been shown that contractors, subcontractors, and laborers may have a lien for the lal)or performed upon a building, improvement, or structure, whether the work was for the " construction, alteration, addition to, or repair," or not.^^ Filing after completion. The statute ^^ provides for the filing of claims " after the completion of any building, improvement, or structure, or of the alteration, addition to, or repair thereof," and does not provide for the filing of a claim after the completion of work on objects other than those specified. The expression, " every person, save the original contractor, claiming the benefit of this chapter," must file his claim after such completion, would not seem necessarily to indicate that the claim must be filed after the completion of all kinds of labor ; if there should be such case, the general principle laid down in the case above cited would be applicable ; -'• namely, that the claim must be filed within a reasonable time. The fact that the expres- sion, " every person, save the original contractor, claiming the benefit of this chapter," must file a claim after the completion of such work, is followed by the clause, " or within thirty days after the performance of any labor in a mining claim," a claim must be filed, shows that the clause containing the expression " every person " does not pro- *• California P. W. v. Blue Tent Consol. H. G. M. (Cal.. Oct. 8, 1889). 22 Pac. Rep. 391. " See "Labor for W^hich a Lien is Given," §§ 130 et seq., ante. ^'^ Kerr's Cyc. Code Civ. Proc, § 1187. Period of alteration or otlier «ork on building extending over a long time, wiiere the plans and specifications for the work were made as the same progressed, the court held tlie improvement to be an entire undertaking, and that the time for filing mechanics' liens commenced to run from the date on which the work or other alteration was actually or constructivelj' completed: Farnham v. California S. D. & T. Co. (Cal. App., May 18, 1908), 6 Cal. App. Dec. 721, 96 Pac. Rep. 788. Occupancy of building by OY*ner during course of alteration there- on, where such occupancy not inconsistent with further work on the building, will not set the statute of limitations running against the filing of claim for mechanic's lien: Id. ^ California P. \V. v. Blue Tent Consol. H. G. M. (Cal., Oct. 8, 1889), 22 Pac. Rep. 391. § 425 mechanics' liens. » 380 vide for every contingency that may arise.^° But, in the case of " structures," where the owner's laborer works upon the same for a specified time, it was held that he must file his claim within thirty or sixty days from the termi- nation of the employment. ^^ § 425. Notice of completion or cessation of work. Statu- tory provision. The California statute ^- provides : " The owner of any property [A] on which labor has been per- formed, or [B] for which materials have been furnished to be used in the construction, alteration, addition to, or repair, either in whole or in part, of any work mentioned in section eleven hundred and eighty-three of this code, must, [1] within ten days after the completion thereof, or [2] within forty days after cessation from labor upon [a] any unfinished contract, or upon [b] any unfinished building, improvement, or structure, or [c] the alteration, addition to, or the repair thereof, file for record in the office of the county recorder of the county, or city and county, in which such property or some part thereof is ■"> See § 436, post. 31 Weithoff V. Murray, 76 Cal. 508, 510, 18 Pac. Rep. 435. But see Malone v. Big- Flat M. Co., 76 Cal. 578, 586, 18 Pac. Rep. 772. This decision is not in accord with the principle in the later case of Cali- fornia P. W. V. Blue Tent Cons. H. G. M. (Cal., Oct. 8, 1889), 22 Pac. Rep. 391, that where the statute does not provide a time within which the claim must be filed, it must be filed within a reasonable time, unless inferentially " a reasonable time " be considered to be substantially the same time provided in the statute for similar cases. ''^ Kerr's Cyo. Code Civ. Proc., § 1187, as amended March 27, 1897. See, generally, §§ 334 et seq., ante. What provision requires. Ovvuer. The provision, in terms, only requires the owner to file the notice of completion or cessation from labor, although all persons claiming an interest in said property shall be estopped, etc., by a failure of the owner to file such notice. The word " owner " applies only to the holder of the legal title or of the fee: See Hinckley v. Field's B. & C. Co., 91 Cal. 136, 138, 27 Pac. Rep. 594; Lambert v. Davis, 116 Cal. 292, 48 Pac. Rep. 123; Gorbett v. Chambers, 109 Cal. 178, 182, 41 Pac. Rep. 873. Con.stitiifionality. There may be some question as to the consti- tutionality of this provision, so far as it relates to persons simply ■' claiming an interest " in the property, distinct from the legal title. Notice of completion o£ or cessation from work not having been filed by the owner, claim of mechanic's lien may be filed at any time within ninety days from the date of the actual completion of the work: Farnham v. California S. D. & T. Go. (Cal. App., May 18, 1908), 6 Cal. App. Dec. 721, 96 Pac. Rep. 788. n 381 FHJXG CLAIM OF LIEN". § 426 situated, a notice setting forth [3] the date when [a] such buikling, improvement, or structure, or [b] the alteration, addition to, or repair thereof, was actually completed, or [e] in ease of cessation from labor for thirty days, the date on which such cessation actually occurred, and said notice shall also contain [4] the name and [5] the nature of the title of the person who caused the said building, improve- ment, or structure to be erected, or said alteration, addition to, or repair to be made, and also [6] a description of the property sufficient for identification, and said notice must be [7] verified by said owner or some other person in his behalf. [C] In ease any such owner neglect to file said notice as herein required, within the time herein re- quired, then the said owner and all persons deraigning title from him, and all persons claiming an interest in said property, shall be estopped, in any proceedings brought to foreclose any mechanic's lien or liens, provided for in this chapter, from maintaining a defense therein based on the ground that said lien or liens have not been filed within the time provided in this chapter. Said notice, when so filed for record, must be [8] recorded by the county recorder with whom the same is filed for record, and the [9] fee for recording the same shall be the sum of one dollar. . . . Provided, however, [D] that in any event all claims of lien must be filed within ninety days after [1] the com- pletion of said building, improvement, or structure, or [2] the alteration, addition to, or repair thereof." § 426. Same. Purpose and scope of provision. The pro- vision quoted in the last preceding section was evidently intended to remedy, in a measure, the difficulty Avhich claim- ants experienced in determining when their claims should be filed; but it is not free from doubts and uncertainties. If the claim of lien, under the proviso above set out, must be filed within ninety days after the completion of the building, improvement, or structure, or the alteration, ad- dition to, or repair thereof, tlie OAvner might set up as a defense that the same was not so filed, and the operation of the estoppel mentioned in the first part of the section would § 427 mechanics' liens. 382 be limited to cases other than those where the claim was filed after said ninety days. Reason for the enactment. There is good reason for the enactment of the proviso; for, otherwise, the owner might never file the notice of completion, and the question whether there were other lien-holders entitled to share in the fund would be continually open, and there would be no limitation upon the time of filing claims and commencing suits to foreclose the liens, the advantages of which limita- tion having already been pointed out.^^ Street-work, whether included. It is questionable whether the provision as to such notice applies to street-work, etc., in incorporated cities mentioned in section eleven hundred and ninety-one.^* Where the claim of lien was filed more than the statu- tory period after the filing of a notice of cessation of the work by the contractor, the work having been abandoned by the contractor in an unfinished condition, it is immaterial to urge an objection that the finding is against evidence, where the evidence shows that there was a cessation of work at an earlier date.^^ An error in the date of a cessation from labor upon aban- donment by the contractor, in a verified notice required by the statute,^® if shown, does not prejudice claimant, if the notice was filed within the statutory time after such cessa- tion, notwithstanding the notice is required to be verified." § 427, Same. Failure of owner to file notice. The fail- ure of the owner to file the notice of completion or cessation from labor does not indefinitely postpone the time within which claims must be filed ;^^ and even though the owner fails to file such notice within the required time, subclaim- ants under a valid contract must file their claims within « See §§ 418, 419, ante. ** Kerr's Cyc. Code Civ. Proc, § 1191. See Beatty v. MiHs. 113 Cal. 312, 45 Pac. Rep. 468. «5 Boscow V. Patton, 136 Cal. 90, 68 Pac. Rep. 490, upon appeal from a jtidgnient for defendants. .■!6 Kerr's Cyc. Coile Civ. Proc.. § 11S7. " Boscow V. Patton. 136 Cal. 90. 68 Pae. Rep. 490. 88 Buell & Co. V. Brown, 131 Cal. 158, 160, 63 Pac. Rep. 167. ■ 383 FILING CLAIM OP LIEN. § 428 one hundred and twenty days from cessation from work ; otherwise the claim is too late.^" In any event, the owner is not estopped to set up the fact that he claimant had not filed his claim within ninety days from the actual or statu- tory completion of the building, improvement, or struc- ture, or the alteration, addition to, or repair thereof. § 428. Same. In case of structures. This section relates to the objects enumerated under the designation of struc- tures.^" Before the amendment of 1897 to section eleven hundred and eighty-seven,^^ it was held that the original contractor must file his claim of lien within sixty days after the completion of his contract, irrespective of the time when the building might be completed.*- And the language of the section seems broad enough to cover any work done by the " original contractor," who claims a lien under the chapter relating to mechanics' liens. Before such amendment to the section, subcontractors,*^ owner's material-men,** con- s' BueU & Co. V. Brown, 131 Cal. 158, 160, 63 Pac. Rep. 167. In this case the building never was actuaUy completed. Work stopped for thirty days, and ninety days were thereafter allowed in which to file claims of Hen. *" See §§ 166 et seq., ante. " Kerr's Cjo. Coile Civ. Proc, § 1187. " Pacific Mut. L. Ins. Co. v. Fisher, 106 Cal. 224, 232, 39 Pac. Rep. 758; Davis v. MacDonough, 109 Cal. 547, 550, 42 Pac. Rep. 450; La Grill V. Mallard, 90 Cal. 373, 374, 27 Pac. Rep. 294; White v. Soto, 82 Cal. 654, 658, 23 Pac. Rep. 210. Idaho. Original contractor, sixty days: Bradbury v. Idaho & O. L. I. Co., 2 Idaho 239, 10 Pac. Rep. 620. Nevada. The original contractor may file his claim of lien within sixty days: Salt Lake H. Co. v. Cliainman M. & E. Co., 128 Fed Rep. 509, s. c. 137 Fed. Rep. 632 (under Cutting's Comp. Laws, § 3885). " Harmon v. San Francisco & S. R. R. Co., 105 Cal. 184, 188, 38 Pac. Rep. 632; Davis v. MacDonough, 109 Cal. 547, 549, 42 Pac. Rep. 450; Joost v. Sullivan, 111 Cal. 286, 292, 43 Pac. Rep. 896; McLaughlin v. Perkins, 102 Cal. 502, 505, 36 Pac. Rep. 839. " Schwartz v. Knight, 74 Cal. 432, 433, 16 Pac. Rap. 235; Sparks v. Butte County G. M. Co., 55 Cal. 389, 391. See Barrows v. Knight, 55 Cal. 155. 158. Alaska. A material-man must file his claim of lien witliin thirty days after furnishing the materials: Jorgensen Co. v. Sheldon, 2 Alas. 607, 609 (under Civ. Code, § 266). Colorado. Where all items of an account relate to one trans- action, in a continuous account, the rig' t to initiate a lien accrues from the date of the last item: Cary H. Co. v. McCarty, 10 Colo. App. 200, 50 Pac. Rep. 744 (under act of 1883, §30); and interruption for short periods does not desti'oy the contiiniity of the work, where there Is no attempt to abandon: Id. See Small v. Foley, 8 Colo. App. 435. § 428 mechanics' liens. 384 tractor's material-men/^ contractor's laborers,*® owner's laborers,*' and every person, save the original contractor, claiming the benefit of the chapter on mechanics' liens on real property,*® were required to file their claims within thirty days after th^^ actual completion of the building, improvement, or structure, or of the alteration, addition to, 447, 47 Pac. Rep. 64; and see, generally, Hart v. Mullen, 4 Colo. 512 (forty days before or after completion) (1872). Idaho. Material-men, sixty days: Colorado I. W. v. Riekenberg. 4 Idaho 262, 38 Pac. Rep. 651. Montana. Where materials are delivered under separate and dis- tinct contracts, the claim should be filed within the time prescribed by the statute after the delivery under each of such contracts: Helena S. H. & S. Co. v. Wells, 16 Mont. 65, 40 Pac. Rep. 78. The oivner's niaterial-nian must file his claim within ninety days of the furnishing of the last item: Missoula M. Co. v. O'Donnell, 24 Mont. 65, 60 Pac. Rep. 594, 60 Id. 991 (under Code Civ. Proc, § 2131). Oklahoma. Statement must be filed within sixty days after the last item of material is furnished: Ferguson v. Stephenson-Brown L. Co., 14 Okl. 148, 77 Pac. Rep. 184 (under WMlson's Stats. 1903, ch. Ixvi, § 4819). Oregon. Under Hill's Ann. Laws. §§ 3673, 3678, the claim could be filed within thirty days from completion of tlie building, although more than thirty days from the time of furnishing the last materials: Fitch V. Howitt, 32 Oreg. 396, 52 Pac. Rep. 192; Curtis v. Sestanovich, 26 Oreg. 107, 37 Pac. Rep. 167; Ainslie v. Kohn, 16 Oreg. 363. 19 Pac. Rep. 97. See Forest Grove D. & L. Co. v. McPherson, 31 Oreg. 586, 46 Pac. Rep. 884. But see Harrisburg L. Co. v. Washburn, 29 Oreg. 150, 172, 44 Pac. Rep. 390. which appears to hold that it may also be filed within thirty days after furnishing the last material. *^ Willamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 229, 237, 29 Pac. Rep. 629; Giant Powder Co. v. San Diego F. Co., 78 Cal. 193, 196, 20 Pac. Rep. 419 (statutory completion — acceptance, occupation, and use), s. c. 88 Cal. 20, 25, 25 Pac. Rep. 976, and 97 Cal. 263, 264, 32 Pac. Rep. 172; Santa Clara V. M. & L. Co. v. Williams. (Cal., Dec. 8, 1892), 31 Pac. Rep. 1128; Bianchi v. Hughes, 128 Cal. 24, 56 Pac. Rep. 610. See San Joaquin L. Co. v. W^elton, 115 Cal. 1, 3, 46 Pac. Rep. 735, 1057; Gordon Hardware Co. v. San Francisco & S. R. R. Co., 86 Cal. 620, 621. 25 Pac. Rep. 125. Oregon. Contractor's material-men should file their claims within thirty days after completion of the building: Curtis v. Sestanovich, 26 Oreg. 107, 37 Pac. Rep. 67; Ainslie v. Kohn, 16 Oreg. 363, 19 Pac. Rep. 97 (1885); and it is unimportant whether the claim was filed within thirty days after the work and materials were furnislied: Id. « Willamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 229, 237, 29 Pac. Rep. 629; Leppert v. Lazar, 99 Cal. xviii, sub nom. Lippert v. Lazar, 33 Pac. Rep. 797. " Keener v. Elagle Lake L. & Irr. Co., 110 Cal. 627, 631, 43 Pac. Rep. 14; Ward v. Crane. 118 Cal. 676, 679, 50 Pac. Rep. 839. « Kerr's Cyc. Code Civ. Proc., § 1187; Davis v. MacDonough, 109 Cal. 647, 550, 42 Pac. Rep. 450; Marchant v. Hayes, 120 Cal. 137, 138, 49 Pac. Rep. 840. 385 FILING CLAIM OP LIEN. § 429 or repair thereof, or after the statutory' completion thereof, and not within thirty daj's after the completion of their respective contracts. AA^hat constitutes " actual " and " statutory " completion has already been considered.*® § 429. Same. General rule. So far as " structures " are concerned, the amendment requiring the owner to file a notice of completion or cessation from work, discussed in the preceding sections, has not changed the requirement that the said claim of lien must be filed after the actual or statutory completion of the building, improvement, or struc- ture, or of the alteration, addition to, or repair thereof. As shown above,^" the filing of the claim before that time is premature, and confers no right. Since the amendment of 1897 to section eleven hundred and eighty-seven.^^ all such claimants, save the original contractor, may file their claims at any time after the completion (actual or statutory) of any building, improvement, or structure, or of the alter- ation, addition to, or repair thereof, and until the expira- tion of thirty days after the filing of said notice of comple- tion or cessation by said owner, as set forth in the section ; but " in any event [that is, even if the owner does not file notice of completion or cessation], all claims of lien must be filed within ' ninety days after the completion of said building, improvement, or structure, or of the alteration, addition to, or repair thereof." ^^ *' What constitutes actual completion, and in what cases an occu- pation, use, or acceptance of a building or cessation from work thereon for thirty days is the statutory eiiuivalent of completion for the purpose of filing- liens, was treated in detail in §§ 334 et seq., ante. Wliere tlie occupation of the building by the o^vner is neitlier exclusive, nor inconsistent with a continuance by the contractor in the completion of the contract, and the owner does not act toward.s the contractor, in reference to the building, in such a way as by neces- sary implication to give notice that the building had been accepted in satisfaction of the contract, and the contractor continues tlie work, with full knowledge by the owner of the circumstances under which the work is being done, the statute will not be set in motion as to the time when claims should be filed, by reason of such occupation: Or- landi v. Gray, 125 Cal. 372, 374, 58 Pac. Rep. 15. «• See § 422, ante. " Kerr's Cyc. Code Civ. Proc, 5 1187. •■■^ This does n4, large tracts of non- mineral land, town lots, water rights, etc., cannot be included in one statement or proceeding: Big Blackfoot M. Co. v. Bluebird M. Co., supra; especially wlien not under one contract: Id. Non-contigiiou.s land may be included under one continuing con- tract: Id. 458; Helena etc. Co. v. Wells, 16 Mont. 65, 40 Pac. Rep. 78. Nevada. Salt Lake H. Co. v. Chainman M. & E. Co., 137 Fed. Rep. 632. Land and reduclion-workN u unity: See Gould v. Wise, 18 Nev. 253, 3 Pac. Rep. 30. § 445 mechanics' liens. 400 § 445. Same. Mining machinery. Under the express provisions of section eleven hundred and eighty-three/" the lien extends to " the works owned and used by the owners for reducing the ores from such mining claim or claims or real property so worked as a mine." Before the amendment of 1907 to section eleven hundred and ninety-two,-" mining machinery placed upon a mine, under a contract by which it retained its status as per- sonalty^, did not become a part of the realty, and Avas not sub- ject to mechanics" liens for work done upon the mine; -^ and a person performing labor in a mining claim for the assign- ees of a vendee, by virtue of a contract that if the vendee failed to purchase the mine as agreed, he could remove certain mining apparatus placed by him on the mine above- ground, secures no lien upon such personal property, although permanently affixed to the mine, where the machinery is leased by a third person to the vendee with the option of purchase, and the lessor need not give notice of ownership of such personal property, where the option to purchase was not exercised. ^^ 19 Kerr's Cyc. Code Civ. Proc, § 1183. =»> Kerr's Cyc. Code Civ. Proc, § 1192, as amended Stats. 1907, p. 577, Kerr's Stat.s. and Aindts. 1906-07, p. 481. =1 Jordan v. Myres, 126 Cal. 565, 567, 58 Pac. Rep. 1061. See Hendy V. Dinkerhoff, 57 Cal. 3, 40 Am. Rep. 107. " Jordan v. Myres, 126 Cal. 565, 58 Pac. Rep. 1061 (decided in 1899). " Tlie general rule is, as to sales upon execution, tliat the pur- chaser acquires tliereby only sucli title and interest as the judgment debtor liad, and tlie rule is tlie same wliether tlie sale follows the lien of attachment or is upon execution without such lien; and the rule also applies at sales under foreclosure of mortgages upon real estate — the purchaser ordinarily takes the risk of title: Boggs v. Fowler, 16 Cal. 559, 76 Am. Dec. 561. We cannot see in what way the sale upon foreclosure of a mechanic's lien can be said to carry any greater interest than the owner of the property had at the time tlie lien attached, whatever may be the rule as to a bona fide purchaser or mortgagee of the land without notice. In the case before us, the owner of the mine never liad any interest in the personal property, and ' he acquired no interest in it, as against appellant, by its being affixed to the realty: Hendy v. Dinkerlioff, supra; and appellant's lessees expressly reserved the right to remove this machinery. It must result tliat respondent secured no lien upon this personal property by virtue of the statute, for he could only have a lien upon tlie property of the owner of the mine. Any other view of the matter would, we think, greatly retard development, especially of mining property, wliere it often becomes necessary for the owner or. his lessee to borrow or hire the use of machinery, which, for the time being, in order to utilize it, must be attixed to the realty. No one would have tlie temerity to 401 EXTENT OP LIENS. § 445 Effect of amendment of 1907. The amendment of the statute, however, has changed this rule, under certain con- ditions, by requiring the filing of the lease for record, or the posting of a notice of non-responsibility. As thus amended, section eleven hundred and ninety-two -^ provides: " And all mining machinery placed upon or in any mining claim or claims, or real property used as a mine, under a lease or other agreement by the terms of which such machinery shall not lose its identity as the personal prop- erty of the lessor, and which is used in the operation and working of such mining claim or claims, or real property used as a mine, shall be deemed to be a fixture attached to such mining claim or claims, or real property used as a mine, for the purposes only of the lien hereinbefore men- tioned, and shall be subject to such lien, unless such lessor shall within ten days after such machinery shall have been delivered at such mining claim or claims, or real property used as a mine, file and record such lease or other agree- ment in the office of the county recorder of the county in which such machinery shall be used as aforesaid; or within said ten days shall post a notice in some conspicuous place in some building on said mining claim wherein said machin- ery is to be used, stating therein that said machinery is the property of said lessor and has been leased or contracted to be sold to the person operating said mine, and that said machinery will not be liable for any lien provided for in this chapter." loan or hire machinery to another person for such purposes if he had to take the risk of losing his property through the liens of laborers or material-men working in or supplying material to the mine. Tlie courts find no difficulty in upholding the rights of a vendor undei- a conditional sale of personal property as against the creditors of the vendee, for the reason that the title remains in the vendor; and we can see no reason why the rule should not be the same where tlie owner of the personal property hires or leases it. The fallacy of respondent's position is in assuming that the situation of the personal property in its relation to the realty is the sole criterion by which to judge of its character; whereas 'the intention with which an article of per.«onal property is attached to the realty, whether for temporary or permanent improvement, has, within certain limits, quite as much to do with the determinntion of the question whetlier it has thereby become a permanent fixture, as has the way and manner in which it is attached': 1 Jones on Mortgages, §429": .Jordan v. Myres 126 Cal. 56.5. 569, 58 Pac. Rep. 1061. 2' Kerr's Cyc. Code Oiv. Proc, § 1192, as amended 1907, Kerr's Stats, and Aiiiflts. 1!»0«-0r, p. 481. Mech. Liens — 26 §§ 446, 447 mechanics' liens. 402 § 446. Same. Grading and other work. Lot. The stat- ute -* provides that the person grading or doing certain other work upon a lot in an incorporated city shall have a lien upon the lot. Under this section the lien is not lim- ited to any artificial subdivision upon the surface of the earth, or to any official designation upon the map, but its meaning includes whatever territory is owned by the per- son, which he may cause to be graded under a single con- tract, and may include two blocks of land in a city, which were held to be a " lot " within the meaning of the section.^^ § 447. Property viewed as an entirety.^** The property, viewed as an entirety, or the relation of the object upon which the work is done to the " property " subject to the lien, is closely akin to the subject last discussed. In the preceding sections,^^ the matter was considered from the point of view of the extent of land ; in this place it will be regarded from the point of view of whole and part, or the property contemplated as a structural unity.^* *« Kerr's Cyc. Code Civ. Proc, § 1191. 25 Warren v. Hopkins, 110 Cal. 506, 42 Pac. Rep. 986. Oregon. " The word ' lot,' when applied to real estate, is indefinite in its dimensions, but is a portion of land that has been set off or allotted, whether great or small. . . . The legislature must have intended to use the term 'lot' in the sense of a city as contradis- tinguished from a rural lot." It is to be understood, in the sense of a city lot, as bounded and described on the recorded plats of the city, or as subdivided and bounded by conveyances of the owners them- selves, or by other acts done by themselves or the city autliorlties in exercising the right of eminent domain in opening and establishing streets; but no lien was given for grading a ten-acre tract in a city: Pilz V. Killingsworth, 20 Oreg. 432, 433, 26 Pac. Rep. 305 (construing "lot" as used in § 3676, Hill's Code, similar to § 1191, Kerr's Cyc. Code Civ. Proc.). 2* See, generally, as to buildings and other property subject to me- chanics' liens, note 78 Am. Dec. 694. =" See §§ 438 et seq., ante. ^"^ It has already been seen that the claim of Hen should, in general, be filed against a structure as an entirety: See §§ 399 et seq., ante. This discussion may therefore seem a repetition; but the thing against which the claim of lien must be directed is not necessarily the entire thing to which the lien extends: See " Object," §§ 166 et seq., ante. Colorado. WHiere several structures erected on a lot of land are designed for a united enjoyment, the law treats them as a unit in relation to the liens which it gives, and althougli the work was per- formed on one, the lierj extends to the whole lot: Cary H. Co. v. McCarty, 10 Colo. App. 200, 218, 50 Pac. Rep. 744. See Small v. Foley, 8 Colo. App. 435, 47 Pac. Rep. 64. Oregon. As to structures upon separate parcels of land, see Wil- lamette S. M. L. & M. Co. V. Shea, 24 Oreg. 40, 32 Pac. Rep. 759. 403 EXTENT OF LIENS. § -I-IT The general rule with reference to the subject discussed in this section is, that the lien extends to the structure as an entirety.^^ Railroad. Thus the lien extends to an entire railroad, and not merely to the section of the road on whicli the work was done.^° Machine. So where a machine becomes a fixture, the work done upon and materials furnished for it are regarded as done and furnished for the building or structure."^ Lien on portion of a structure. There is no provision for a lien upon a i)ortion of a I)uikling, or for the sale of a part of a building to satisfy- a lien upon the whole.^- 2» WiUamette S. M. Co. v. Kremer, 94 Cal. 205, 211, 29 Pac. Rep. 633. See Ellison v. Jackson W. Co., 12 Cal. 542, 554; Horn v. Jones, 28 Cal. 195, 204. Montana. The lien is not restricted, as against a lessor, to the precise materials furnished, but extends to the entire building erected by the lessee: Montana L. & Mfg. Co. v. Obelisk M. & C. Co., 15 Mont. 20, 37 Pac. Rep. 897. New Mexico. Mountain E. Co. v. Miles, 9 N. M. 512, 56 Pac. Rep. 284, 285. Ore^^ou. So the lien was given upon a mill for work done upon a dam, or breakwater attached thereto; for a mill made to run by hydraulic power would be worthless without the structures necessary to secure and obtain the water, and the labor bestowed upon such structures is of the same utility and importance to the owner of the mill as the labor put into the mere building. Whatever enters into or is connected with the mill, essential to its use, ought to be treated, under the statute, as a part of said mill: Willamette Falls T. & M. Co. V. Remick, 1 Oreg. 169. Utah. Where lumber is delivered under one contract, for structures all erected on the same piece of ground, to be used together in prose- cuting the business of smelting, a lien exists upon the entire premises for the lumber used in each structure, and one lien can be created thereon for the security of the entire bill: Salt Lake L. Co. v. Ibex M. & S. Co., 15 Utah 440, 49 Pac. Rep. 832. ■•" Cox V. Western Pac. R. Co., 44 Cal. 18, 28; Bringham v. Knox, 127 Cal. 40, 43, 59 Pac. Rep. 198. See Stevenson v. Woodward, 3 Cal. App. 754, 86 Pac. Rep. 990. Am tit application of nieolianlcH' liens to railroads, see 7 Am. & Eng. Ann. Cas. 269. Oregon. But see Giant Powder Co. v. Oregon Pac. R. Co., 42 Fed. Rep. 470, 474, 8 L. R. A. 700, and see note 34, this chapter, post. fjien iiKiy fllert against an extension of a railroad only: Ban v. Columbia S. R. Co., 117 Fed. Rep. 21, reversing s. c. 109 Fed. Rep. 499. See § 4 49, post. " Donahue v. Cromartie, 21 Cal. 80, 86. See "Fixtures," §§95, 185 et seq., ante. New Mexico. Post v. Miles, 7 N. M. 317, 327, 34 Pac. Rep. 586. == Willamette S. M. Co. v. Kremer, 94 Cal. 205, 211, 29 Pac. Rep. 633; Brunner v. Marks, 98 Cal. 374, 33 Pac. Rep. 265. Colorado. See Small v. Foley, 8 Colo. App. 434, 443. Washington. Wright v. Cowie, 5 Wash. 341, 31 Pac. Rep. 878. §§ 448, 449 mechanics' liens. 404 § 448. Same. Distinct objects on one parcel of land. In the case of '* structures," where the labor is done and mate- rial is furnished by subclaimants for a separate and distinct object of tlie labor, which is part of that to be performed under an original contract, the lien is confined primarily to the object upon which the particular work was done. Thus where liens are claimed by subclaimants for labor done and materials furnished in the improvement and construction of additions to an old building, upon part of the lot, although the contract includes the erection of another and new build- ing upon another part of the same lot upon which other liens are claimed, the former liens properly extend to the old building only.^* § 449. Same. Railroads, canals, gas-works and water- works. It is sometimes difficult, Avithin the rules laid down in the preceding sections, to determine what the " structure as an entirety " is, especially in the case of railroads, canals, gas-works and water-works, and the like, where a number of structures and connecting links may be involved, each case depending for its solution upon its own peculiar facts; and the subject is full of peculiar difficulty.^* With refer- 33 Brunner v. Marks, 98 Cal. 374, 376, 33 Pac. Rep. 265. As to material furnished for grouii of biiilding.'.s, see 2 Am. & Sng. Ann. Cas. 683. ^* In this connection the supreme court (speaking of Cox v. Western Pac. R. Co., supra), has said: " Under the facts sliown, the lien could not attach to a portion of the road, and the court said: " It would render the statute absurd to liold that one contractor or subcontractor could acquire a lien upon a bridge, another upon a tunnel, and a third upon a culvert, all of which constitute portions of a railroad.' The contention of appellants would require a lien for erecting a depot building to replace one destroyed by fire, or a bridge washed away by flood and belonging to a company operating a railroad already com- pleted and in operation, to claim a lien upon the entire system, how- ever extensive, of which the depot or bridge formed a part. But we do not think this is the correct meaning of the statute: Hill v. La Crosse & M. R. Co., 11 Wis. 223, 80 Am. Dec. 783, where a lien was upheld upon a railroad depot building and the lot on which it stood; Purtell V. Chicago P. & B. Co., 74 Wis. 132, 42 N. W. Rep. 265, where a lien upon a railroad bridge was held good. So far as any principle found in Midland R. Co. v. Wilcox, 122 Ind. 84, 23 N. E. Rep. 506, may have any analogy to the principle involved here, that case seems to me unfavorable to appellant's contention. The railway company owned the line from Anderson to Lebanon, only a portion of which (Anderson to Noblesville) was completed and in operation; from Noblesville to Lebanon it was incomplete and was under construction. For the 405 EXTENT OF LIENS. § 449 enee to railroads, many of the eases are based upon the particular language of the state statutes; some upon the work on this latter section the lien was filed, and on this section alone. The lien was sustained on the uncompleted portion of the road. Of the cases dealing- with water-works, gas-works, and the like, tliat of National F. & P. Works v. Oconto Water Co., 52 Fed. Rep. 43, affirmed 59 Fed. Rep. 19, is a fair illustration. The lien claimant had fur- nished the pipe for the water system of the city of Oconto, which had been laid in the streets and connected with the pumping-works and well of defendant. This and like cases are examples of continuous and contemporaneous works, and are also examples where, of the works comprising- the ' structure,' each is useless without the other, or where they are so interdependent and intimately related that they must be reg-arded as an entirety. " Here, however, the Bear Valley reservoir had been in use long before the Santa Ana canal [upon divisions 1 and 2 of which the lien was claimed] was projected, and so also had the Alessandro pipe line [running from division 2 to the end of the proposed division 3]. The division 3 of the projected canal was graded in disconnected parts, but there remained yet to be obtained rights of way, without which completion was impossible, and finally work on this division was abandoned, and the whole property passed into the hands of receivers,, and no work has been done on this division since September, 1893, so far as we know. We find no case among those cited by appellants parallel in its facts with the case before us, and no principle upon W'hich their view of the matter can be upheld. " Respondent relies upon South Fork Canal Co. v. Gordon, 73 U. S. (6 Wall.) 561, bk. 18 L. ed. 894, as conclusive against appellants' con- tention that the lien should extend over the Alessandro pipe line. Just why appellants should insist that respondents are entitled to no lien at all because they have asked it on too little of appellants' prop- erty might challenge inquiry. But, aside from this, we think the facts here bring the case within the principles discussed and decided in the case last cited. From a reservoir near Placerville a canal or flume extended to the South Fork of the American River — about twenty- five miles. When the contract with Gordon was entered into, the fiume was completed from the reservoir to Long Canon — eleven and two thirds miles. TVater flowing through it was used by means of several outlets for mining purposes. It was fed from sources other than the South Fork. Gordon s contract was for the extension of this canal. The work commenced where the existing work ended, and reached to the South Fork of the American River, the object being to make use of that river as a feeder, and to increase the -water-supply. They were distinct works, as having been completed at different times and by different contractors, and the upper section had already been in use. The points of identity were continuity and a common object, use, and ownership. The court below held that Gordon had a lien on the entire length of the canal. On appeal, the supreme court reversed the decree, holding that the lien extended only to that por- tion of the canal constructed by him. The Alessandro pipe line was already in use, and -nas fed by water from Mill Creek,; it was no part of the plan to supply this pipe from the canal — on the contrary, the plan was to abandon the pipe line. Besides, it was totally inadequate to carry the water of the canal, and would have been useless wlien the canal was completed, unless used to carry the water of Mill Creek, in which case it would have been distinct from the canal. . . . We cannot perceive upon what principle the lien should be made com- § 449 mechanics' liens. 406 ground of public policy supposed to exist in certain states against giving a lien upon different sections of a railroad, and upon the theory that it is an entirety, and that there can be no severance or dislocation of the road as a unit. pulsory as to division 3, or wliy it should be lost entirely because not claimed on the pipe line. Division 3 is not only incomplete, but there remain rights of way to be obtained, without which the surveyed line and the work done have no value or utility. No one can say that it ever will be completed, and if so completed, it yet remains to com- plete division 4, to make division 3 of value. The pleading-s and liens [with two aspects — against divisions 1, 2, and 3, and against divisions 1 and 2] would justify our holding that this division might be in- cluded, but we see no reason for compelling plaintiff to so extend its claim; nor do we see any legal ground upon which to do so": Pacific R. M. Co. v. Bear Valley Irr. Co., 120 Cal. 94, 99, 101, 52 Pac. Rep. 136, 65 Am. St. Rep. 158. The materials were furnislied for divisions 1 and 2, and the judg- ment foreclosed the lien on divisions 1 and 2. The defendant let the work by separate contracts on each of the divisions, and not by an entire contract for the whole work. This case contends that no doubt was cast by Brooks v. Burlington & S. W. R. Co., 101 U. S. 443, bk. 25 L. ed. 1057, on South Fork Canal Co. v. Gordon, supra. See also Giant Powder Co. v. Oregon Pac. R. Co., 42 Fed. Rep. 470, 474, 8 L. R. A. 700. Colorado. See Arkansas River L. K. & C. Co. v. Flinn, 3 Colo. App. 381, 383, 33 Pac. Rep. 1006 (canal), (1889). Idaho. Separate and distinct canal built subsequently to main canal, and part of a system of canals, held subject to the lien, inde- pendently of the rest of the system: Creer v. Cache Valley C. Co., 4 Idaho 280, 38 Pac. Rep. 653, 95 Am. St. Rep. 63. Nevada. Unconnected mines: See Salt Lake H. Co. v. Chainman M. & E. Co., 137 Fed. Rep. 632. Oregon. A single lien upon separate buildings is allowed when they are erected for any common purpose or connected use, as in the case of barns, stables, and other outhouses within the curtilage of a dwelling, and used in connection with it, or where the buildings have been erected for some general and connected use: Willamette S. M. L. & M. Co. v. Shea, 24 Oreg. 40, 47, 32 Pac. Rep. 759; Willamette Falls Co. v. Remick, 1 Oreg. 169, 170. See Dalles L. & M. Co. v. Wasco Woollen M. Co., 3 Oreg. 527 (under an early statute giving a lien upon "the building" upon which tlie labor was done). In Pacifle Rolling 31ills Co. v. James Street Construction Co., 68 Fed. Rep. 966, 970. 16 C. C. A. 68. 29 U. S. App. 698, it was contended that material furnished for a street-railway could form the basis of a lien upon the power-house. The court, however, said: "It is said that the road and power-house are one, and indissolubly connected; that the cable-railway is Incapable of operation, except in connection with the power-house wherein the cable is operated, and whereby all the move- ments of cars is accomplished; that the road without the power-house, and the power-house without the road, are equally important to accomplish results, ana that notwithstanding the fact that the appel- lant has furnished no material for the power-house, it has a lien thereon, from the fact that it has furnished material for the railway track, which is so intimately and necessarily connected therewith. . . . In a certain sense, it is tru6 that the cable-road in the street and the power-house on the lots are so intimately connected that the one may be said to be appurtenant to the other. But, by the terms of the 407 EXTENT OP LIENS. § 450 § 450. Same. Lien on building alone. False represen- tations as to ownership. When a contractor falsely repre- sents himself to his subclaimants as the owner of the land, they have a right of lien only against the building for which they have furnished labor or materials, and the structure may be severed and sold, in the absence of any showing that statute [1 HiU's Code, §§ 1663, 1665], no reference is made to appur- tenances, and no lien is expressly created therefor, and there is noth- ing in its provisions, or in the interpretation given thereto by the state courts, to justify the court now in holding that it contemplates a lien upon a building, or upon tlie lot upon which it stands, for materials furnished in the construction of appurtenances not included In the contract for the construction of the building, nor situate upon land in which the owner of the building has an interest. The cases relied upon by the appellant's counsel come short of sustaining the doctrine on which his contention rests. In Beatty v. Parker, 14 Mass. 523, 526, 6 N. E. Rep. 754, a drain-pipe, extending from the cellar of a house through tiie cellar-wall and the yard and the street into a sewer, the construction of which was included in the contract for building the house, was held to be a part of the house, and it was held that a lien was provided therefor under the lien law, and that it was immaterial that the title to the street is not in the owner of the house. But the decision was based upon the fact that a portion of the drain- pipe was in and was a part of the house on which the lien was attempted to be enforced, and was included in the contract for its construction. In this respect the facts differ materially from those in the case at bar. In Badger L. Co. v. Marion W. S., E. L. & P. Co., 48 Kan. 182, 29 Pac. Rep. 476, 15 L. R. A. 652, it was shown that the de- fendant company owned land on which was a building and machinery for generating electricity to be used in connection with its electric wires and poles, which it had placed through the streets, under a franchise therefor. The plaintiff furnished poles to support the wires in the streets. It was held that he had a lien on the lots on which the building and machinery were situated, but it was so expressly decided under the language of the Kansas statute, which provided liens for materials furnished to 'any building, or to the appurtenance of any building'; and it was found by the court that the wires and poles were appurtenances to the building. But in Parmalee v. Hambleton, 19 111. 614, in a case where a house, and vault under the sidewalk of a street, were constructed under a single contract, it was held that the vault, although an appurtenance to the house, was not subject to a mechanic's lien, under a statute which conferred a lien upon any one who, under a contract with the owner of a lot, should furnish ' labor or materials for erecting or repairing any building or tlie appurte- nances of any building on such land or lot." The court said: ' This certainly means that both the building and appurtenance should be upon the lot.' " In Giant I'owder Co. v. Oreg«»u Pacific H. Co., 42 Fed. Rep. 470, 474, 8 L. R. A. 700, it was said: "If the effect of the transaction is to give the plaintiff a lien on the whole road, it may sell the whole road. But my own judgment is, that, even if the plaintiff might claim a lien upon the whole road, it may, nevertheless, limit its lien by its notice to the part or section of the road for the construction of which it furnished the material." See also Ban v. Columbia S. R. Co., 117 Fed. Rep. 21, 54 C. C. A. 407, reversing s. c. 109 Fed Rep. 499. § 451 mechanics' liens. 408 its removal would in any wise injure the land. It is only when the laud belongs to the person who caused the build- ing to be constructed, or who had an interest therein, that such land or interest may also be charged, the lien on the building being the principal thing.^^ § 451. Same. Mining claims and mines. In considering the question of the extent of the lien, " mining claims " and mines must be carefully distinguished from " structures." ^® The statute ^^ provides that any person who performs labor in any mining claim or claims, or in or upon any real prop- erty worked as a mine, has a lien upon the same, and the works owned and used by the owners for reducing the ores from said mining claim or claims, or real property so worked as a mine, for the work or labor done or materials furnished by each, respectively.^^ The general rule in reference to mining claims is, that the lien extends to the claim as an entirety, and that a lien can- not be filed against a portion thereof; for example, the portion upon which the work was done or for which the materials were furnished, as the pit, shaft, or quarry alone. ^^ A lien, likewise, cannot be claimed upon a structure which is part of a larger structure, or part of the entire property in a mining claim; the lien extends to and must be filed upon '5 Linck V. Meikeljohn, 2 Cal. App. 506, 508, 84 Pac. Rep. 309. '« Pacific R. M. Co. v. Bear VaUey Irr. Co., 120 Cal. 94, 98, 52 Pac. Rep. 136, 65 Am. St. Rep. 158; Williams v. Mountaineer G. M. Co.. 102 Cal. 134, 139, 34 Pac. Rep. 702, 36 Id. 388. See § 182, ante. Montana. See Big Blackfoot M. Co. v. Bluebird M. Co., 19 Mont. 454, 458, 48 Pac. Rep. 778. " Kerr's Cye. Code Civ. Proc, § 1183. ^ Helm V. Ciiapman, 66 Cal. 291. 292. 5 Pac. Rep. 352, 5 West Coast Rep. 127. Material-man not limited to separate structure in mininjs^ claim on which the repairs were made, but he has a lien upon the whole mining claim for the materials to be used and actually used on the same: Silvester v. Coe Q. M. Co., 80 Cal. 510, 511. 22 Pac. Rep. 217. Colorado. Lien allowed on whole mining property for labor and material in constructing a house contiguous to and for use of mine: Keystone M. Co. v. Gallagher. 5 Colo. 23 (1872). Oregon. But as to tramway, mill, and mine not being an " entire " structure, so as to require, claim against mine also for work on mill and tramway, see W'atson v. Noonday M. Co„ 37 Oreg. 287, 60 Pac. Rep. 994. 409 EXTENT OF LIENS. § 452 the whole mining claim, and not only to the mill, tramway, boarding-house, and reduction-works upon the claim. ^^ § 452. The lien as limited by contract.*^ This section and the following one relate not only to original contracts, but also to contracts of all lien claimants. It has already been fully shown *^ that where there is a valid original contract subclaimants are bound by the terms, covenants, and condi- tions of the same.*2 It is not intended at this point to discuss ^'> WiUiams v. Mountaineer G. M. Co., 102 Cal. 134, 138, 34 Pac. Rep. 702, 36 Id. 388. See Hamilton v. Delhi M. Co., 118 Cal. 148, 151, 50 Pac. Rep. 378; Tredinnick v. Red Cloud Consol. M. Co., 72 Cal. 78, 84, 13 Pac. Rep. 152; Malone v. Big- Flat G. M. Co., 76 Cal. 578, 583, 18 Pac. Rep. 772: Jordan v. Myres, 126 Cal. 565, 567, 58 Pac. Rep. 1061. See §§ 130 et seq.. §§ 185 et seq., ante. Oregon. See Watson v. Noonday M. Co., 37 Oreg-. 287, 60 Pac. Rep. 994, 996. « See also §§45 et seq.; "Subcontractor," §§66 et seq.; "Material- man," §§ 77 et seq.; "Laborers," §§ 104 et seq.; "Valid Contract," §§ 286 et seq.; "Effect of Validity of Contract," §§315 et seq.; and "Aban- donment," § 358, ante. See Chappius v. Blankman, 128 Cal. 362, 365, 60 Pac. Rep. 925. Colorado. See Groth v. Stahl, 4 Colo. App. 8, 30 Pac. Rep. 1051; Ditto V. Jackson, 3 Colo. App. 281, 282, 33 Pac. Rep. 81. Lien elaiuied as against the Interest of a minor: See Seely v. Neill (Colo.), 86 Pac. Rep. 334. Receiver. Claimants furnishing labor or materials for a receiver of a mine are presumed to know whether or not he possesses the powers which he assumes to exercise; and the expenses of a receiver, even if he was acting under an order of court specifically empowering him to carry on such business, cannot be satisfied out of the property, to the prejudice of those holding prior subsisting liens: Hendrie & B. Mfg. Co. V. Parry (Colo.), 86 Pac. Rep. 113. Ha^Yaii. See Hackfeld v. Hilo R. Co., 14 Hawn. 448, 451. " See preceding note. *=> See "Valid Contract," §§ 286 et seq., ante; W^alsh v. McMenomy, 74 Cal. 356, 359, 16 Pac. Rep. 17; Dingley v. Greene, 54 Cal. 333. 336; Henley v. Wadsworth, 38 Cal. 356, 361 (1862); Bowen v. Aubrey, 22 Cal. 566. See Wilson v. Barnard, 67 Cal. 422, 423, 7 Pac. Rep. 845. But see Quale v. Moon, 48 Cal. 478, 482. In Willamette Steam Mills Lumber and Manufacturing Co. v. 1ms Angeles College Co., 94 Cal. 229, 237, 29 Pac. Rep. 629, it is .said: "It is only 'in case of a contract for the work,' duly filed, that the amount of the lien is limited by the contract price." This makes the rule applicable to statutory original contracts, and narrows it more than the decisions justify; but, limiting the language to the matter dis- cussed, namely, the effect of the invalidity of the contract, its meaning is clear. See Stimson M. Co. v. Braun, 136 Cal. 122, 125, 68 Pac. Rep. 481. 89 Am. St. Rep. 116, 57 L. R. A. 726; Brill v. De Turk, ISO Cal 241 244, 62 Pac. Rep. 462. Colorado. See Aste v. Wilson, 14 Colo. App. 323, 59 Pac. Rep. 846. Utali. See Sierra Nevada L. Co. v. Whitmore, 24 Utah 130, 66 Pac. Rep. 779, 781: Culmer v. Caine. 22 Utah 216. 61 Pac. Rep. 1008,' 1009. Wa.skington. But see Bell v. Groves, 20 W^ash. 602, 56 Pac. Rep 40L §§453,454 mechanics' liens. 410 in detail the subject here considered, as it is elsewhere treated from other points of view, and reference thereto is made in the notes. § 453. Same. Statutory provision. The statute *^ pro- vides that " in case of a contract for the work between the reputed owner and his contractor, the liens shall extend to the entire contract price, and such contract shall operate as a lien in favor of all persons, except the contractor, to the extent of the whole contract price, and after all such liens are satisfied, then as a lien for any balance of the contract price in favor of the contractor." ** § 454. Same. General interpretation of provision. Where nothing is due to the original contractor under valid statu- tory original contract, by reason of full payments under its terms, the interest of the owner of the structure therein is not subject to a lien.*^ No lien exists in favor of subclaim- ants beyond the amount due under the terms of a valid contract. *" The aggregate amount of liens, so far as the « Kerr's Cyc. Code Civ. Proc, § 1183, as amended Stats. 1903, p. 84. " It has been held, under a previous statute, that if there is no existing lien on a valid original contract, none exists on the subcon- tracts: Dingley v. Greene, 54 Cal. 333, 336; Dore v. Sellers, 27 Cal. 588, 594, 596. See § 272, ante. But see " Impairment of Lien," § 284, ante. « See Blinn L. Co. v. Walker, 129 Cal. 62, 61 Pac. Rep. 664. « O'Donnell v. Kramer, 65 Cal. 353, 4 Pac. Rep. 204; Turner v. Strenzel, 70 Cal. 28, 30, 11 Pac. Rep. 389. See Nason v. John, 1 Cal. App. 538, 540, 82 Pac. Rep. 566. Colorado. Chicago L. Co. v. Newcomb, 19 Colo. App. 265, 74 Pac. Rep. 786, 789; Mclntyre v. Barnes. 4 Colo. 285. See Charles v. Hallack L. & M. Co., 22 Colo. 283, 295, 43 Pac. Rep. 548. Ha'«vaii. The lien in favor of the subcontractor is not limited to the amount payable under the original contract to the principal con- tractor: Allen V. Redward, 10 Hawn. 151, 154; Pacific H. Co. v. Lin- coln, 12 Hawn. 358, 362. Nevada. Contra, under act of 1875: Lonkty v. Cook. 15 Nev. 58; Hunter v. Truckee Lodge, 14 Nev. 24, 25, where it was held that sub- claimants had direct liens, regardless of payments made to the original contractor prior to the time within which the law required notice of their claim to be recorded. (This follows the " Pennsylvania system," as distinguished from the " New York system," the latter being followed in California, where there is a valid contract.) Xew Mexico. Contra, Hobbs v. Spiegelberg, 3 N. M. 222, 357, 5 Pac. Rep. 529 (same principle as Nevada). Oregon. See Smith v. Wilcox, 44 Oreg. 323, 74 Pac. Rep. 708, 75 Id. 710. 411 EXTENT OF LIENS. §§ 455, 456 owner's liability is concerned, must not exceed the price as fixed by the valid original contract.*^ § 455. Same. Contract as notice. This subject has been more fully considered in another place, and what was there said will not be repeated here.*® A contract either to lease a mine, the property of an estate, or to hire a person to work the same, which is signed by a person as executor, without authority of court, if it is notice of anything, is notice of everything it contains, and would be notice to the con- tractor's laborers, sufficient to prevent a lien upon the mine, if known.*® § 456. Same. Price. Value. The phrase in section eleven hundred and eighty-three,^° that subclaimants shall have a lien " for the value " of the labor performed or materials fur- nished, is not used in contradistinction to " price " or " agreed value." It was not the intention that the contractor, material-man, or laborer who contracts for a certain sum should have a lien for a greater sum, upon the ground that the value of what he did or furnished is greater. " It is probably true that where a subcontractor, material-man, or Washington. The Nevada and New Mexico rule was foHowed under the code of 1881, and the California rule was rejected: Spokane Mfg. & L. Co. V. McChesney, 1 Wash. 609, 21 Pac. Rep. 198. Wyoming. See Davis v. Big Horn L. Co., 14 Wyo. 517, 85 Pac. Rep. 980. " Whittier v. WMlbur, 48 Cal. 175, 177; Wilson v. Barnard, 67 Cal. 422, 423, 7 Pac. Rep. 845; Dore v. Sellers, 27 Cal. 588, 594 (1862); Pacific M. L. Ins. Co. v. Fisher, 106 Cal. 224, 233, 39 Pac. Rep. 758. See Wig-g-ins V. Bridge, 70 Cal. 437, 439, 11 Pac. Rep. 754; Gibson v. Wheeler, 110 Cal. 243, 245, 42 Pac. Rep. 810; California I. C. Co. v. Bradbury, 138 Cal. 328, 330, 71 Pac. Rep. 346, 617. See also "Notice," |§ 547 et seq., post. See §§ 284, 285, ante. Oregon. But see Watson v. Noonday M. Co., 37 Oreg. 287, 60 Pac. Rep. 994, 996 (under Hill's Ann. Laws, §3678; liability on payments made by owner to others than persons furnishing labor or materials for the structure). Utah. Sierra Nevada L. Co. v. Whitmore, 24 Utah 130, 66 Pac. Rep. 779, 781. See Morrison & M. Co. v. Willard, 17 Utah 306, 53 Pac. Rep. 832, 70 Am. St. Rep. 784; Teahan v. Nelson, 6 Utah 363, 23 Pac. Rep. 764. « See § 316, ante. *» Chappius v. Blankman, 128 Cal. 362, 364, 60 Pac. Rep. 925. •• Kerr'a Cyc. Code Civ. Proc, S 1183. § 457 mechanics' liens. 412 laborer agrees with the original contractor for more than he is entitled to, upon the understanding between them that it shall be made out of the property, there would be such a fraud as would vitiate the claim. But, aside from such a case, we think that the word ' value,' as used in section eleven hundred and eighty-three,^^ is to be construed so as to mean ' agreed value.' " ^^ § 457. Same. Contract of subcontractor and contractor. In speaking of the contracts of subcontractors, the supreme court has said : " Are the employees of the subcontractor subject to all the conditions that may be created by the account between the contractor and the subcontractor? If the account is consistent with the terms of the contract entered into between the contractor and the subcontractor, and payment has not been prematurely made, there can be no doubt that the employees of the subcontractor are not en- titled to demand from the contractor or employer an amount exceeding the sum then due the subcontractor according to his agreement with the contractor. . . . The contrary doctrine cannot be true, unless it can be demonstrated that a party who has fully complied with the terms of his agreement can be held responsible for an amount exceeding the amount he agreed to pay. The mere fact that a portion of the work was done and the materials furnished by the employees of the subcontractor could not entitle him to receive, either directly or indirectly, through payments to his employees, a greater sum than he would have been enti- tled to had he personally performed all the labor and fur- nished the materials in performance of the subcontract." °' " Kerr's Cyc. Code Civ. Proc, § 1183. « Jewell V. McKay, 82 Cal. 144, 150, 23 Pac. Rep. 139. Utah. Sierra Nevada L. Co. v. Whitmore, 24 Utah 130, 66 Pac. Rep. 779, 781. And in the absence of a special contract fixing the value of the services, etc., the limit of the lien would be the reasonable value of the services: Id. VVashingrton. " While it is true that the owner of the building would not be bound by the contract made between his contractor and the subcontractor, if it was shown to be fraudulent or improvident, yet, in the absence of sUch showing, it must be presumed that the" contract is such as would be enforced by the courts": Spears v. Law- rence, 10 Wasli. 368, 3"], 38 Pac. Rep. 1049. 4.5 Am. St. Rep. 789. ^ Dore V. Sellers, 27 Cal. 588. 594. It was also said (p. 595): "The 413 EXTENT OF LIEXS. § 458 § 458. Same. Claimants under subcontractors. If the contractor has paid the subcontractor according to the terms of his valid contract with him before notice duly given him by the subclaimants, under an early statute the claimants under the subcontractor were not entitled to demand any- thing from the contractor or owner, nor to enforce a lien.^* It seems that in all cases, and notwithstanding the fact that the statutory original contract may be void, subclaimants are bound by the terms of their own subcontracts.^^ statute, for the protection of employees, holds the payment made before it fell due according- to the terms of the contract void as against the unsatisfied claims of the employees; but if payment has been made according to the terms of the contract, and before the material-man or laborer has given notice of his claim according to law, we find no provision in the statute holding the employer or the original contractor liable for the payment of such claim, and cer- tainly there is no rule of the common law leading to such a result." There seems to be no provision in the present statute, however, for giving notice by employees of subcontractors to an original con- tractor. See "Notice to Owner," §§ 547 et seq., post. =< Dore V. Sellers, 27 Gal. 588, 595. See Macomber v. Bigelow 126 Cal. 9, 15, 58 Pac. Rep. 312. As to state of account between original contractor and his sub- contractor, who asserts a lien upon the fund in the hands of the owner, see Los Angeles P. B. Co. v. Los Angeles P. B. & D. Co '? Cal App. 303, 304, 83 Pac. Rep. 292. Montana. But see Merrigan v. English, 9 Mont. 113, 22 Pac. Rep 454, 5 L. R. A. 837; Alvord v. Hendrie, 2 Mont. 115. OreROM. See Coleman v. Oregonian R. Co., 25 Greg. 286, 35 Pac. Rep. 656, with reference to railroads (under Laws 1889, p. 75). "■■' See -'Rights of Subcontractors," §5 70 et seq., ante, and "Void Contract," §§ 319 et seq., ante. § 459 mechanics' liens. 414 CHAPTER XXIII. LIMITATIONS ON LIENS (CONTINUED). ESTATES A^D INTERESTS SUBJECT TO LIENS. I. By Contract. § 459. Plan of discussion. § 460. Estates or interests bound by contractual relation with the holder thereof. Statutory provision. § 461. Same. General rule. § 462. Same. Fee or legal title subject to lien. S 463. Same. Vendee being in possession. § 464. Same. Lessee being in possession. § 465. Same. Title being held in trust. § 466. Same. Interest of vendee in possession bound. § 467. Same. Interest of lessee bound. § 468. Same. Homestead bound. I. BY CONTRACT. § 459. Plan of discussion. In this chapter we shall con- sider the estates and interests in lands which are subject to mechanics' liens by contract, and in the following chap- ter those by estoppel, where no question of priority as between such estates or interests arises. In the succeeding chapter, on priorities, the relative rights of the owners of such estates or interests, as between themselves, as well as with reference to liens for labor performed upon or mate- rials furnished for the property, will be treated in detail. The discussion here will naturall}^ include a brief reference to the subject of agency for the owner, in regard to which subject, later on, an extended development will be required ; and, also, and under this general head in the following chapter, the topic of notice of non-responsibility provided for by several statutes Avill opportunely find a place. Uncertainty of cases as to principle of decision. It may be suggested, moreover, that the cases have not always clearly pointed out upon what principle the decision is rendered, where the statute provides for notice of non- responsibility; and it is difficult, at times, to determine 415 ESTATES AND INTERESTS SUBJECT. § 460 whether the basis of the judgment is merely the agency — actual, ostensible, or statutory — of the person causing the improvement to be niade, in behalf of the owner, or under the principle of statutory estoppel by failure to post such notice of non-responsibility. § 460. Estates or interests bound by contractual relation with the holder thereof. Statutory provision. In the sec- tions immediately following, we will consider estates and interests as affected by contract with the owner directly, or through his agent, actual or ostensible. Section eleven hundred and eighty-five ^ provides : " The land upon w^hich any building, improvement, well, or structure is constructed, ... is also subject to the lien, if, at the commencement of the work, or of the furnishing of the materials for the same, the land belonged to the person who caused said building, improvement, well, or structure to be constructed, altered, or repaired, but if such person owned less than a fee-simple estate in such laud, then only his interest therein is subject to such lien." ^ > Kerr's Cyc. Code Civ. Proc, § 1185. As to e»«tate.s or interests bound by estoppel, see §§ 469 et seq., post. == Lothian v. Wood, 55 Cal. 159, 160. Under vonstructiou gfiven to act of 1855-56, it was held that a mechanic's lien might be had upon whatever interest the person had, who caused the superstructure to be made. If the party owned only the superstructure, then the lien would attach only to that; but if he also owned the land, the lien would embrace it also, and any interest in the land which might be held under execution would be subject to such a lien: McGreary v. Osborne, 9 Cal. 119, 123. As to rights of lioensee, see Marchant v. Hayes, 120 Cal. 137, 138, 49 Pac. Rep. 840, 52 Id. 154; and Eaton v. Rocca, 75 Cal. 93, 95, 16 Pac. Rep. 529. As to autltority of g;iiardians, trustees, executors, and otliers acting; In a representative capacity to confer rig-lit to nieclianic's lien, see note 61 Am. Dec. 691. As to " building' contract.-*," agreement of sale, effect on mechanic's lien, see note 61 Am. Dec. 689. Ail to creation of riglit to mechanic's lien by minors and others under personal disability, see note 61 Am. Dec. 693. As to estates or interests affected by mechanic's lien, see notes 45 Am. Dec. 678; 13 L. R. A. 702. As to equitable estate being chargeable ^vith mechanic's lien, see notes 45 Am. Dec. 678; 61 Am. Dec. 690. As to mechanic's lien on grantee of contracting owner, see note 61 Am. Dec. 699. As to mechanic's lien on homestead property, see note 9 L. R. A. 805. § 461 mechanics' ltens. 416 Statutory agency. The provision of the law creating statutory agency will be considered hereafter.^ § 461. Same. General rule. The general rule is, that whatever interest the person causing the work to be done or materials to be furnished had in the land is subject to the liens,* whether the improvement is caused by him As to nieolinnic's lien on leasehold estates, see notes 3 Am. & Eng. Ann. Cas. 1096; 45 Am. Dec. 678. As to mechanic's lien on interest of lessees and tenants for life, see notes 45 Am. Dec. 678; 61 Am. Dec. 697. A.S to mechanic's lien in case of joint tenants and tenants in common, see note 61 Am. Dec. 691. As to power of tenant to bind fee, see note 61 Am. Dec. 698. As to who has such ownership or relation to property that he can bind it by mechanic's lien, see note 61 Am. Dec. 688. As to -^That interest or estate mechanic's lien attaches, see notes 13 L. R. A. 702; 45 Am. Dec. 678. ^ See, generally, "Agency," §§ 572 et seq., post. Arizona. Same principle: Bremen v. Foreman, 1 Ariz. 413, 25 Pac. Rep. 539 (ixnder Comp. Daws, p. 248, § 4). Colorado. Tritch v. Norton, 10 Colo. 337, 15 Pac. Rep. 680 (1881); Shapleigh v. Hull, 21 Colo. 419, 41 Pac. Rep. 1108. JXew Mexico. See Post v. Miles, 7 N. M. 317, 326, 34 Pac. Rep. 586 (interest in the improvement). rtah. As to contracting directly with owner (act of 1890, § 1), see Morrison v. Carey-Lombard Co., 9 Utah 70, 33 Pac. Rep. 238. Lien on diteli. So the lien attaches to a right of way of a ditch, obtained under U. S. Rev. Stats., §§ 2339, 2340, 7 Fed. Stats. Ann. 1090, 1096, as the work progresses: Garland v. Bear Lake & R. W. & Irr. Co., 9 Utah 350, 34 Pac. Rep. 368. Washington. See Cutter v. Striegel, 4 Wash. 346, 30 Pac. Rep. 326. Ditch. No ownersliip in land. Where there is no ownership of or interest in the land through which the ditch is constructed, there is no lien: Nelson v. Clerf, 4 W'ash. 405, 30 Pac. Rep. 716. Street-railway. Likewise of a street-railway: Front Street C. R. Co. V. Johnson, 2 W'ash. 112, 25 Pac. Rep. 1084, 11 L. R. A. 693; Pacific R. M. Co. V. James Street Const. Co., 68 Fed. Rep. 966, 968, 16 C. C. A. 68, 29 U. S. App. 698. Building separate from land. And there can be no lien upon the building separate from the land whereon the same is situated: Kel- logg V. Littell & S. Mfg. Co., 1 Wash. 407, 408, 25 Pac. Rep. 461; Pacific R. M. Co. V. James Street Const. Co., 68 Fed. Rep. 966, 968, 16 C. C. A. 68, 29 U. S. App. 698. Community property: See Sagmeister v. Foss, 4 W^ash. 320, 30 Pac. Rep. 80, 744; Littell & S. Mfg. Co. v. Miller, 3 Wash. 480, 28 Pac. Rep. 1035. Interest of wife: See Anderson v. Harper, 30 Wash. 378, 70 Pac. Rep. 965. * Parke & L. Co. v. Inter Nos O. & D. Co., 147 Cal. 490, 495, 82 Pac. Rep. 51 (owners of well). Idalio. Lien limited to the interest of the employer in the prop- erty: See Idaho G. M. Co. v. Winchell, 6 Idaho 729, 59 Pac. Rep. 533, 96 Am. St. Rep. 290. 417 ESTATES AND INTERESTS SUBJECT. § 462 directly or through his agent, actual or ostensible.'^ Such interest may be the fee-simple title, and the fee may be subject to certain estates or interests, such as leases and the like, and the estates or interests last mentioned may, under certain circumstances, be likewise subject to the lien. These matters will be treated in detail in the following sections. § 462. Same. Fee or legal title subject to lien. The fee or legal title, by virtue of the provision of the statute already discussed, and heretofore quoted in full,'' under the Ij'tah. Unless the person causing the improvement to be made had some interest in the land, no lien attaches to the improvement; for the latter is to be taken as appurtenant merely: Eccles L. Co. v. Martin (Utah), 87 Pac. Rep. 713, 715, 716 (under Rev. Stats. 1898, "tit! xxxix, eh. i). See Sahford v. Kunkel (Utah), 85 Pac. Rep. 1012,' and Morrison v. Clark, 20 Utah 432, 59 Pac. Rep. 235, 77 Am. St. Rep. 924. \Vu.sbington. Baker v. Sinclaire, 22 Wash. 462, 61 Pac. Rep. 170 (under Ballinger's Ann. Codes and Stats., § 5901). The clause in 2 Ballinger's Ann. Codes and Stats., § 5901, referring to the person owning less than the fee, relates to the person who caused the work to be done or materials to be furnished: Northwest B. Co. v. Tacoma S. Co., 36 Wash. 333, 78 Pac. Rep. 996. = See "Agency," §§572 et seq., post. See also "Estoppel," §§469 et seq., post. The amendment of 1903 to Kerr's Cye. Code Civ. Proc, i 1183, provides that every person having charge of a mining claim, "either as lessee or under a working bond or contract thereon, witli the privilege of purchase, or otherwise, shall be held to be the agent of the owner for the purposes of this chapter." " § 460, ante. Hinckley v. Field's B. & C. Co., 91 Cal. 136, 139, 27 Pac. Rep. 594. See W^orden v. Hammond, 37 Cal. 61, 65 (1862). See §§ 469 et seq., post. Compare: Hines v. Miller, 122 Cal. 517, 55 Pac. Rep. 401. Arixona. See Bremen v. Foreman, 1 Ariz. 413, 25 Pac. Rep. 539; Eaman v. Bashford, 37 Pac. Rep. 24, following Moore v. Jackson 49 Cal. 109. Colorado. Interest of co-tenant contracting only: Mellor v. Valen- tine, 3 Colo. 260. Contracting with others than owner does not affect the lien: Id. Contract must be with owner or agent: Rico R. & M. Co. v. Mus- grave, 14 Colo. 79, 23 Pac. Rep. 458 (co-tenants). Interest of grantee, deed in escrow: Chicago L. Co. v. Dillon, 13 Colo. App. 196, 56 Pac. Rep. 989. Montana. See Missoula M. Co. v. O'Donnell, 24 Mont. 65, 60 Pac Rep. 594, 991. AVashington. So where the lessee makes repairs by authority of the lessor (that is, as the latter's agent): Sheehan v. Winehill, 18 Wash. 447, 51 Pac. Rep. 1065. So where the contract between the lessor and lessee, while in effect a lease, is a building contract, the cost to be paid by the owner by way of rents remitted: Kremer v W^alton, 16 Wash. 139, 47 Pac. Rep. 238; s. c. 11 Wash. 120, 39 Pac. Rep. 374. Mech. Liens — 27 § 463 mechanics' liens. 418 general rule announced in the last preceding section, may be bound and charged with the lien. In a mining claim, if the person claiming to act as agent is not employed as such by the owner, who has no knowledge of the work being done upon it, and he exercised ordinary care in the premises, no lien can be imposed upon the premises/ § 463. Same. Vendee being in possession. When a person is in possession of laud under a contract with the owner, the terms of which are sufficient at the general law to constitute such person the agent, actual or ostensible, of the owner, for the purpose of making the improvement, the latter must be deemed to have caused the improvement to be made, and resort need not be had to the failure of the owner to post notice of non-responsibility, hereafter to be discussed, in order to affect such owner's interest with liability for liens in the making of the improvement. Upon this principle, liens have been allowed against the interest of the owner, where a vendee was in possession, and made improvements, under a contract of sale providing for such improvements, expressly or impliedly, under circumstances giving rise to the relation of agency between the vendee and vendor for the purpose of making the improvement.* • Donohoe v. Trinity Consol. G. & S. M. Co., 113 Cal. 119. 123, 45 Pac. Rep. 259 (the employer apparently having- no interest in the property). The discussion involved only questions of agency, and notice of non- responsibility was not referred to. See amendment of 1903 to § 11S3. Kerr's Cyc. Code Civ. Proc. (Stats. 1903, p. 84), purporting to make lessee or vendee agent of owner. See § 473, post. Colorado. See Tritch v. Norton, 10 Colo. 337, 15 Pac. Rep. 680 (1881). Oregon. A stranger or intermeddler could not thus encumber the property of another: Cross v. Tscharnig, 27 Oreg. 47, 39 Pac. Rep. 540. * In Moore V. Jackson, 49 Cal. 109, 111, a vendee in possession made repairs by permission of the owner, and it was held that claimants had a lien, even if the vendee did not carry out the contract of pur- chase. The ground was that the vendee was the "agent" of the owner, within the meaning of the first section of the act of 1868, con- taining provisions similar to those of § 1183, Kerr's Cyc. Coda Civ. Proc., and not upon the g;round of estoppel or knowledge of the owner, as provided in the fourth section of the act, similar to § 1192, Kerr's Cyc. Code Civ. Proc. See §§ 469 et seq., post, where the relation considered is not contractual, but by way of estoppel. In Guy V. Carriere,- 5 Cal. 511, 513 (1850), tiie vendee was in pos- session under an oral agreement of sale, and it was said that the owner of the " land could create a lien upon the property," and that the vendee had no rights to be affected. 419 ESTATES AND INTERESTS SUBJECT. § 464 § 464. Same. Lessee being in possession. Under tiie prin- ciple tliat the interest of tlie person causing tlie work to be done or materials to be furnished, in the land, is bound by the lien, whether the contract therefor was made by such person or through his actual or ostensible agent, as discussed in the last preceding sections, where a lease of mining claims provides that the owner should be paid a certain portion of the net profits of the proceeds from working the mine, and that the lessees should prosecute the work of mining, before section eleven hundred and eighty-three ^ was amended in 1903, said section made the lessees the owner's agents, and those performing labor in the development of the property, or to facilitate the extraction of ore, discovered or undis- covered, or in the. extraction of the ore, had a lien for such labor upon the interests of the lessees and the owner.^° See " Notice of Non-responsibility," § 473, post. Arizona. Where a vendee was in possession under an option to purchase, wliich provided that tlie vendee sliould work a mine at his own expense, the bullion to be placed to the credit of the owner as collateral security for the purchase price, and upon the default of certain payments the purchaser was to vacate the property, the vendee's laborers have no lien upon the interest of the owner, under Rev. Stats., §§2276, 2278, 2280; but only on that of the vendee, there being no agency for the owner: Hadley Co. v. Cummings, 7 Ariz. 258, 64 Pac. Rep. 443. On lease of mine. Likewise with reference to a lease of a mine, the Interest of the lessee is alone liable: Griffin v. Hurley, 7 Ariz. 399, 65 Pac. Rep. 147. See •' Agency," §§ 572 et seq., post. Colorado. Where the vendee, under the terms of the contract, is not only authorized but required to operate, develop, and improve a mine, lien claimants have a lien upon the interest of both the vendor and vendee: Hendrie & B. Mfg. Co. v. Holy Cross G. M. & M. Co., 17 Colo. App. 341, 68 Pac. Rep. 785; Shapleigh v. Hull, 21 Colo. 419, 41 Pac. Rep. 1108; Colorado I. W. v. Taylor, 12 Colo. App. 451. 55 Pac. Rep. 942. Contract to perform labor upon a mine, upon the completion of Which the laborer is to have an interest in the property, does not constitute him the owner or agent of the owner, within the mean- ing of 3 Mills's Ann. Stats., 1st ed., § 2867, giving a lien against the interest of the owner: Maher v. Shull, 11 Colo. App. 322, 327, 52 Pac. Rep. 1115. See Griffin v. Seymour, 15 Colo. App. 487, 63 Pac. Rep. 487, 809 (vendor). But this doctrine will not be used to disturb vested rights and valid encumbrances: Sprague I. Co. v. Mouat L. & I. Co., 14 Colo. App. 107, 60 Pac. Rep. 179, 184. " Kerr's Cjc. Code Civ. Proc., § 1183. '" Higgins V. Carlotta G. M. Co.,' 148 Cal. 700, 702, 84 Pac. Rep. 758, 113 Am. St. Rep. 344. Arizona. The erection of a bar and otlier saloon fixtures in a leased building, at the instance of the leaseholder, does not give a § 465 mechanics' liens. 420 § 465. Same. Title being held in trust. Where claimants are ignorant of the existence of a contract with an executor, unauthorized by order of court, and the title to a mine stood in his individual name upon the records of the county as a resulting trust for an estate which he was administering in another county, laborers are not chargeable with notice of the probate proceedings as fixing the legal status of the mine, but are protected in their liens for work done in actual ignorance of the rights of the estate, as encum- brancers for value without notice of the trust, within the meaning of the statutory provision.^^ lien against the interest of the owner: Gates v. Fredericks, 5 Ariz. 343, 52 Pac. Rep. 1118 (under Rev. Stats., § 2258). Colorado. Where the lease provides only for a certain improve- ment on a mine, such as the erection of a mill, whicli, upon the expiration of the lease, is to become the property of the lessor, the claimant must show that he has furnished material for or performed labor upon the particular improvement set forth in the lease: Antlers Park R. M. Co. v. Cunningham, 29 Colo. 284, 68 Pac. Rep. 226. Under a lease in ^vhlcli the lessor has no interest, the interest of the lessor is not subject to the lien, even where he was employed as a book-keeper for the lessee, and acted as the agent of the lessee in and about the propertj', and did not notify the claimants as to his true relation to the property: Davidson v. Jennings, 27 Colo. 187, 60 Pac. Rep. 354, 83 Am. St. Rep. 49, 48 L. R. A. 340 (the question of estoppel was eliminated by failure to plead). Amendment of 1S05. E^ffcct of. The fact that the mechanic's-lien law provides that the owner of the fee shall be liable unless he leases the mine in small blocks of ground to one or more sets of lessees does not enlarge or extend the provision, making it applicable to owners not thus leasing their lands: Wilkins v. Abell, 26 Colo. 462, 5-& Pac. Rep. 612 (under Sess. Laws 1895, § 8, p. 200). Nevada. Rosina v. Trowbridge, 20 Nev. 105, 121, 17 Pac. Rep. 751. See Dickson v. Corbett, 11 Nev. 277 (lessor). Oregon. The interest of the owner is not subject to a mechanic's lien for labor performed for a lessee under a lease recorded before the work was begun: Lewis v. Beeraan, 46 Oreg. 311, 80 Pac. Rep. 417 (under Bellinger and Cotton's Ann. Codes and Stats., § 5668). See Stinson v. Hardy, 27 Oreg. 584, 41 Pac. Rep. 116. Lien of contractor against the interest of an estate lessor; work ordered by lessee and assigns of lessee: See Hobkirk v. Porthind B. Club, 44 Oreg. 605, 77 Pac. Rep. 776. AVashington. But otherwise if the lessee causes the improvement to be made, and is not the agent of the owner: Stetson-Post M. Co. V. Brown, 21 Wash. 619, 627, 59 Pac. Rep. 507, 75 Am. St. Rep. 862. See "Agency," §§572 et seq., post. " Kerr's Cyc. Civ. Code, § 856. See Chappius v. Blankman, 128 Cal. 362, 365, 60 Pac. Rep. 925. As to autliority of persons in trust relation or representative capa- city to confer right to mechanic's lien, gee note 61 Am. Dec. 691. Oregon. Legal estate in the trustees of a church bound by their contract, notwithstanding the deed to the trustees provided that the 421 ESTATES AND INTERESTS SUBJECT. §§ 466, -167 § 466. Same. Interest of vendee in possession bound. Under the general rule laid down in the preceding sections, the equitable interest of the employer in possession under a contract of sale is subject to the lien to secure the indebt- edness incurred by himself for materials furnished or labor performed in the construction or other work provided for in the statute with reference to the objects therein enumer- ated.^- § 467. Same. Interest of lessee bound. Under the gen- eral rule stated in a preceding section/^ the interest of a lessee of property may be bound by a lien for materials proceeds, if the land be sold, should be disposed of according- to the discipline of the church: Harrisburg L. Co. v. Washburn, 29 Oreg. 150, 44 Pac. Rep. 390; Title G. & T. Co. v. Wrenn, 35 Oreg. 62, 56 Pac. Rep. 271, 76 Am. St. Rep. 454 (through agent). Wyoining. As against any other person, however, without notice Of the trust, or the equitable interest of the cestui que trust, who purchases the same from the trustee, or obtains a lien thereon by mortgage or by operation of law, such as a mechanic's lien, dealing with the trustee in good faith, for a valuable consideration, who is to all intents and purposes the full owner, such third person takes it discharged of the trust. In this case a decedent died after erecting buildings on land of another, and his administratrix purchased the land and took a deed thereof in her own name, using the estate's funds for that purpose, and rebuilt the building after its destruc- tion by fire, using the insurance-money belonging to the estate; the interest of the heir was held bound to the person who, without notice of the rights of the estate, supplied labor and materials for the building, and filed a mechanic's lien therefor: Seibel v. Bath, 5 Wyo. 409, 40 Pac. Rep. 756. " Crowell V. Gilmore, 13 Cal. 54, 56; Hinckley v. Field's B. & C. Co., 91 Cal. 136. 139, 27 Pac. Rep. 594. See authorities in preceding note. Colorado. See Shapleigh v. Hull, 21 Colo. 419, 41 Pac. Rep. 1108 (lien extends to both interests of vendor and vendee, where latter contracts upon express authority or requirement of vendor) ; Colorado I. W. V. Taylor, 12 Colo. App. 451, 55 Pac. Rep. 942; Chicago L. Co. v. Dillon, 13 Colo. App. 196, 56 Pac. Rep. 989. See also Antlers Park R. M. Co. V. Cunningham, 29 Colo. 284, 68 Pac. Rep. 226. Idaho. See Steel v. Argentine M. Co., 4 Idaho 505, 42 Pac. Rep. 585, 95 Am. St. Rep. 144. Utah. Carey-Lombard L. Co. v. Partridge, 10 Utah 322, 37 Pac. Rep. 572 (1890). AVash inert on. Uiff v. Forssell, 7 Wash. 225, 34 Pac. Rep. 928; Mentzer V. Peters, 6 Wash. 540, 541, 33 Pac. Rep. 1078. See St. Paul & T. L. Co. V. Bolton, 5 Wash. 763, 32 Pac. Rep. 787 (obligee under bond to convey). Where the rights of the vendee are forfeited and lost, there is nothing upon which the lien of the claimant can attach: Mentzer v. Peters, supra. See also Baker v. Sinclaire, 22 Wash. 462, 61 Pac. Rep. 170 (under Ballinger's Ann. Codes and Stats., § 5901). " § 461, ante. § 467 mechanics' liexs. 422 furnished for or labor performed upon a structure which the lessee caused to be erected.^* Thus laborers on a mine " West Coast L. Co. v. Newkirk, 80 Cal. 275, 278, 22 Pac. Rep. 231; Lothian v. Wood, 55 Cal. 159. 164; Johnson v. Dewey, 36 Cal. 623, 624 (1862). See Barber v. Reynolds, 33 Cal. 497, 503; W^est Coast L. Co. v. Apfield, 86 Cal. 335, 340, 24 Pac. Rep. 993; Crowell v. Gilmore, 13 Cal. 54, 56; Harlan v. Stufflebeem, 87 Cal. 508, 510, 25 Pac. Rep. 680; Central L. & M. Co. V. Center, 107 Cal. 193, 194, 197, 40 Pac. Rep. 334; Jones v. Shuey (Cal., April 3, 1895), 40 Pac. Rep. 17. See " Fixtures," §§ 189 et seq., ante, and §§ 469 et seq., post. Arizona. Claimants furnishing materials or doing labor for a lessee have a lien upon the interest or estate of the lessee, but not against the estate of the lessor, unless it be shown that the lessee was acting, so far as the claimant is concerned, as the agent, either in fact or in law, of the lessor; mere knowledge on the part of the lessor that the lessee is working the property, or even permission or an agreement on the part of the lessor that the lessee may work the mine, will not alone constitute the lessee such agent of the lessor: Bogan V. Roy (Ariz.), 86 Pac. Rep. 13, 15; Gates v. Fredericks, 5 Ariz. 343. 52 Pac. Rep. 1118; Hadley Co. v. Cummings, 7 Ariz, 258, 64 Pac. Rep. 443. Colorado. Cary H. Co. v. McCarty, 10 Colo. App. 200, 210, 50 Pac. Rep. 744. See same case for license coupled with an interest. Where contract in made by and for benefit of lessee of a mine, and not under a contract made with the owner of the property, or one acting by his autliority as agent or contractor, claimants have no lien against the interest of the owner: W'ilkins v. Abell, 26 Colo. 462, 58 Pac. Rep. 612 (under § 8, as amended by Sess. Laws 1895, p. 202); W'illiams v. Eldora-Enterprise M. Co. (Colo.), 83 Pac. Rep. 780; Morrell H. Co. v. Princess G. M. Co., 16 Colo. App. 54, 63 Pac. Rep. 807 (under 3 Mills's Ann. Stats., 1st ed., §2873); Schwelzer v. Mans- field. 14 Colo. App. 236, 59 Pac. Rep. 843. Mining lease -with option to purchase, nudum pactum, converted into an enforceable contract of sale on payment of part of purchase price: See Williams v. Eldora-Enterprise G. M. Co. (Colo.), 83 Pac. Rep. 780. A contract made by or for the benefit of the lessee of the mine M'ith claimant not the basis of a lien, under Sess. Laws 1895, p. 202 (3 Mills's Ann. Stats., 1st ed., § 2873): Morrell H. Co. v. Princess G. M. Co., 16 Colo. App. 54, 63 Pac. Rep. 807. Under a lease for ordinary- development-^-ork, by the terms of which the vendor was to receive a stipulated rental in the nature of a royalty, with an option of purchase, there being no requirement that the purchaser should make any improvements or do any work on the mine, no lien can be enforced against the interest of the owner for work or materials performed or furnished for the vendee: Williams v. Eldora-Enterprise G. M. Co. (Colo.), 83 Pac. Rep. 780; Maher v. Shull, 11 Colo. App. 322, 52 Pac. Rep. 1115; Schweizer v. Mansfield, 14 Colo. App. 236, 59 Pac. Rep. 843; Little Valeria M. & M. Co. v. Ingersoll, 14 Colo. App. 240, 59 Pac. Rep. 970; Antlers Park R. M. Co. V. Cunningham, 29 Colo. 284, 68 Pac. Rep. 226. Montana. Missoula M. Co. v. O'Donnell, 24 Mont. 65, 60 Pac. Rep. 594, 991; Stenberg v. Liennemann. 20 Mont. 457. 52 Pac. Rep. 84, 63 Am. St. Rep. 636; Montana L. & Mfg. Co. v. Obelisk M. & C. Co., 15 Mont. 20, 37 Pac. Rep. 897; Pelton v. Minah Consol. M. Co., 11 Mont. 281, 28 Pac. Rep. 310; Block v. Murray, 12 Mont. 545. 31 Pac. Rep. 550. Compare: Beck v. O'Connor, 21 Mont. 109, 53 Pac. Rep. 94. 423 ESTATES AND INTERESTS SUBJECT. § 467 have a lien upon the interest of the lessee, with whom they have contracted.'' Under the act of 1862, which did not provide for any notice by the owner upon receiving knowledge of the construction of a building upon his land (such as is contained in section eleven hundred and ninety-two^®), it was held that where the building was erected by a lessee, although with the knowledge of the lessor, the interest of the lessee alone was liable, since he " caused " the building to be erected, by entering into a contract with the claimant/' But where Kew Mexico. Post V. Miles, 7 N. M. 317, 329, 34 Pac. Rep. 586. Orej^on. Mathiesen v. Arata, 32 Oreg. 342, 344, 50 Pac. Rep. 1015, 67 Am. St. Rep. 535; Allen v. Rowe, 19 Oreg. 188, 23 Pac. Rep. 901 (under mining- act. Laws 1891, p. 76); Stlnson v. Hardy, 27 Oreg. 584, 41 Pac. Rep. 116 (citing Montana cases, supra). Utah. Morrow v. Merritt, 16 Utah 412, 52 Pac. Rep. 667; Ellis v. Brisacher, 8 Utah 108, 29 Pac. Rep. 879. Washington. Bell v. Groves, 20 W'ash. 602, 56 Pac. Rep. 401; Kre- mer v. Walton, 16 Wash. 139, 47 Pac. Rep. 238, s. c. 11 Wash. 120, 39 Pac. Rep. 374; Masow v. Fife, 10 Wash. 528, 39 Pac. Rep. 140; Har- rington V. Miller, 4 Wash. 808, 31 Pac. Rep. 325; Stetson-Post M. Co. V. Brown, 21 Wash. 619, 627, 59 Pac. Rep. 507, 75 Am. St. Rep. 862; Owen V. Casey (Wash., March 13, 1908), 94 Pac. Rep. 473. 1^ Berentz v. Belmont O. M. Co., 148 Cal. 577, 580, 84 Pac. Rep. 4 7, 113 Am. St. Rep. 308, reversing upon this point (Cal. App.) 84 Pac. Rep. 47. " Kerr's Cyc, Code Civ. Proc., § 1192. " Johnson v. Dewey, 36 Cal. 623, 624. The same expression, "caused ^aid building ... to be constructed," is to be found in § 1185, Iverr's Cyc. Code Civ. Proc, which is similar to § 4 of the act of 1862: W^orden V. Hammond, 37 Cal. 61, 65 (1862), in which it was likewise held that the interest of the vendor under a contract of sale was not subject to a lien. See Santa Cruz R. P. Co. v. Lyons, 117 Cal. 212, 213, 48 Pac. Rep. 1097, 59 Am. St. Rep. 174, and discussion under head of "Consti- tutional Aspects," §§ 28 et seq., ante; Eaton v. Rocca, 75 Cal. 93. 16 Pac. Rep. 529; Guy v. Carriere, 5 Cal. 511, 513 (1850); Avery v. Clark, 87 Cal. 619, 628, 29 Pac. Rep. 919, 22 Am. St. Rep. 272; §§459 et seq., ante, and notes. But see Soule v. Dawes, 14 Cal. 247, 250; and Moore v. Jackson, 49 Cal. 109, 111. Arizona. Same principle: Gates v. Fredericks, 5 Ariz. 343, 52 Pac. Rep. 1118. Colorado. See Evans v. Young, 10 Colo. 316, 15 Pac. Rep. 424, 3 Am. St. Rep. 583; United M. Co. v. Hatclier, 79 Fed. Rep. 517, 25 C. C. A. 46. 49 U. S. App. 139, reversing Hatcher v. United States L. Co., 75 Fed. Rep. 368 (Cir. Ct.). Montana. See Stenberg v. Liennemann, 20 Mont. 457, 52 Pac. Rep. 84, 63 Am. St. Rep. 636; Montana L. & Mfg. Co. v. Obelisk M. & C. Co., 15 Mont. 20, 23, 37 Pac. Rep. 897; Pelton v. Minah Consol. M. Co., 11 Mont. 281, 28 Pac. Rep. 310; Block v. Murray, 12 Mont. 545, 31 Pac. Rep. 550. Utah. So where the lease provided for the erection of improve- ments by tenant: Morrow v. Merritt, 16 Utah 412, 52 Pac. Rep. 667, citing Johnson v. Dewey, 36 Cal. 623. § -167 mechanics' liens. 424 the lessor's interest is not otherwise affected, it seems that the lien, generally attaches, subject to the conditions of the lease. ^^ Wasbington. See Bell v. Groves, 20 Wash. 602, 56 Pac. Rep. 401, where it was held that the improvements erected by a lessee of a vendee, who had forfeited his right under an unrecorded contract, which provided that in case of forfeiture the improvements should remain, are subject to the lien of the lessee's material-man who has no notice of such contract, and who believes the building is owned by the lessee, the vendor having- knowledge of the construction, and not giving notice of his rights, and not declaring a forfeiture after the materials had been furnished. But where a bond for a deed has been recorded, and there is no estoppel, the rule is otherwise: Bell v. Groves, supra; St. Paul L. & T. Co. v. Bolton, 5 Wash. 763, 32 Pac. Rep. 787. And so the interest of the owner is not liable, even though he stated, after nearly all the materials had been furnished, that he would see that the person fraudulently representing himself to be the lessee should pay the claimant, there being no promise on his part to pay, nor any consideration for such promise, if it was made, and the claimant was not induced to furnish such materials by such statement; and while, possibly, if there had been a purchase of such leasehold interest by the owner, such interest would merge in the fee-simple title charged with the lien growing out of the furnished materials, yet where all the rights under the lease had been for- feited, and the owners took possession of the property, and at the same time purchased of such lessee the improvements which had been placed thereon, there would be no such merger in the fee as would permit the operation of any such rule: Masow v. Fife, 10 Wash. 528, 39 Pac. Rep. 140. See note 12, this chapter, supra. " Gaskill V. Trainer, 3 Gal. 335, 340 (1850). There must be a formal demand made on the day when the rent becomes due, to create a for- feiture; and a waiver of this demand will not be implied; and the surrender of the leasehold interest, although it otherwise operates as a merger in the fee, yet it cannot be suffered to defeat the rights of a third party, which intervened before the merger took place: Id. In this case, however, the statute did not provide for giving notice to the owner, and the question of estoppel did not arise. See §§ 469 et seq., post; "Priorities," §§ 486 et seq., post; "Fixtures," §§ 185 et seq., ante. Colorado. Where the lessee erected a building, and a lien was filed against the leasehold interest, and the lessee sold his interest to the lessor: held, that no equitable consideration exists to hold that an absolute merger did not take place, and that the entire estate was subject to the lien: Evans v. Young, 10 Colo. 316, 15 Pac. Rep. 424, 3 Am. St. Rep. 583. As to forfeiture of lease, see Id. 325. As to the tes^t, see Gary H. Co. v. McCarty, 10 Colo. App. 200, 50 Pac. Rep. 744. 3Iontana. Where the improvement can be removed, it does not seem to be affected by forfeiture of lease: Montana L. & Mfg. Co. v. Obelisk M. & C. Co., 15 Mont. 20, 24, 37 Pac. Rep. 897; Missoula M. Co. v. O'Donnell, 24 Mont. 65^ 60 Pac. Rep. 594, 991. INothiiiju; callable of removal from premises. But where nothing is constructed upon the leased premises capable of being removed therefrom, the rule is otherwise: Montana L. & Mfg. Co. v. Obelisk M. 425 ESTATES AND INTERESTS SUBJECT. § 468 Secret agreements in lease. The character of an improve- ment controls when the rights of a lien claimant are in- volved, and where an improvement is made in such manner as to affix it to the realty, and a laborer has no information that it will be regarded otherwise than as suggested hy the manner of construction, he may well assume that he is mak- ing an improvement upon real property, and that a right of lien may attach, which will not be defeated by any secret agreement between the owner and a lessee, that the improvement may thereafter be demolished by the lessee at the expiration of the lease, or at any other time.^** § 468. Same. ' Homestead bound.-'^ The statute provides : " The homestead is subject to execution or forced sale in satisfaction of judgments obtained: ... on debts secured by mechanics, contractors, subcontractors, artisans, archi- tects, builders, laborers of every class, material-men's or ven- dors' liens upon the premises." -^ As the law at present & C. Co., 15 Mont. 20, 24, 37 Pac. Rep. 897; Pelton v. Minah Consol. M. Co., 11 Mont. 281, 28 Pac. Rep. 310; Block v. Murray, 12 Mont. 545, 31 Pac. Rep. 550. Utah. Same doctrine as Gaskill v. Trainer, 3 Cal. 335, which Is cited; Ellis v. Breisacher, S Utah 108, 29 Pac. Rep. 879. Washingtoii. Bell v. Groves, 20 Wash. 602, 56 Pac. Rep. 401; Stet- son & Post M. Co. V. Pacific A. Co., 37 Wash. 335, 79 Pac. Rep. 935; Northwest B. Co. v. Tacoma S. Co., 36 Wash. 333, 78 Pac. Rep. 996 (the lease being a matter of record). As to merger disoussed above, see Masow v. Fife, 10 Wash. 528, 39 Pac. Rep. 140. See §§ 469 et seq., post, and notes. '^ Stevenson v. Woodward, 3 Cal. App. 754, 86 Pac. Rep. 990. ^ Mechanics' liens on lioniestead property: See note 9 L. R. A. 805' and see Kerr's Stats, and Anidts. 100(5-07, note p. 480; Kerr's Cyc. Code Civ. Proc, § 1185, note. As to lioniesteads, see note 61 Am. Dec. 688-699. -^ Kerr's Cyc. Civ. Code, §1241, as amended in 1887 (Stats, and Amdts. 1887, p. 81). Before tliis amendment, which included material-men, it was held that material-men could not obtain a lien upon the property after it had been impressed with a homestead: Richards v. Shear, 70 Cal. 187 189, 11 Pac. Rep. 607. And likewise before the amendment, when the declaration of homestead was filed after the materials had been fur- nished, but before the filing- of the claim of lien: Walsh v. McMenomy, 74 Cal. 356, 360, 16 Pac. Rep. 17. See Bonner v. Minnier, 13 Mont. 269i 34 Pac. Rep. 30, 40 Am. St. Rep. 441 (where, under similar circum- stances, the opposite rule was established, and these cases were declared distinguishable, De Witt, J., dissenting). See also Merrigan V. English, 9 Mont. 113, 22 Pac. Rep. 454, 5 L. R. A. 837. §468 mechanics' liens. 426 exists, a mechanic's lien may be created upon the home- stead property without the joint action of the husband and Rule is otherwise since the amendment of 1887, as shown: Davies- Henderson L. Co. v. Gottschalk, 81 Cal. 641, 649, 22 Pac. Rep. S60. And the homestead was subjected to such sale for materials fur- nished before the passage of the act when the claim was filed after its passage: Id. See also §§ 35, 38, ante. It seems that under the first subdivision of Kerr's Cyo. Civ. Code, § 1241, if tlie judgment foreclosing such lien has been obtained before the declaration of homestead was filed for record, the homestead will be subject to such sale. Hawaii. Homestead exemption does not apply to liens of me- chanics and material-men for labor performed or materials furnished in the erection of the building: Rev. Laws Hawaii 1905, § 1830. See Id., § 296. Olclahoma. There must be a contract in writing with both hus- band and wife, if they are both living, not divorced, in order to secure a mechanic's lien on the homestead by reason of having furnished materials for improvements thereon: Rowley v. Varnum, 15 Okl. 612, 84 Pac. Rep. 487 (under Wilson's Rev. and Ann. Stats. 1903, § 2988). Honesty and fair deaiing dictates that, as between the owner of a building and the person furnishing materials therefor, such materials should be paid for before the building constructed of that material shall be held exempt from such debts, and the mere Intention of the owner to make the property a homestead should not be used to the prejudice of a party who relied upon the fact that he was the owner, and gave him credit for such material upon the theory that there was no homestead: Ball v. Houston, 11 Okl. 233, 66 Pac. Rep. 358, 360. Utali. The legislature may provide remedies for the protection of the liomestead rights created and secured by the constitution, and inay regulate the claim of the right, so that its exact limits may be known, and may complete the same by supplemental legislation; but it cannot attempt to narrow, defeat, or limit the homestead right thus defined by the constitution by subjecting the homesead to any kind of sale on execution, among other things. But if the homestead claim- ant voluntarily encumbers it as provided by the statute (Rev. Stats. 1898, § 1155), a material-man furnishing materials for an improve- ment of the homestead acquires a lien under tlie statute, which does not arise out of or under any contract, made by the owner, which can be. construed into a contract for a lien; and a sale thereof tinder foreclosure of the lien under Rev. Stats. 1889, § 1156, is in violation of art. xxii, § 1, of the constitution: Volker-Scowcroft L. Co. v. Vance (Utah), 88 Pac. Rep. 896. Wasliin^on. Under Gen. Stats., § 1404, and Code Civ. Proc, §§ 481-483, a lien could be claimed for the erection of a dwelling- liouse, although the premises are at the tiine intended to be used as a homestead, it being the separate property of the husband: Parsons V. Pearson, 9 Wash. 48, 36 Pac. Rep. 974. As to separate property of the wife, or community property, see same case. Under Code of 1881, § 2410, giving the husband manage- ment of cominunity property, he was empowered to contract for the erection of buildings on the community property and subject it to mechanics' liens; but -there could be no sale of the husband's or wife's Interest in the community property separately during the existence of the community, and Code of 1881, § 1959, authorizing the 427 ESTATES AND INTERESTS SUBJECT, § 468 wife.-^ And where a right to a mechanic's lien exists upon the property, the filing of a declaration of homestead thereon subsequently will not defeat it.^^ interest of a party owning less than a fee-simple to be sold, did not apply to such a case: Littell & S. Mfg. Co. v. Miller, 3 Wash. 480, 28 Pac. Rep. 1035. Homestead: See Powell v. Nolan, 27 Wash. 318, 67 Pac. Rep. 712, 716, 68 Id. 389; Peterson v. Dillon, 27 Wash. 78, 67 Pac. Rep. 397. ^ Palmer v. Lavig-ne, 104 Cal. 30, 34, 37 Pac. Rep. 775, distlnsiiishing Walsh V. McMenomy, 74 Cal. 356, 16 Pac. Rep. 17. " Davies-Henderson L. Co. v. Gottschalk, 81 Cal. 641, 649, 22 Pac. Rep. 860. See "Retroactive Laws," §36, ante, and "Priorities," §§486 et seq., post. § 469 mechanics' liens. 428 CHAPTER XXIV. LIMITATIONS ON LIENS (CONTINUED). ESTATES AND INTERESTS SUBJECT TO LIENS. IL By Estoppel. Notice of Non-responsibility. § 469. Estates or interests bound by estoppel. Scope of discussion. § 470. Same. The general principles of estoppel in pais. § 471. Same. Independently of statute. § 472. Same. General rule as to when notice of non-responsibility must be given. § 473. Same. Notice of non-responsibility. Statutory provision. § 474. Same. Purpose of provision as to notice of non-responsi- bility. § 475. Same. Notice or knowledge of improvement. § 476. Same. Notice to corporation as owner. § 477. Same. Lessee in possession and making improvements. § 478. Same. Vendee being in possession. § 479. Same. When notice not required. § 480. Same. When notice not required in case of mines and min- ing claims. § 481. Same. Notice not required in case of grading and other work in incorporated cities. § 482. Same. Notice not required in case of prior liens. § 483. Same. Effect of knowledge of claimant of lack of authority of person making improvement. § 484. Same. Notice, when to be posted. § 485. Same. Notice, how posted. Conspicuous place. II. BY ESTOPPEL. NOTICE OF NON-RESPONSIBILITY. § 469. Estates or interests bound by estoppel. Scope of discussion. In the preceding chapter, the general scope of the inquiry here was pointed out.^ It is now necessary to inquire under what circumstances an estate or interest in property sought to be charged with a lien is subject to the same, when no contractual relation exists between the owner of such estate or interest and the claimant, either by contract with such owner directly, or through his agent," actual or 1 See § 459, ante. ' The subject o£ agency wiU be considered in anotlier place, although that of ostensible agency bears closely upon the questions here considered. See chapter on "Agency," §§572 et seq., post; and " Constitutional Aspects," §§ 28 et seq., ante. 429 ESTATES AND INTERESTS SUBJECT. §§ 470, 471 ostensible. In the sections immediately preceding, the gen- eral nature of the interests and estates subject to the lien by contract, without the intervention of any other than an agent, actual or ostensible, is considered. The following sections have reference more particularly to questions of estoppel.^ The general purpose of the mechanic's-lien law is to give to contractors, laborers, and material-men a lien on the land improved, as security for their labor and material. But the law also gives to the owner certain rights and privileges, by which he may protect himself against the operation of such a lien. The law does not, and in fairness should not, make the land subject to the lien in any and every case of a building or other structure erected upon it.'* § 470. Same. The general principles of estoppel in pais will not be dwelt upon. It is familiar doctrine that the owner of land who stands by and sees another sell it, without making known his claim, is forever estopped from setting up his title against an innocent purchaser, who, believing the seller to be the owner, has parted with value; and so one who knowingly and silently permits another to spend money upon land, under the mistaken impression that he has title, will not be permitted to set up his right, at least not so far as to deprive him of the value of such improvements.^ § 471. Same. Independently of statute, the interest of a person not contracting, either directly or through an agent, would not be subject to the liens for labor done or materials furnished, even if such person has knowledge that the same is being performed or furnished." ' See also "Priorities," §§486 et seq., post. * Birch V. Mag-ic T. Co., 139 Cal. 496, 500, 73 Pac. Rep. 238. = Godeffroy v. Caldwell, 2 Cal. 489, 492, 56 Am. Dec. 360. In this case there was an actual promise on the part of the mortgagee that the claimant, whose lien was not allowed, should be protected as against his mortgage for moneys advanced for the improvements. As to fixtures becoming; property of owner of realty, see §§ 185 et seq., ante. AVnNliin^^'ton. Bell V. Groves, 20 Wash. 602, 56 Pac. Rep. 401. " Colorado. Mellor v. Valentine, 3 Colo. 260 (part-owner). See Tritch V. Norton, 10 Colo. 337, 15 Pac. Rep. 680 (1881): Folsom" v. Cragen, 11 Colo. 205, 316, 17 Pac. Rep. 515 (Gen. Stats. 1883, requiring contract ' -> be made with owner). § 472 mechanics' liens. 430 Notwithstanding the fact that the owner's notice of non- responsibility under section eleven hundred and ninety-two is limited to cases arising under section eleven hundred and eight}'- three, and is not applicable to those under section eleven hundred and ninety-one, relating to street-work, still, the fact that, for instance, the true owner, the wife, had notice that certain work under the last-mentioned section was going on under a contract made by her husband, and made no objection to it, would bear upon the question of agency and equitable estoppel/ § 472. Same. General rule as to when notice of non- responsibility must be given. The general rule as to the re- quirement of notice of non-responsibility may be stated to be, that such notice need be given in the manner re- Co-tenant cannot impose lien upon the interest of his co-tenants without their consent: Rico R. & M. Co. v. Musgrave, 14 Colo. 79, 23 Pac. Rep. 458. See Empire L. & C. Co. v. Engley, 18 Colo. 388, 33 Pac. Rep. 153; Johnston v. Bennett, 6 Colo. App. 362, 40 Pac. Rep. 847. Idalio. Steel v. Argentine M. Co., 4 Idaho 505, 42 Pac. Rep. 585, 95 Am. St. Rep. 144 (interest of vendor). Nevada. See Hampton v. Truckee C. Co., 19 Fed. Rep. 1, 4, 9 Sawy. 381. Oklahoma. Darlington-Miller L. Co. v. Lobsitz, 4 Okl. 355, 46 Pac. Rep. 481. Utah. Morrow v. Merritt, 16 Utah 412, 52 Pac. Rep. 667; Ellis v. Brisacher, 8 Utah 108, 29 Pac. Rep. 879. So, lessor of mine: Rev. Stats., § 1382. The doctrine of Carey-Lombard Lumber Co. v. Partridge, 10 Utah 322, 37 Pac. Rep. 572 (1890), probably does not oppose that stated in the text, although the language of the decision upon this point is not very clear. Washington. Miles Co. v. Gordon, 8 Wash. 442, 36 Pac. Rep. 265; Nelson v. Clerf, 4 Wash. 405, 30 Pac. Rep. 716. See also St. Paul & T. L. Co. V. Bolton, 5 Wash. 763, 32 Pac. Rep. 787. Rule of the text holds, even where the person fraudulently repre- sents himself as the lessee, the owner not being a party to the mis- representation: Masow V. Fife, 10 Wash. 528, 39 Pac. Rep. 140. Wife's property bound by liusband's act when. Notwithstanding the authority of the husband to contract for the erection of a build- ing upon the separate property of the wife may not be shown, yet she will be estopped to dispute the validity of a mechanic's Hen thereon, when it appears that she had full knowledge of tlie erection of the building, was in and around it during the course of its con- struction, and assisted in the selection of the colors of the paints for it: Spears v. Lawrence, 10 Wash. 368, 38 Pac. Rep. 1049, 45 Am. St. Rep. 789. As to mechanic's lien on T»'ife's real, estate for house erected by husband, see note 61 Am. Dec. 688 et seq. ' Santa Cruz R. P. Co. v. Lyons. 133 Cal. 114, 118, 65 Pac. Rep. 329. 431 ESTATES AND INTERESTS SUBJECT. § 473 quired by the statute only in the ease of the particular char- acter of labor,^ and upon the objects ** enumerated, by the persons designated in the statute. § 473. Same. Notice of non-responsibility. Statutory provision. Partially to remove the limitations in the law ^° pointed out in the preceding sections, the statute ^^ provides: " [A] Every building or other improvement mentioned in section one thousand one hundred and eighty-three of this code, constructed upon any lands with the knowledge [1] of the owner, or [2-] the person having or claiming any interest therein, and [B] the work or labor of every character what- soever done and materials furnished, mentioned in said sec- tion, upon, in or to any mining claim or claims, or real prop- * See §§ 130 et seq., ante. " See §§ 166 et seq., ante. '" Kerr's Cye. Code Civ. Proo., p. 481, § 1192, as amended Stats. 1907, Stats, and Amdts. 1907, p. 577; Kerr's Stats, and Anidts. 1900-07, p. 481. " Notice of non-re.sponsibility: See BueU v. Brown, 131 Cal. 158, 162. 63 Pac. Rep. 167. Colorado. Notice of non-responslbiUty : See GutshaU v. Kornaley (Colo.), 88 Pac. Rep. 158. New Mexico. The owner knowing of repairs, and failing to file notice of non-responsibility under Comp. Laws 1897, § 2226: See Pearce v. Albright, 12 N. M. 202, 76 Pac. Rep. 286. See Post v. Miles, 7 N. M. 317, 333, 34 Pac. Rep. 586 (dissenting opinion). VVasliington. 1 Hill's Code, § 1671 (providing for notice of non- responsibility), was repealed by the act of 1893, ch. xxiv: Stetson- Post M. Co. V. Brown, 21 Wash. 619, 627, 59 Pac. Rep. 507, 75 Am. St. Rep. 862. Construction of statutory provision. " It is contended that the owner designated in such section [1 Hill's Ann. Code, S1671J is the owner of the legal title. Such an implication would doubtless fairly attach if § 1671 were construed only with reference to § 1663. which provides who shall be entitled to a lien; but, construing it with reference to § 1665, ... it becomes apparent that the owners spoken of in § 1671 are the same persons referred to in § 1665. In other words, § 1671 does not give a lien on any interest that was not given by $1665, but simply provides a way by which persons owning interests described in that section can avoid the attachment of the lien where they have not themselves contracted for the construction, alteration, or repair of the works mentioned in § 1693": St. Paul & T. L. Co. v. Bolton, 5 Wash. 763, 765, 32 Pac. Rep. 787. Same. Of California statute. This construction is different from that given to the California provision as it stood before the amend- ment of 1907; but as it does not appear from the decision in the Wasliington case, tliat the owners, who gave a uond to convey the title, had any knowledge of the construction of the building by the obligee of the bond, it is possible that the case is not really contrary to the California rule, notwithstanding the difference in tlie construc- tion of the statute given by the court. § 473 mechanics' liens. 432 erty worked as a mine, with the knowledge [1] of the owner, or [2j the person having or claiming any interest therein, shall be held to have been constructed, performed or fur- nished at the instance of [a] such owner or [b] person hav- ing or claiming any interest therein, [C] and the interest owned or claimed shall be subject to any lien filed in accord- ance with the provisions of this chapter, unless such owner or person having or claiming any interest therein shall, [1] within ten days after he shall obtain knowledge of the con- struction, alteration, repair, or work or labor, [2] give notice that he will not be responsible for the same, by [3] posting a notice in writing to that effect, [4] in some conspicuous place [a] upon the said land or mining claim or claims, or [b] upon the building or other improvements situated thereon, or [5] file and record a copy of such notice in the office of the county recorder of the county wherein such mining claim or real property worked as a mine is situate. [D] And all mining machinery placed upon or in any mining claim or claims, or real property used as a mine, under a lease or other agreement by the terms of which [1] such machinery shall not lose its identity as the personal property of the lessor, and [2] which is used in the operation and working of such mining claim or claims, or real property used as a mine, shall be deemed to be a fixture attached to such mining claim or claims, or real property used as a mine, for the purposes only of the lien hereinbefore mentioned, and shall be subject to such lien, unless such lessor shall [a] within ten days after such machinery shall have been delivered at such mining claim or claims, or real property used as a mine, file and record such lease or other agreement in the office of the county recorder of the county in which such machinery shall be used as aforesaid; or [b] within said ten days shall post a notice in some conspicuous place in some building on said mining claim wherein said machinery is to be used, stating therein [i] that said machinery is the property of said lessor and [ii] has been leased or contracted to be sold to the person operating said mine, and [iii] that said machinery will not be liable for any lien provided for in this chapter. [E] Any person performing labor on such n 433 ESTATES AND INTERESTS SUBJECT. § 474 mining claim or real property worked as a mine [1] may post and keep posted in a conspicuous place thereon a notice containing the substance of either or both of the notices above provided and [2] it shall be a misdemeanor for any person to take down, remove or deface such notice." § 474. Same. Purpose of provision as to notice of non- responsibility. The purpose of the statute, before the amend- ment of 1903,^- was to allow a lien for mining-work done upon a mine, , against the estate or interest therein of the person who was to benefited thereby, whether done directly for him and at his request, or indirectly for his benefit, at the request of some other person operating in pursuance of some express or implied contract with him.^^ The original California provision as to notice of non- responsibility was clumsily worded, and the decisions con- struing the provision as it stood before the amendment of 1907, quoted in a preceding section, did not leave it free from doubts. It provided a mode of binding the owner's interest where the claimant is not in privitj^ with the " owner " or person having an interest, — that is, one having a legal estate less than the fee, or such an equity as might be enforced by securing a transfer of a legal estate. The rights of mortgagees and encumbrancers, with reference to those to Avhom the provisions of the code concede a lien, are fixed by section eleven hundred and eighty-six.^* " stats, and Amdts. 1903, ch. Ixxvi, p. 84. " Hig-gins V. Carlotta G. M. Co., 14S Cal. 700, 702, 84 Pac. Rep. 758, 113 Am. St. Rep. 344. See chapter on " Agency," §§ 572 et seq., post. " Williams v. Santa Clara M. Assoc, 66 Cal. 193, 200, 5 Pac. Rep. 85, 4 West Coast Rep. 616. See " Priorities," §§ 486 et seq., post. Ort'Kon. This section, "assuming that a lien cannot be created without the consent of the owner, express or implied, simply provides a rule of evidence by which such consent could be determined," and such provision is not unconstitutional; but if it were provided by the statute that the fact that a person performing- labor or furnishing material was not enjoined by the owner, or notified in writing not to do so, should be conclusive evidence that such labor was performed or material furnished, with or by his consent, without reference to his knowledge thereof, it would be unconstitutional: Title G. & T. Co. V. Wrenn, 35 Oreg. 62, 56 Pac. Rep. 271, 76 Am. St. Rep. 454. See "Agency." S§ 572 et seq., post. See Allen v. Rowe, 19 Oreg. 188. 23 Pac. Rep. 901; Cross v. Tscharnig, 27 Oreg. 49, 39 Pac. Rep. 540. Mech. Liens — 28 § 475 mechanics' l\ens. 434 § 475. Same. Notice or knowledge of improvement. Un- der the provision requiring the owner to post notice of non- responsibility, the fee or interest of the " owner " is subject to the lien, if the owner, having notice or knowledge of the construction, alteration, or repair, fails to give the required notice that he will not be responsible when the work or material is contracted for by some other person. ^° But the interest of the owner is not subject when he has no such notice or knowledge.'® It is subject, however, if he has " Marchant v. Hayes, 120 Cal. 137, 139, 52 Pac. Rep. 154; Evans v. Judson, 120 Cal. 282, 283, 52 Pac. Rep. 585; Hamilton v. Delhi M. Co., 118 Cal. 148, 152, 50 Pac. Rep. 378; West Coast L. Co. v. Newkirk, 80 Cal. 275, 279, 22 Pac. Rep. 231; West Coast L. Co. v. Apfleld, 86 Cal. 335, 340, 24 Pac. Rep. 993 (lessor); Harlan v. Stufflebeem, 87 Cal. 508, 513, 25 Pac. Rep. 686 (lessor); Avery v. Clark, 87 Cal. 619, 627, 25 Pac. Rep. 272, 22 Am. St. Rep. 919 (vendor's interest). See Santa Monica L. & M. Co. v. Hege, 119 Cal. 376, 379, 51 Pac. Rep. 515; s. c. 48 Pac. Rep. 69 (building erected by lessee by permission of ovv^ner); Jewell v. McKay, 82 Cal. 144, 145, 23 Pac. Rep. 139; Phelps v. Max- well's Creek G. M. Co., 49 Cal. 336, 339 (1868; lessor). Compare: Stowell v. Waddingham, 100 Cal. 7, 34 Pac. Rep. 436. As to actual notice, see Kerr's Cyc. Civ. Code, § 18, and note pars. 1-8. As to constructive notice, see Kerr's Cyc. Civ. Code, § 19, and note pars 1-104. Colorado. See Seely v. Neill (Colo.), 86 Pac. Rep. 334. Nevada. Rosina v. Trowbridge, 20 Nev. 105, 108, 17 Pac. Rep. 751; Gould V. Wise, IS Nev. 253, 258, 3 Pac. Rep. 30. Interest of ee.stui que trust. The interest of a certain cestui que trust is also bound: See Rosina v. Trowbridge, supra. New Mexico. Ford v. Springer L. Assoc, 8 N. M. 37, 58, 41 Pac. Rep. 541; Post v. Miles, 7 N. M. 317, 325, 34 Pac. Rep. 586; Mountain E. Co. V. Miles, 9 N. M. 512, 56 Pac. Rep. 284, 285. Oregon. Hunter v. Cordon, 32 Greg. 443, 52 Pac. Rep. 182. The "owner" referred to in this section is not necessarily "the person who caused the building to be constructed," but may be the owner of the legal title: Title G. & T. Co. v. Wrenn, 35 Greg. 62, 56 Pac. Rep. 271, 76 Am. St. Rep. 454. Wasliington. But, under Gen. Stats., § 1671, it was held that wliere the owner did not have "anything to do with the construction of said building in any way," further than guaranteeing the payment of a certain bill for lumber, which was purchased by his vendee of the land, and used in the construction of the building, although the owner did not post any notice, yet his interest was not bound, on any principle of estoppel: Iliff v. Forssell, 7 Wash. 225, 64 Pac. Rep. 928. Comitare: Spokane Mfg. L. Co. v. McChesney, 1 Wash. 609, 614, 21 Pac. Rep. 198. " Lothian v. Wood, 55 Cal. 159, 163 (lessor). Colorado. See Seely v. Neill (Colo.), 86 Pac. Rep. 334 (under Laws 1899, ch. cxviii, § 5, p. 267). Oregon. Allen v. Rowe, 19 Greg. 188, 23 Pac. Rep. 901. AVashington. See Mentzer v. Peters, 6 Wash. 540, 33 Pac. Rep. 1078; and under a similar provision (Code 1S81. § 1965), it had to appear affirmatively that the owner had such notice: Cutter v. Striegel, 4 Wash. 346, 30 Pac. Rep. 326. II 435 ESTATES AND INTERESTS SUBJECT. §§476, ITT sufficient knowledge to put him upon inquiry. Thus where the owner gave leave to a tenant to construct, but the owner had no actual knowledge of the construction.^^ § 476. Same. Notice to corporation as owner. But if the property was owned by a corporation, and its president per- sonally visited the same while the repairs were going for- ward, and was then informed thereof, it is prima facie suffi- cient to charge the corporation with knowledge of the fact that the work w^as being done.^^ On the other hand, if the work was done solely upon the individual responsibility of one of the directors of a mining corporation, and wholly apart from any official relation of such director to the com- pany, and not for it in any way, the doctrine of constructive or implied notice on the part of the corporation of w^hat was being done cannot obtain, and no lien attaches therefor on such property.^^ § 477. Same. Lessee in possession and making- improve- ments. Where there is a lease for a brief term, under the terms of which the lessee may make and remove improve- ments made by him on the premises, unless the same should be so incorporated with existing structures that removal would leave the latter in worse condition than at the date of the lease, in which case the added improvements are to become the propert}' of the lessor, the latter participates con- tingently in the benefit of such improvements which may be " Santa Monica L. & M. Co. v. Hege, 119 Cal. 376, 51 Pac. Rep. 515. See Hines v. Miller, 122 Cal. 517, 55 Pac. Rep. 401, 402. See § 483, post. Nevada. Gould v. Wise, 18 Nev. 253, 3 Pac. Rep. 30 (it appeared that the agent of the corporation, also, had notice). " Phelps V. Maxwell's Creek G. M. Co., 49 Cal. 336, 338, under act of March 30, 1868, § 4 of which required notice of non-responsibility to be posted. See " Evidence," §§ 779 et seq., post. Nevada. Gould v. Wise. 18 Nev. 253, 3 Pac. Rep. 30. '» Ayers v. Green Gold M. Co., 116 Cal. 333, 336, 48 Pac. Rep. 221, the court saying, " It may be true that the corporation would be charge- able with the knowledge of Mrs. Crittenden (the contractor), had she been either actually or ostensibly representing or actingfor it in the transaction; but both the evidence and the findings show that she was not. . . . Mrs. Crittenden expressly stated to plaintiff that she was acting solely on her individual responsibility, and not for the corporation in any way." § 477 mechanics' liens. 436 of a permanent character, and has notice of circumstances sufficient to put a prudent man upon inquiry as to the actual improvement, and is charged with knowledge thereof, and such knowledge is not too vague to charge the lessor with the duty of giving notice of non-responsibility.-° And the '" Evans v. Judson, 120 Cal. 282, 284, 52 Pac. Rep. 585. Necessity of iiosting notice. The question whether it was neces- sary for the owner to post notices witliin three days after knowledge of the intention of the tenant to improve the premises at some indefi- nite future time was referred to, but not decided: See Hines v. MiUer, 122 Cal. 517, 55 Pac. Rep. 401, 402. In the case last cited the owner con- tracted to sell, and authorized the purchasers "to enter into immedi- ate possession," "and proceed to work and develop tlie same," etc., the owners to receive twenty-five per cent, ^ee notes to sections iinmediately preceding. As to constructive notice, see Kerr's Cyc. Civ. Code, § 19, note pars. 1-104. Agreement -with a lessee or conditional purcliaser that improve- ments must be made at his own cost, and that the lessor or seller will not be liable for labor or materials, will not satisfy the statute, nor protect the interest of the owner from liens; and if he had notice of tlie improvement, either from the agreement itself or otherwise, his interest will be bound, in the absence of posting of notice of non- responsibility required by the statute: Ah Louis v. Harwood, 140 Cal. 500, 506, 74 Pac. Rep. 41 (the effect of verbal notice of the terms of the option by the claimant was eliminated from the case). In Higgins v. Carlotta Gold Mining Co., 148 Cal. 700, 702, 705, 84 Pac. Rep. 758, 113 Am. St. Rep. 344, the court said, after referring to a pre- vious portion of § 1183 of the Code of Civil Procedure: "Then follows a provision wliich, as it stood when these liens were filed, was as follows: ' And every contractor, subcontractor, architect, builder, or other person having charge of any mining, or of the construction, alteration, addition to, or repair, either in whole or in part, of any building or other improvement, as aforesaid, shall be held to be the agent of the owner, for the purposes of this chapter.' By an amend- ment made afterwards, there was inserted, immediately after the words 'any mining,' the phrase, 'either in the development thereof or in working therein by the subtractive process': Stats. 1903, ch. Ixxvi, p. 84. We do not perceive liow this changes the effect of the clause as it stood before, but the question is not involved, for this case must be decided upon the law existing at the time the work was done and the liens filed. This clause, as a whole, refers to both classes of liens. The phrase ' any mining ' refers solely to the working of a mine, and its effect is that the person in charge of any ' mining ' is made the agent of the owner, although the work he is prosecuting does not in the least improve the property or add any- thing thereto, but destroys or lessens its inherent value, by removing the ore therefrom: Williams v. Hawley, 144 Cal. 97, 103, 77 Pac. Rep. 762. In order to make him the agent of the owner in such a case, however, such person must be in cliarge with the consent of the owner, and must be prosecuting or controlling the mining operations, eitlier wholly or in part, for the benefit of the owner: Jurgenson v. Diller, 114 Cal. 491, 46- Pac. Rep. 610, 55 Am. St. Rep. 83; Reese v. Bald Mountain Consol. G. M. Co., 133 Cal-. 285, 65 Pac. Rep. 578. Such benefit may be direct, as where the ore extracted, or some share of it, 437 ESTATES AND INTERESTS SUBJECT. § 477 fact that the improvements are to be removed by the tenant at the termination of the lease, and are not to remain as a remains the property of the owner, or it may be indirect, as wliere the ore, when extracted, is the property of the person in charge, but is to be sold by him, and a part or share of the proceeds is to be paid to tlie Qwner, or for his use or benefit. The legal effect would be the same in either case. The purpose of the statute, obviously, is to allow a lien for mining-work done upon a mine against the estate, or interest therein, of the person who is to be benefited thereby, whether done directly for him and at his request, or indirectly for his benefit at the request of some other person operating in pursu- ance of some express or implied contract with him. Such a case we have here. The lease is a contract; by its covenants the lessees undertook to do the mining-work, and both the lessees and the lessor were to share in the proceeds and benefits of the work. It might almost be said that such person would in such a case be authorized to bind the estate of the owner for a lien for such work without the aid of the special statutory provision making him constructively the agent of the owner for that purpose, but with the aid of the provision there can be no doubt of the proposition. There is nothing in either Jurgenson v. Diller, 114 Cal. 491, 46 Pac. Rep. 610, 55 Am. St. Rep. 83, or Reese v. Bald Mountain Consol. G. M. Co., 133 Cal. 285, 65 Pac. Rep. 578, that is contrary to this conclusion. In tlie first case the person who caused the ore to be extracted had no authority from the owner to do so, and was doing it for his own exclusive benefit. Although he was occupying the premises with the consent of the owner, he was, as to the mining-work, a mere trespasser. In the latter case the decision was put upon the ground that there was no finding that the person who caused the work to be done was the 'agent of the owner,' nor anything from which such fact would be necessarily implied, nor anything to show that the owner was to receive, or had received, any benefit from or on account of the work done or the ore extracted. All of these facts appear in the case at bar. Section 1192 of the Code of Civil Procedure has no application to mining-work which consists of removing ore solely by the ' subtractive process,' as it is termed in Jurgenson v. Diller. That section, by its express terms, applies only to 'every building or other improvement mentioned in §1183 of this code, constructed upon any lands,' and hence does not include or apply to ' mining '-work, which does not constitute, for any purpose, an improvement to the mine or to the land: Reese v. Bald Mountain Consol. G. M. Co., 133 Cal. 285, 288, 65 Pac. Rep. 578; Williams v. Santa Clara M. Assoc, 66 Cal. 193, 200, 5 Pac. Rep. 85; Jurgenson v. Diller, 114 Cal. 492, 46 Pac. Rep. 610, 55 Am. St. Rep. 83. With respect to the liens wholly or in part for work done for the ' purpose of opening up new ore-bodies and discovering better ore,' if such work consisted in making an 'improvement ' to the mine apart from or in addition to Its effect in obtaining ore from the rock excavated, it would come within tlie provisions of § 1192 of tlie Code of Civil Procedure. As the lease expressly provider that such work should be done by the lessees when they deemed it expedient, the lessor must be presumed to have had notice or knowledge of it from the beginning. Such work would also be for the lessor's benefit, either by reason of the increased receipts of net profits during the lease, or from the increased facility for the extraction of ore from the mine after the lease e.xpired. It is conceded that the appellant posted no notice disclaiming any liability lor such work or improvement, and consequently its estate in the property stands charged with a lien for the value thereof: Hines v. Miller, ] Z2 Cal. 517, 522, 55 Pac. Rep. 401." § 478 mechanics' liens. 438 part of the permanent improvements of the land, does not free the owner from the necessity of giving such notice.^^ § 478. Same. Vendee being in possession. Where the statute required notice of non-responsibility in order that the owner might free his interest from liability, and the per- son contracting with the claimant entered into possession of land and began to develop water by means of a tunnel, under an option of purchase, which provided that neither the prem- ises nor its owner should be held liable for labor performed in the effort to develop water, the owner's interest is subject to liens filed upon the premises for labor done after the expiration of the option, although it provided that the con- tractor, who subsequently became the purchaser, before the liens were filed, during the progress of the work was to fur- nish at his own cost all material and labor, unless the owner gave the statutory notice, or some notice equivalent thereto.^^ In mines and mining claims, where the contract of sale of a mine authorized the vendees to work and develop the same, a certain percentage of the gross product to be applied to the purchase price, the owners have notice of an improve- ment, which consisted of the sinking of a shaft, and their interest is subject to liens of the vendees' laborers.^^ But where a miner had knowledge of a contract under which his employer had the right to take possession, develop and im- prove the mine, at his own cost and expense, and keep the property free from all liens, he has no lien on the same, if he has knowledge that the employer did not assume to act on the owner's behalf.^* " W' est Coast L. Co. v. Apfleld, 86 Cal. 335, 340, 2* Pac. Rep. 993. See "Fixtures," §§185 et seq., ante. An agreement with a lessee or conditional purcliaser tliat improve- ments must be at his cost, and that the lessors or seller will not be liable for liens, will not, alone, satisfy or protect the land from liens: Ah Louis V. Harwood, 140 Cal. 500, 506, 74 Pac. Rep. 41. a Ah Louis v. Harwood, 140 Cal. 500, 506, 74 Pac. Rep. 41. Colorado. If the owner of an undivided interest in the premises permitted his vendee to take possession and improve the same, and the former posted no notice of non-responsibility, the interest of such owner was bound for liens: Seely v. NeiU (Colo.), 86 Pac. Rep. 334 (under Laws 1899, ch. cxvi-ii, § 5, p. 2267). 23 Hines v. Miller, 122 Cal. 517, 55 Pac. Rep. 401. See Birch v. Magic T. Co., 139 Cal. 496, 500, 73 Pac. Rep. 238; Ah Louis v. Harwood, 140 Cal. 500, 506, 74 Pac. Rep. 41. »« Reese v. Bald Mt. Cons. G. M. Co., 133 Cal. 285, 290, 65 Pac. Rep. 578. 439 ESTATES AND INTERESTS SUBJECT. §§479,480 § 479. Same. When notice not required. Notice of non- responsibility is not required, where not expressly provided in the statute, under the general rule heretofore stated.-^ Thus before the amendment of 1907, above quoted, the sec- tion did not apply to, nor Avas notice required to be given by, the owner, where the work was done on a house which was removed to a lot temporarily, and while thereon it was merely personal property.-'^ Before the amendment of 1907, set forth in a preceding section, unless the work was the construction, alteration, or repair of the objects ^^ mentioned in section eleven hundred and eight^'-three,-^ it seems no such notice was required to be given by the owner; for instance, where the work consisted in a subtractive process, such as " drifting in a tunnel." ^^ § 480. Same. When notice not required in case of mines and mining claims. And from the express language of sec- tion eleven hundred and ninety-two, it seems to apply only to a " building or other improvement mentioned in section eleven hundred and eighty-three ; ^^ but the decisions at first seem to declare that the notice by the owner was required in the case of work " in a mining claim," especially for struc- tures erected therein, if the owner desired to free himself from liability ; ^^ but the provision was held inapplicable to " §§ 471, 472, ante. =« Fresno L. & S. Bank v. Husted (Cal., June 17, 1897), 49 Pac. Rep. 195. =' See "Object of Labor," §§ 166 et seq., post. Nevada. See dissenting opinion, Gold v. Vi^ise, 18 Nev. 253, 3 Pac. Rep. 30. -'* Kerr's Cyc. Code Civ. Proe., § 1183. -" Jurg-enson v. Diller, 114 Cal. 491, 492, 46 Pac. Rep. 610, 55 Am. St. Rep. 83. See §§ 144 et seq., ante. But see amendment of 1903 to § 1183, Code Civ. Proc, Stats, and Amdts. 1903, p. 84. •^» Kerr's Cye. Code Civ. Proe., § 1183. " Hamilton v. Delhi M. Co., 118 Cal. 148, 152, 50 Pac. Rep. 378; Sil- vester V. Coe Q. M. Co., 80 Cal. 510, 513, 22 Pac. Rep. 217; Jurgenson V. Diller, 114 Cal. 491, 492, 46 Pac. Rep. 610, 55 Am. St. Rep. 83; Ayers V. Green G. M. Co., 116 Cal. 333, 336, 48 Pac. Rep. 221; Hines v. Miller, ir2 Cal. 517, 55 Pac. Rep. 401. See Phelps v. Maxwells Creek G. m! Co., 49 Cal. 336 (1868). But see also Donohoe v. Trinity Consol. G. & S. M. Co., 113 Cal. 119, 123, 45 Pac. Rep. 249, wliere the question of notice was not at all considered. To be in perfect symmetry with the gen- eral interpretation given to the "object" mentioned in §1183 of the §480 mechanics' liens. 440 the labor of a miner in a mine."- Where improvements are made in a mine by persons other than the owner, under cir- cumstances which would constitute such persons agents of Code of Civil Procedure (see §§ 166 et seq., ante, and §§ 130 et seq., ante), tlie provision seems to be applicable to " buildings and other improvements " or " structures," under the first clause of § 1183, and not to work " in mining claims," under the second clause of that section, even if the work were upon a "structure in a mining claim": See §§ 130 et seq., ante. In this connection, in a case where a lien for work was sought to be foreclosed upon a mining claim, the court, speaking of § 1192 of the Code of Civil Procedure, said: ■' The language of the section last recited, which treats of buildings and improvements, and of knowl- edge of the construction, etc., would hardly cover a case like the one now before us": Williams v. Santa Clara M. Assoc, 66 Cal. 193, 200, 5 Pac. Rep. 85. As to the application of provision for notice of non-responsibility under § 1192, before amendment of 1907, not being applicable to mining claims, except for structures erected thereon, see Reese v. Bald Mi. Consol. G. M. Co., 133 Cal. 285, 65 Pac. Rep. 578. Oregon. Under mining lien law (Laws 1891, p. 76), giving a lien for work and labor in developing a mine, except as against the owner of a mine worked by a lessee, the owner's interest is not bound, where the holder of an irrevocable, exclusive license, coupled with an inter- est, under which possession may be maintained against all persons, develops a mine, he being a lessee within the intent of the statute: Stinson v. Hardy, 27 Oreg. 584, 41 Pac. Rep. 116. Section 3672 of Hill's Ann. Laws refers to the work and objects mentioned in § 3669. There is no provision in the said act giving a lien on mines similar to § 3672, supra. ^^ Section 1192 of the Code of Civil Procedure, as it stood before the amendment of 1907, mentions every building or improvement constructed upon lands with the knowledge of the owner, and ex- pressly provides for a case where notice is not given within three days after the owner shall have obtained knowledge of the construc- tion, alteration, or repair, by posting a notice in some conspicuous place upon the land, building, or improvement. The section cannot be held applicable to a claim by a miner for labor in a mine. Labor in a mine is not a building or improvement constructed upon lands. The finding is, that appellant had full notice of the contract, and of all work being done thereunder. Even if the complaint were sufficient, the finding does not show that any building or improvement was con- structed upon the lands of appellant with its knowledge. W'e think tlie views herein expressed are supported by the cases of Williams v. Santa Clara M. Assoc, 66 Cal. 200, and Jurgenson v. Diller, 114 Cal. 491, 492, 46 Pac. Rep. 610, 55 Am. St. Rep. 83. In the latter case it was held that labor performed in " drifting a tunnel " is not the con- struction, alteration, or repair of a building or other improvement, under § 1192 of the Code of Civil Procedure; that the doctrine of notice does not apply when the work consists of a subtractive process, — the removal of the verj' corpus of the property. It was said: "As well require one who sees a trespasser cutting his timber to post notice of his nonrliability, under penalty of liaving his land subjected to a lien for the labor": See Reese v. Bald Mt. Consol. G. M. Co., 133 Cal. 285, 291, 65 Pac. Rep. 578. 441 ESTATES AND INTERESTS SUBJECT. § 481 the owner, it has been said that the doctrine of notice has no application.^^ Personal property on mine. A person owning personal property situated on a mine is not the " owner " of the mine, nor has he such an interest therein as would require him to post a notice of non-responsibility, to avoid mechanics' liens attaching to such personal property.^* A person performing labor in a niining claim, for one having a contract of pur- chase thereof, to which the latter has annexed mining ma- chinery leased by him, under a lease the terms of which were sufficient, as between himself and the lessor, to continue the identity of the machinery as the personal property of the lessor before the amendment of section eleven hundred and ninety-two in 1907, was not entitled to a lien upon such prop- erty ; ^^ for, where mining machinery, before such amend- ment, was placed upon a mine under a contract by which the same machinerj'^ was leased to the vendees of the mine in pos- session of and operating same, and by the terms of which lease the machinery retained its character as personal prop- erty, the lessor need not give notice of non-responsibility, to prevent a lien from attaching to the machinery.^'' § 481. Same. Notice not required in case of grading and other work in incorporated cities. It has been determined that the provision as to notice by the owner does not apply to work done under section eleven hundred and ninety-one of the Code of Civil Procedure,^" such as the grading of lots in incorporated cities, which is not the " construction . . . of any building or other improvement," mentioned in section 33 Hines v. Miller, 122 Cal. 517, 519, 55 Pac. Rep. 401. New Mexico. Co-owners failing to post notice required by § 2226, Comp. Laws 1897, claimants have lien on the entire claim, where such co-owners authorize other co-owners and others to place mining machinery upon the claim and do mining thereon: Post v. Fleming, 10 N. M. 476, 62 Pac. Rep. 1087. 3* Jordan v. Myres, 126 Cal. 565, 567, 58 Pac. Rep. 1061 (before amendment of 1907). Lease of per.sounl iiroperty, such as unafRxed machinery in mines. In 1896, was not provided for in the statute, and hence gave no notice: Jordan v. Myres, 126 Cal. 565, 567, 58 Pac. Rep. 1061. 3= Jordan v. Myres, 126 Cal. 565, 567, 58 Pac. Rep. 1061. »« Jordan v. Myres, 126 Cal. 565. 567, 58 Pac. Rep. 1061. »' Kerr's Cyc. Code Civ. Proc, § 1191. § 482 mechanics' liens. 442 eleven hundred and eighty-three of that code,"'^ in accord- ance with the rule mentioned in preceding sections. ^^ § 482. Same. Notice not required in case of prior liens. The provision as to notice of non-responsibility does not apply to nor affect the interest of a prior vendor's lien.*" or a mortgagee under a recorded mortgage, for the mortgage is not such an " interest in thfe land " on which the building or improvement may be constructed, within the meaning of the provision ; and in this connection the court has said : " It seems sufficiently plain that the section of the code refers to an estate or interest in land which may be sold and con- veyed, and does not provide that a mere lien shall become ' subject ' to another subsequent lien, in the sense that the later lien shall acquire precedence over the prior." *^ Deed of trust. Nor does the rule apply to the interest of a person holding under a deed of trust as security.*^ 5s Santa Cruz R. P. Co. v. Lyons, 117 CaL 212, 214, 48 Pac. Rep. 1097, 59 Am. St. Rep. 174; Santa Cruz R. P. Co. v. Lyons, 133 Cal. 114, 118, 65 Pac. Rep. 329. ■>" §§ 471, 472, ante. *» Kuschel V. Hunter (Cal., Sept. 14, 1897), 50 Pac. Rep. 397. " W'illiams v. Santa Clara M. Assoc, 66 Cal. 193, 201, 5 Pac. Rep. 85, 4 W'est Coast Rep. 616; the court also saying- (p. 200), "It is very- plain 'the owner or person having- or claiming an interest' in the lands on which an improvement is erected, is not the person referred to in § 1186 as having a ' lien, mortgage, or encumbrance.' " See "Priorities," §§486 et seq., post. Compare: Soule v. Dawes, 14 Cal. 247, where it was held that the interest of a mortgagee was subject to a lien for extra work com- menced after the mortgage was given, under a general provision in the contract for extra work, provided the work was done with the knowledge of the mortgagee and without objection from him. Same point similarly decided in Capron v. Strout, 11 Nev. 313. See Haxtun S. H. Co. V. Gordon, 2 N. D. 246, 251, 50 N. W. Rep. 708, 33 Am. St. Rep. 776, 779 (distinguishing Soule v. Dawes on the facts, but holding the lien prior to the mortgage on the facts). As to priority of mechanic's lien over mortgage, see note 33 Am. St. Rep. 783. Oreson. Capital L. Co. v. Ryan, 34 Oreg. 73, 54 Pac. Rep. 1093, citing Williams v. Santa Clara M. Assoc, 66 Cal. 193, 200, 5 Pac. Rep. 85, 4 W'est Coast Rep. 616. « wniliams v. Santa Clara M. Assoc, 66 Cal. 193, 200, 5 Pac. Rep. 85, 4 W^est Coast Rep. 616; and see Kuschel v. Hunter (Cal., Sept. 14, 1897), 50 Pac. Rep. 397 (dictum); and see W^eber v. McCleverty, 149 Cal. 316, 322. 323, 86 Pac. Rep. 706-; see "Priorities," §§486 et seq., post. Contra: Fuquay v. Stickney, 41 Cal. 588, 586. 443 ESTATES AND INTERESTS SUBJECT. §§ 48.J, 484 § 483. Same. Effect of knowledge of claimant of lack of authority of person making improvement. Where the claim- ant has actual notice that tlie owner did not authorize the work, and that the person having charge of a mining claim does not own the property, and was not authorized, there is no lien.^" As indicated in the note, this subject has been touched upon in a preceding section of this work. § 484. Same. Notice, when to be posted. Under section eleven hundred and ninety-two,"** notice may be posted within the statutory period after construction has been actually begun by a lessee, notwithstanding the fact that the owner had knowledge of the intention to construct before the commencement thereof.*^ Whoever drafted the section above referred to may have concluded, when he had framed the expression, " knowledge of the construction," etc., that it might be understood to mean the completion of the work, and so added the expression, " or the intended construction," etc., for the purpose of greater clearness, thinking that the actual commencement of the improvement would thus be more clearl}^ indicated. The phrase, " intended construc- tion," is susceptible of a different meaning than if it read, " or the intention to construct," etc. However this may be, the statute should be given an interpretation that would best answer its purposes, and this can be ascertained by keeping in mind the various conditions to which the law must be ap- plied. Contracts for the sale as well as for the leasing of land conditional on its improvement by the purchaser or lessee at some future time, are quite common. This contem- plated improvement may be for a short period, or it may be for one or more years, the work not to begin for many months, or even years, in the indefinite future, and the con- " Jurg-enson v. Diller, 114 Cal. 491, 492, 46 Pac. Rep. 610, 55 Am. St. Rep. 83; and see Silvester v. Coe Q. M. Co., 80 Cal. 510, 513, 22 Pac. Rep. 217 (the employer, apparently, had no interest in the property). See § 475, ante. ** Kerr'.s Cyc. Code Civ. Proc, § 1192. « Birch V. Magic T. Co., 139 Cal. 496, 500, 73 Pac. Rep. 238. (lueMti<>n ^viicther notice pcsted ^vitliin three days nfter knowIedKe of the intended future construction of a building by a lessee would, in all cases, be sufficient to protect the owner, not decided in Bircli v. Magic T. Co., supra. § -184 mechanics' liens. 444 tract or its terms may be unknown to the laborer or material- man who in this distant future is to furnish labor or material for the improvement. The owner would be charged with knowledge of the intended work as soon as he signs the con- tract, and, under such circumstances, it has been contended that he must within three days post his notice or lose his protection against the lien ; but, on the other hand, if he post such notice, it is not at all likely that it would remain posted and be conspicuous when, in the future, the laborers and material-men would be called upon to furnish labor and material, and yet the owner would be protected. If, however, the owner posted his notice within three days after the actual construction began, the persons interested could not fail to observe it, and would govern themselves accordingly. It is a much better protection to the laborers and material-men, and equally subserves to protect the owner, to hold the notice posted by the owner " within three days after he shall have obtained knowledge of the construction " (i. e., the actual beginning of the w^ork) to be in time, and such is the notice referred to in the statute. Whether or not a notice posted within three days after knowledge of the intended construction would in all cases be sufficient to protect the owner is a question not yet decided. A failure to give such a notice within three days after he has obtained knowledge of the actual commencement of the work does not deprive him of the protection given him by the statute.*^ ^"^ In Bvans v. Judson, 120 Cal. 282, 52 Pac. Rep. 585, the lease con- templated improvements within a short period in the future, and the owner posted no notice disclaiming- responsibility. It was held that the landlord, who was to benefit by the improvements, was charged by the lease with knowledge of the actual improvement. So held, also, in Hines v. Miller, 122 Cal. 517, 55 Pac. Rep. 401. In FinjMay v. Stickney, 41 Cal. 583, the case arose under the act of 1867-68. The court said: "If the owner of land . . . knowingly per- mits buildings and improvements to be erected on it without giving notice that it is done without his consent, it is eminently just that he shall be held to have acquiesced in it." "In the cases cited, and others we have examined, no notice was given, and the point decided was, that, having authorized the improvements, the owner is charged with knowledge that they are to be made; but we find no case deciding at wliat particular time the notice must be given": Birch v. Magic T. Co., 139 Cal. 496, 500, 73 Pac. Rep. 238. " To hold that the statute compels the owner to give the notice TTithin three days after he has knowledge of the intended construc- tion would, in most cases, give no effect to the provision as to notice, 445 ESTATES AND INTERESTS SUBJECT. § 485 § 485. Same. Notice, how posted. Conspicuous place. The section mentioned in the preceding sections/" as amended in 1907, provides that the notice of non-responsi- bihty must be posted " in some conspicuous place upon said land or mining claim or claims, or upon the building or other improvements situated thereon," othervrise it will not be sufficient, unless the claimant had actual knowledge that such a notice had been posted,*^ where he had knowledge of the actual construction. But we cannot say that the legislature had no object in making- this provision. It would be more reasonable to suppose that it was intended to provide that the owner might give the notice within three days after the actual construction was commenced": Birch v. Magic T Co 139 Cal 496, 498, 500, 73 Pac. Rep. 238. " See §§ 473 et seq., ante. ^« Silvester v. Coe Q. M. Co., 80 Cal. 510, 513, 22 Pac. Rep. 217. Recording notice of non-responsibility: See Kerr's Cyc. Code Civ. Proe., § 1192, Kerr's Stats, and Amdts. 1906-07, p. 481. Nevada. Personal notice was held to be insufficient, in Rosina v. Trowbridge, 20 Nev. 105, 17 Pac. Rep. 751. Oregon. Where a notice is posted in good faith by the owner, with the intent and purpose that it should remain as long as a notice would remain in a place of that nature under ordinary conditions, the presumption is that it remained a sufficient length of time to impart knowledge to the persons it is intended to affect, and the failure to show the length of time the notice remained posted is immaterial: Marshall v. Cardinell, 46 Oreg. 410, 80 Pac. Rep. 652 (under Bellinger and Cotton's Ann. Codes and Stats., § 5643). Where notice wa.s posted on front of building bordering; on public street, and its position was such that it could readily be observed by persons entering the building, both by a stairway and upon the first floor, the conspicuousness of the place was commended: Marshall v Cardinell, 46 Oreg. 410, 80 Pac. Rep. 652 (under Bellinger and Cotton's Ann. Codes and Stats.. § 5643). Notice posted in little recess on a partition wall several feet back from street, not easily seen, was not posted in a conspicuous place under Hill's Ann. Laws, § 3672, and knowledge by a claimant of such posting, after furnishing materials, will not relieve the owner's property from liability: Nottingham v. McKendrick, 38 Oreg 495 fi^ Pac. Rep. 822, 59 Id. 195. § 486 mechanics' liens. 446 CHAPTER XXV. LIMITATIONS ON LIENS (CONTINUED). PRIORITIES. § 486. Scope of chapter. § 487. Priorities between mechanics' liens and other estates or interests, or other classes of liens. § 488. Same. Statutory statement of rule. § 489. Same. General analysis of provision. § 490. Same. Grants and conveyances. § 491. Same. Doctrine of relation. § 492. Same. Lien for materials. § 493. Same. Contractors and subcontractors. Void contract. Homestead. § 494. Same. Parts of day. § 495. Same. General rule. § 496. Same. Mortgage for purchase price. § 497. Same. Mortgage for future advances. § 498. Same. What constitutes " further advances." § 499. Same. Reformation and alteration of instruments. § 500. Same. When lien claimants may attack prior encumbran- ces. § 501. Same. Garnishment by creditor. § 502. Same. Lien on two or more buildings. Statutory provision. § 503. Same. When provision as to two or more buildings appli- cable. § 504. Priorities inter sese. Statutory provision. § 505. Same. Nature of provision. § 506. Same. Effect of constitution on statutory provision. § 507. Same. Insufficient proceeds. Prorating. § 486. Scope of chapter. In the last preceding chapters the subject of the estates and interests subject to mechanics' liens has been considered absolutely, and without reference to their relative value as affected by other estates, interests, or liens. ^ In this chapter will be treated the latter subject, or the ranking of mechanics' liens Avith reference: 1. To other estates, interests, or other classes of liens; and 2. As between mechanics' liens themselves. > See § 439, ante. 447 PRIORITIES OF LIENS. § 487 § 487. Priorities between mechanics' liens and other es- tates or interests, or other classes of liens.- In the absence of any statutory provisions as to record or notice, liens have precedence over other estates or interests, or other classes of liens, in accordance with the maxim, Qui prior est tempore, potior est jure, — He who is prior in time is stronger in right.^ Claimants are, under such circumstances, charged with notice as to unrecorded mortgages.* On the other hand, * As to priority of meclianics' liens over mortgage for advances, see 7 Am. & Eng-. Ann. Cas. 617, 624. As to priority of mechanics' liens generally, see note 13 L. R. A. 705. As to marshaling of liens, see Dunlop v. Kennedy (Cal., Aug. 31, 1893), 34 Pac. Rep. 92. 95 (rehearing granted). Idaho. See dissenting- opinion, PacifT?> States S. L. & B. Co. v. Dubois, 11 Idaho 319, 83 Pac. Rep. 513, 521. Oregon. See Gaines v. Childers, 38 Greg. 200, 63 Pac. Rep. 487. Marshaling assets: See Smith v. Wilkins, 38 Greg. 583, 588, 64 Pac. Rep. 760, 761. Utah. See Cahoon v. Fortune M. & M. Co., 26 Utah 86, 72 Pac. Rep. 437. See Fields v. Daisy G. M. Co., 26 Utah 373, 73 Pac. Rep. 521, s. c. 25 Utah 76, 69 Pac. Rep. 528, 529. Washington. Stipulation as to priorities not to affect other lien claimants: See Potvin v. Dennj' Hotel Co., 9 Wash. 316, 37 Pac. Rep. 320, 38 Pac. Rep. 1002. As to priority of logger's lien, see Jewett v. Darlington, 1 Wash. 601 (U. S.). As to priority of farm-laborers' liens on crops, see Pierce's Code, § 6127. and notes. As to lien on franchises, etc., under L.a'tvs 1897, p. 55, § 1, see Fitcli V. Applegate, 24 Wash. 25, 31, 64 Pac. Rep. 147. ■' Preston v. Sonora Lodge, 39 Cal. 116, 118 (dictum); Williams v. Santa Clara M. Assoc, 66 Cal. 193, 199, 5 Pac. Rep. 85, 4 W'est Coast Rep. 616 (dictum). See Cahoon v. Levy, 6 Cal. 296, 298, 65 Am. Dec. 515; Walker v. Hauss-Hijo, 1 Cal. 183, 186; Wilson v. Donaldson, 121 Cal. 8, 10, 53 Pac. Rep. 404, 43 L. R. A. 524, 66 Am. St. Rep. 17 (crops as per- sonal property; priority with reference to chattel mortgage). Colorado. The right to a lien cannot impair a valid lien by deed of trust upon the land, which is recorded prior to the time when the mecJianic's lien attached; but, in the absence of special circumstances, the latter may take precedence with regard to the building: Joral- mon V. McPhee. 31 Colo. 26, 71 Pac. Rep. 419. I'riority of lien of mortgage on land, and subordination thereof ^vitli reference to the building: See Jorahnon v. McPhee, 31 Colo. 26, 71 Pac. Rep. 419. See also 7 Am. & Eng. Ann. Cas. 617, 624. Hawaii. Time of filing, the test of priority under the statute: Lucas V. Redward, 9 Hawn. 23, 26. .llontana. Priority between mechanic's lien and attachment lien: See A. M. Holter H. Co. v. Ontario M. Co., 24 Mont. 184, 61 Pac. Rep. 3. * Rose V. Munie, 4 Cal. 173, 175. See Soule v. Dawes, 7 Cal. 576, 14 Cal. 247. See notes, §§ 469 et seq., ante. Record notice limited to subsequent mortgagees and purchasers: Denni* v. Burritt, 6 Cal. 670, 672, 673; Pepley v. Huggins, 15 Cal. 127, § 488 mechanics' liens. 448 persons dealing with the property during the progress of the work are, independently of any statutory rule, charged with notice of the claims of mechanics;^ and when the lien has once attached, grants and encumbrances do not affect the lien.® § 488. Same. Statutory statement of rule. As between lien-holders under the mechanic's-lien statute and third parties, the statutory provision ' substantially follows the general equitable maxim quoted in a preceding section;^ as applied to the recording statute, as follows : " The liens pro- vided for in this chapter are preferred to any lien, mortgage, or other encumbrance which may have attached subsequent to the time when the building, improvement, or structure was commenced, work done, or materials were commenced to be furnished; also, to any lien, mortgage, or other encum- brance of which the lien-holder had no notice, and which was 132; McCabe v. Grey, 20 Cal. 509, 516. See Miller v. Stoddard, 50 Minn. 272, 276, 52 N. W. Rep. 895; Sharon v. Minnick, 6 Nev. 377, 391; Adams v. Baker, 24 Nev. 162, 169, 51 Pac. Rep. 252, 77 Am. St. Rep. 799. Colorado. The lien has precedence over a prior mortgage upon the land upon which the improvement is erected, where the mortgage is given in the usual way, without intent that it shall cover the im- provements, and the lien claimants have no notice that it does so: Joralmon v. McPhee, 31 Colo. 26, 71 Pac. Rep. 419, 421 (under provis- ions Mills's Ann. Stats., § 2884). Utah. Sanford v. Kunkel, 85 Pac. Rep. 363, 365, 1012. Mortgage for advances for building purposes not subject to the rule. The court say: "Where mechanics and material-men have notice of a mortgage which is given expressly for the purpose of securing funds to construct an improvement, and know that the funds thus obtained are being applied in that way, their rights must be held subordinate to those of the mortgagee, to the extent of such advances, because of this knowledge. In other words, when they know that a structure upon which they are engaged has been pledged as a security for advances towards its construction by a contract entered into before the work of erection was commenced, they are bound by such arrangement, up to the extent that funds under such contract are actually advanced and applied to construct the building": Joralmon v. McPhee, supra, citing: Kiene v. Hodge. 90 Iowa 212. 57 N. W. Rep. 717; Hoagland v. Lowe, 39 Neb. 397, 58 N. W. Rep. 197; Patrick Land Co. v. Leavenworth, 42 Neb. 715, 60 N. W. Rep. 954; James River L. Co. v. Danner, 3 N. D. 470, 57 N. W. Rep. 343; Anglo- American S. & L. Assoc. V. Campbell, 13 D. C. 581, 43 L. R. A. 632. = Soule V. Dawes, 7 Cal. 575. 577, s. c. 14 Cal. 247, 256; Crowell v. Gilmore, 13 Cal. 54, 57. « Gaskill V. Moore, 4 Cal. 233, 235. ' Kerr's Cyc. Code Civ. Proc, § 1186. • See § 487, ante. 449 PRIORITIES OF LIENS. §§ 489, 490 unrecorded at the time the buildiiig, improvement, or struc- ture was commenced, work done, or the materials were com- menced to be furnished." ® § 489. Same. General analysis of provision. The first clause of 'the -statutory provision set forth in the last preced- ing section has reference to " subsequent " encumbrancers, and the second clause to " prior " encumbrancers.^*^ Valid or void original contract. Under this provision of section eleven hundred and eighty-six,^^ the cases must be divided into two categories, distinguished by the existence or non-existence of a valid original contract. In the former case, the priority of the liens is to be determined by the date of the commencement of the building; in the latter, by the time the work was done or the materials were commenced to be furnished.^^ § 490. Same. Grants and conveyances. It will be noticed that the provisions of section eleven hundred and eighty- Bix ^^ do not expressly mention grants and conveyances of real property, but, under the general principles of priorities, which have their enunciation in the Civil Code,^* it is thought that these liens take precedence over subsequent " grants " ' liien relates back to the time the work was done or the material commenced to be furnished for which lien is claimed, and the lien lias priority over a deed of trust executed about a year after the com- mencement of such work and the furnishing- of such material: Farn- ham V. California S. D. & T. Co. (Cal. App., May 18, 1908), 96 Pac. Rep. 788. L'tah. Carey-Lombard L. Co. v. Partridge, 10 Utah 322, 37 Pac. Rep. 572. AVasliington. Nason v. Northwestern M. & P. Co., 17 Wash. 142, 49 Pac. Rep. 235. See Bell v. Groves, 20 Wash. 602, 56 Pac. Rep. 401. " This provlMion has no reference t« itriority an between elainiantH Of liens for labor or materials as between tliemselves, since this is provided for by Kerr's Cyc. Code Civ. Proe., §1194; treated in §§504 et seq., post. " Kerr's Cyc. Code Civ. Proc., § 1186. " McClain v. Hutton, 131 Cal. 132, 135, 144, 61 Pac. Rep. 273, 63 Id. 182, 622. See Davies-Henderson L. Co. v. Gottschalk, 81 Cal. 642, 22 Pac. Rep. 860; Avery v. Clark, 87 Cal. 619, 25 Pac. Rep. 919, 22 Am. St. Rep. 272; Pacific M. L. I. Co. v. Fisher, 106 Cal. 224. 236, 39 Pac. Rep. 758. See § 491, post. " Kerr's Cyc. Code Civ. Proc, § 1186. " See Kerr's Cyc. Civ. Code, §§ 2897 et seq., and notes. Mech. Liens — 29 § 491 mechanics' liens. 450 and " conveyances," and also over prior unrecorded grants and conveyances, although the section expressly refers only to " liens, mortgages, and other encumbrances." ^^ § 491. Same. Doctrine of relation. ^'^ To determine whether an encumbrance is prior or subsequent in point of time, resort is had to the doctrine of relation, and, as ex- pressed in section eleven hundred and eighty-six,^' the time when the '' building, improvement, or structure was com- menced, work done, or materials were commenced to be fur- nished," fixes the point of time to which these liens relate. ^^ " The California statute, notwithstanding the general statement of some of the decisions, regards the building, at least for certain pur- poses, as a fixture to the land, and does not provide for priority of the lien over prior mortgages, etc., so far as the Improvements are concerned, as is the case in other statutes herein considered. In Hotalins v. Cronise, 2 Cal. 60, 64, decided under the act of 1850 (§ 9), which provided that the "lien shall be preferred to every other lien or encumbrance which attached subsequent to the time at whicli the work was commenced or materials were furnished," it was held that the transfer of the property before the lien was filed for record did not affect the lien. See Gaskill v. Moore, 4 Cal. 233, 235; Soule v. Dawes, 7 Cal. 576, 577: McGreary v. Osborne. 9 Cal. 119, 125 (1856); and Shuffleton v. Hill, 63 Cal. 483, 6 West Coast Rep. 436. But see Montrose v. Conner, 8 Cal. 344, 347 (1855), where a subsequent pur- chaser had no notice. Colorado. See Mellor v. Valentine, 3 Colo. 255 (unrecorded bond to reconvey); Tritch v. Norton, 10 Colo. 337, 15 Pac. Rep. 680 (1881); Marean v. Stanley, 5 Colo. App. 340 (taking notice of parts of day). Montana. Under Comp. Stats. 1887, §§ 1374, 1376, the lien of a me- chanic as to the improvement was superior to a prior mortgage on the land; but as to the land itself, the prior mortgage maintained precedence; and therefore where a claimant did not erect a building nor place such improvement upon a mining claim as was susceptible of removal, his lien yielded to a prior mortgage: Johnson v. Puritan M. Co.. 19 Mont. 30, 47 Pac. Rep. 337. See Grand Opera House Co. v. Maguire, 14 :Mont. 558, 37 Pac. Rep. 607; Montana L. & M. Co. v. Ob- elisk M. Co., 15 Mont. 24, 37 Pac. Rep. 897; Murray v. Swanson, 18 Mont. 533. 46 Pac. Rep. 441; Mason v. Germaine, 1 Mont. 273 (1865). Utah. A conveyance procured in fraud of a mechanic's lien will not have the effect of precluding the foreclosure of the lien, although notice of the lien be filed subsequent to the purchase, but within the statutory limit: and where one purchased property to which a valid lien has attached, it is to be presumed that the price was fixed with reference to the encumbrance, or that the purchaser secured himself from liens in some other way: Ellis v. Breisacher, 8 Utah 108, 29 Pac. Rep. 879. " As to relation, see notes 7 Am. & Eng. Ann. Cas. 624; 16 L. R. A. 335. " Kerr's Cye. Code Civ. Proc., § 1186. 1" Davies-Henderson L. Co. v. Gottschalk, 81 Cal. 641. 64S, 22 Pac. Rep. 860 (material); Germania B. & L. Assoc, v. Wagner, 61 Cal. 349, 451 PRIORITIES OF LIENS. § 491 Lien on mine. Relation back. Work done on a mine, con- sisting of breaking down and tearing away from the face of 354 (materials); Barber v. Reynolds, 44 Cal. 519, 533 (1862); McCrea V. Craig-, 23 Cal. 522, 525; Soule v. Dawes, 7 Cal. 576, 577; Crowell v. Gilmore, 13 Cal. 54, 57; Tuttle v. Montford, 7 Cal. 358, 360 (1S55); Williams v. Mountaineer G. M. Co., 102 Cal. 134, 142, 34 Pac. Rep. 702, 36 Id. 388 (mining claim); Purser v. Cady (Cal., June 17, 1897), 49 Pac. Rep. 180 (labor). Relation, valid or void contract: See § 489, ante. Colorado. Keystone M. Co. v. Gallagher, 5 Colo. 23 (1872); Small V. Foley, 8 Colo. App. 435, 445, 47 Pac. Rep. 64 (1889); Tritch v. Norton, 10 Colo. 337, 15 Pac. Rep. 680 (1881). The contractor must inform himself of prior liens; the rule of caveat emptor applies: See Cornell v. Dunbar Lumber Co., 9 Colo. App. 225, 47 Pac. Rep. 912; Schradsky v. Dunklee, 9 Colo. App. 394, 48 Pac. Rep. 666. Failure to perfect lien also relates back: Schradsky v. Dunklee, supra. See also Orman v. Crystal River R. Co., 5 Colo. App. 493, 498, 39 Pac. Rep. 434; Chicago L. Co. v. Dillon, 13 Colo. App. 196, 56 Pac. Rep. 989. Hawaii. Contra: Lucas v. Redward, 9 Hawn. 23, 25 (under Sess. Laws 1888). Idaho. Pacific States S. L. & B. Co. v. Dubois, 11 Idaho 319, 83 Pac. Rep. 513 (under Sess. Laws 1899, p. 149, § 11). Montana. Murray v. Swanson, 18 Mont. 533, 46 Pac. Rep. 441 (1887); Mason v. Germaine, 1 Mont. 263 (1879); Merrigan v. English, 9 Mont. 113, 22 Pac. Rep. 454, 5 L. R. A. 837 (lien held to relate back to commencement of work by the original contractor); Mochon v. Sullivan, 1 Mont. 472 (1865). See Davis v. Alvord, 94 U. S. 545, 547, bk. 24 L. ed. 283, modifying (see note 21, post, this chapter) Davis v. Bils- land, 85 U. S. (18 Wall.) 659, bk. 21 L. ed 969; Alvord v. Hendrie, 2 Mont. 115. Nevada. See Sabin v. Connor, 21 Fed. Cas., p. 124. Orej^on. Tatum v. Cherry, 12 Oreg. 135, 6 Pac. Rep. 715 (1874); In re Coulter, 2 Sawy. C. C. 42, 6 Fed. Cas., p. 637; Kendall v. McFarland, 4 Oreg. 293. Statute must be strictly complied with, to secure such precedence: Kendall v. McFarland, supra. See Willamette Falls Co. v. Riley, 1 Oreg. 183, 187. The lien attaches when the materials are first placed on the prem- ises, or when the work is begun, and remains inclioate until the claim is filed, under Hill's Ann. Stats., § 3671 (Bellinger and Cotton's Ann. Codes and Stats., § 5644), when it becomes effective, and relates back to the commencement of tlie structure: Henry v. Hand, 36 Oreg. 492, 59 Pac. Rep. 330. See Inman v. Henderson, 29 Oreg. 116, 45 Pac. Rep. 300. Utah. Fields v. Daisy G. M. Co., 25 Utah 76, 69 Pac. Rep. 528; Mor- rison V. Inter-Mt. S. Co., 14 Utah 201, 46 Pac. Rep. 1104; Morrison v. Carey-Lombard Co., 9 Utah 70, 33 Pac. Rep. 238; Spargo v. Nelson, 10 Utah 274. 37 Pac. Rep. 495; Carey-Lombard L. Co. v. Partridge, 10 Utah 322, 37 Pac. Rep. 572. No lien can attacli until claimant flies statement of liis intention to do work and furnish materials (§ 12), or begins to work or furnish materials: Morrison v. Carey-Lombard Co., supra; Garland v. Bear Lake & R. W. Irr. Co., 9 Utah 350, 34 Pac. Rep. 368; Teahen v. Nelson, § 491 mechanics' liens. ' 452 the drifts and mine the quartz and substances of the mine, entitles laborers to a mechanic's lien, under section eleven hundred and eighty-three of the Code of Civil Procedure ; and upon filing the lien the right relates back to the time when the labor was performed. ^'■^ The distinction between the time at which the lien at- taches, and the time to which it relates after it has once attached, must be drawn ; for instance, no " lien " attaches to the property until the claim has been filed for record, as it is inchoate ; ^° but after such filing the " lien " relates back to the time when the work was done or materials were com- menced to be furnished, etc. Some confusion exists in the decisions because of a failure clearly to observe this distinc- tion. Notwithstanding the broad language of this section, it is not probable that the lien of the owner's laborer or material-man, who begins work or furnishes material after the building has been commenced, and after a mortgage has been given upon the property, would have priority over the mortgage ; ^^ and the expression, " building or structure was 6 Utah 363, 23 Pac. Rep. 764. See Sierra Nevada L. Co. v. Whitmore, 24 Utah 130, 66 Pac. Rep. 779, 781; Culmer v. Caine, 22 Utah 216, 61 Pac. Rep. 1008, 1010. AVashing'ton. Nason v. Northwestern M. & P. Co., 17 Wash. 142, 49 Pac. Rep. 235, in which it was held that the lien related back to the time of beginning the labor so as to take precedence of a lis pendens filed before filing the claim of lien (Laws 1893, p. 33, §4; Ballinger's Ann. Codes and Stats., §5903); Huttig Bros. Mfg. Co. v. Denny Hotel Co., 6 Wash. 122, 129, 34 Pac. Rep. 774; Keene G. S. Bank v. Law- rence, 32 W'ash. 572, 73 Pac. Rep. 680. In the last case, even though the materials were contracted for before the execution of the mortgage, but were delivered afterwards, the court said that " the date of the actual furnishing of the material governs the inception of the lien." Wyoming. See Big Horn L. Co. v. Davis, 14 Wyo. 455, 84 Pac. Rep. 900, .905, 85 Id. 1048. " Chappius V. Blankman, 128 Cal. 362, 365, 60 Pac. Rep. 925. »> See § 19, ante. " See Crowell v. Gilmore, 18 Cal. 370, 372 (1856); Barber v. Rey- nolds, 44 Cal. 519, 533 (1862); Davies-Henderson L. Co. v. Gottschalk, 81 Cal. 641, 648, 22 Pac. Rep. 860. See further, §§ 495 et seq., post. Montana. Contra: Davis v. Bilsland, 85 U. S. (18 Wall.) 659, bk. 21 L. ed. 969, three justices dissenting — construing an early statute. AVasliingrton. Huttig Bros. Mfg. Co. v. Denny Hotel Co., 6 Wash. 122, 32 Pac. Rep. 1073 (Gen. Stats., §1666); Home S. & L. Assoc, v. Burton, 20 Wash. 688, 56 Pac. Rep. 940 (Hill's Ann. Codes and Stats., §1960). "Each lien, under our statute, must stand upon its own footing." 453 PRIORITIES OF LIENS. § 492 commenced," probably has reference to the lien of the origi- nal contractor only.-- § 492. Same. Lien for materials. In the case of a ma- terial-man, the material is " furnished," and the lien relates back to the time when he has such materials as he has con- tracted to furnish, ready for delivery at the place where he agreed to deliver them ; ^^ and it is not necessary to deliver the materials at the building, in order that he may be consid- ered to have " furnished " them, within the meaning of the statute.^* The lien for materials, thus relating back to the commencement of furnishing them, has priority over a mort- gage subsequently executed.^^ ~ See Barber v. Reynolds, 44 Cal. 519, 533 (1862). Washington. See Huttig Bros. Mfg. Co. v. Denny Hotel Co., 6 Wash. 122, 128, 32 Pac. Rep. 1073. =' Tibbetts v. Moore, 23 Cal. 208, 214. In Bennett v. Beadle, 142 Cal. 239, 243, 75 Pac. Rep. 843, it was said of Tibbetts v. Moore, supra: "Without questioning the correctness of that decision as to the particular matter there involved, it will be observed that the word ' furnished,' there construed, was used in relation to a different subject-matter from that here under discussion [lien upon a vessel], namely, the question of priority of liens, which is now embraced in § 1186 of the Code of Civil Procedure, whereby a material-man's lien is preferred to liens attaching subsequent to tlie time when the materials 'are commenced to be furnished.'" M<»ntnna. McEwen v. Montana P. & P. Co., 90 Pac. Rep. 359. See Clark v. Lindsay, 19 Mont. 1, 47 Pac. Rep. 102; 61 Am. St. Rep. 479. AVaiiliington. Huttig Bros. Mfg. Co. V. Denny Hotel Co., 6 Wash. 122, 130. 32 Pac. Rep. 1073. -' Tibbetts v. Moore, 23 Cal. 208, 214. See § 88, ante. =" Pacific Mut. L. L Co. v. Fisher, 106 Cal. 224, 236, 39 Pac. Rep. 758: Germania B. & L. Assoc, v. Wagner, 61 Cal. 349, 354; Schwartz v. Knight, 74 Cal. 432, 434, 16 Pac. Rep. 235 (although building left uncompleted). See Davies-Henderson L. Co. v. Gottschalk, 81 Cal. 641, 648, 22 Pac. Rep. 860 (whether contract made directly with owner or his contractor); McClain v. Knight, 131 Cal. 132, 143, 61 Pac. Rep. 273, 63 Id. 623. See also Maher v. Shull, 11 Colo. App. 322, 327, 52 Pac. Rep. 1115. See § 495, post. Colo- do. Or subsequent alienations: Mellor v. Valentine, 3 Colo. 255: Keystone M. Co. v. Gallagher, 5 Colo. 512 (1872). Where the ^vork done or inaterinlM furnished In continuou!>i in its nature, the contract must be regarded as an entirety, and the lien attaches for work done and materials furnished after as well as before the pvirchase: Id. As to runnin;:; aeeoiint. Time bejKins to run against mcclianic'a lien ^vlien: 7 Am. & Eng. Ann. Cas. 947. Oregon. Inman v. Henderson. 29 Greg. 116, 45 Pac. Rep. 300; HarrisbTirg L. Co. v. Washburn, 29 Oreg. 150, 170, 44 Pac. Rep. 390; Kendall v. McFarland, 4 Oreg. 293. § 493 mechanics' liexs. 454 § 493. Same. Contractors and subcontractors. Void con- tract. Homestead. In eonneetiun with the subject of rela- tion, Mr. Justice Works, speaking for the court, said : " In some of the earlier cases a distinction was made, in this re- spect, betw^een contractors with the owner and subcon- tractors. As to the former, it was held that their liens attached at the commencement of the work, and as to the latter, that their liens were in the nature of attachments, and attached at the time notice was given to the owner. ^"^ But this distinction does not exist under the present statute, where the original contract is void. In such case the con- tract is, by the terms of the statute, deemed to be the contract of the owner, and the lien must be held to attach as in case of such a direct contract. Any other con- struction would relieve the owner from any liability, under the circumstances of this case. He could get his house completed, declare his homestead, and say to the original contractor, * Your contract is void, and I am not personally liable to you [on the express contract], nor is my property liable to any lien in your favor ' ; and to the material-man he could say, ' After getting the full benefit of your material, and just before you could file your lien under the statute, I filed my declaration of homestead ; and your lien comes too late.' We do not wish to be understood as agreeing to the doctrine declared in the early decision cited, that the lien of a material-man did not attach at the time of furnishing the material, even under the former statute ; ^^ but, conceding it to have been so under the then existing statute, it is clearly not so now, where the contract is void for any of the reasons stated in the statute." ^^ Utah. But when a person, who has a lien against property, for the purpose of inducim? another person to loan money on the same property as security, releases such right, such party, after such person has so loaned the money on the faith of such security, will not be heard to reassert his right of lien as against the person who so parted with his money: Spargo v. Nelson, 10 Utah 274, 37 Pac. Rep. 495. »" Citing Cahoon v. Levy, 6 Cal. 295, 297, 65 Am. Dec. 515. =" Citing Germania Bldg. & L. Assoc, v. Wagner, 61 Cal. 349. 350. ^ Davies-Hendersoh L. Co. v. Gottschalk, 81 Cal. 641, 648, 22 Pac. Rep. 860 (McParland, J., dissenting!). In Barber v. Reynolds, 44 Cal. 519. 533 (1862), Wallace, C. J., deliv- ering the opinion of the court, said: "There being no written con- II 455 PRIORITIES OF LIENS. §§ 494, 495 A declaration of homestead does not now defeat a right to a lien which has already attached, although the claim of lien has not yet been filed. -^ § 494. Same. Parts of day. In conformity with the rules stated' in the sections immediately preceding, the court will take notice of the parts of a day, or the exact time when the instrument was filed for record, thus giving a lien for work commenced two hours before a mortgage was filed for record priority over the mortgage or other encumbrance.^" § 495. Same. General rule. From a consideration of the statute and rules suggested in the sections immediately preceding, the general rule may be stated as follows : The tiact for the construction of the building, and the several liens of the plaintiffs arising under the seventeenth section of the act, these liens did not relate back to the commencement of the work, July 30, 1866; but each lien related to the commencement of the particular labor or the furnishing of the particular materials for which the claim was made in the account filed in the recorder's office. This is the rule of priority which we think the statute contemplated in reference to liens of the character of those with which we are now dealing. We think that the phrase, 'which lien shall relate to the time pf the commencement of the work,' occurring in the seventeenth sec- tion, has reference, not to the commencement of the general construc- tion of the building, but to the commencement of the particular work of [or] furnishing materials in virtue of which a particular person claims a lien. Upon any other construction it must follow that a lien sufficient and affording ample security at the time a particular piece of work was commenced or materials furnished might become practi- cally lost or dissipated by the subsequent recklessness or extrava- gance of tlie proprietor of the building, involving, it might be, liens of such magnitude in aggregate amount as to leave comparatively nothing to satisfy the laborer or material-man, whose lien was perhaps the earliest in point of time." Section 17 of this act expressly provided that when a person shall proceed to construct, repair, or cause to be constructed or repaired, any building, etc., without making a contract, in writing, for such construction, etc., every person who shall perform labor, etc., shall have a lien to the full extent of all labor performed, etc., upon the interest of the person causing tlie same to be constructed or repaired, etc., " which lien shall relate to the time of the commencement of the work." See § 468, ante. =* Davies-Henderson L. Co. v. Gottschalk, 81 Cal. 641, 649, 22 Pac Rep. 860. See Kerr'M Cyc. Civ. Code, § 1241, and note. See also §§ 37, 468, ante. ^ Preston v. Sonora Lodge, 39 Cal. 116, 119 (1868). See note 61 Am. Dec. 700. Fractions of a day considered when: See Kerr's Cye. Code Civ. Proc, § 12, note pars. 9-12. § 495 mechanics' liens. 456 liens of mortgages,^^ deeds of trust,^- judgments,^^ and other encumbrances,^* created subsequently to the time when the " Ah Louis V. Harwood, 140 CaL 500, 505, 74 Pac. Rep. 41; Hamil- ton V. Dellii M. Co., 118 Cal. 148, 152, 50 Pac. Rep. 378; Avery v. Clark, 87 Cal. 613, 627, 25 Pac. Rep. 919, 22 Am. St. Rep. 272; Bewick V. Muir, 83 Cal. 368, 371, 23 Pac. Rep. 389; Harmon v. Ashmead, 68 Cal. 321, 323, 9 Pac. Rep. 183; Crowell v. Gilmore, 13 Cal. 54, 56. MHiere the work done or materials furnished by subclaimants under a void statutory original contract was commenced prior to the date of a mortgage upon the premises, the mortgage is subsequent to the liens: McClain v. Hutton, 131 Cal. 132, 133, 135, 144, 61 Pac. Rep. 273, 63 Id. 182, 622. See §§ 486 et seq., ante. Montana. And the mortgagee, by purchasing under foreclosure of his mortgage, succeeds only to the rights of the mortgager, and is not a bona fide purchaser witliout notice of the mechanics' liens: Western I. W. v. Montana P. & P. Co., 30 Mont. 550, 77 Pac. Rep 413, 417 (under Code Civ. Proc, § 2133). Nevada. Capron v. Strout, 11 Nev. 313. Oregon. A mortgage prior in time takes precedence over the lien of claimants as to the land on which the structure is erected, but it is otherwise as to the building: Cooper Mfg. Co. v. Delahunt, 3'6 Oreg. 402, 408, 60 Pac. Rep. 1; Smith v. Wilkins, 38 Oreg. 583, 585, 64 Pac. Rep. 760. But where, after the right to a mechanic's lien has attached, but before the claim of lien is filed, a prior mortgage is renewed, the renewed mortgage is prior to the lien, the mortgagee being ignorant of the intervening liens or rights to liens: Title G. & T. Co. v. Wrenn, 35 Oreg. 62, 56 Pac. Rep. 271, 76 Am. St. Rep. 454; Capital L. Co. v. Ryan, 34 Oreg. 73, 54 Pac. Rep. 1093. For the mere fact that a former mortgage was released, and a new one taken in place thereof, in Ignorance of the existence of an intervening lien, is, in equity, deemed such a mistake of fact as will entitle the plaintiff to relief, although such lien is a matter of record, and, a fortiori, where the intervening right is merely inchoate, such lien or right not being interfered with: Capital L. Co. v. Ryan, supra. AVashington. As to extra work, see Powell v. Nolan, 27 Wash. 318, 67 Pac. Rep. 712, 719. ^^ See Southern Cal. L. Co. v. Peters, 3 Cal. App. 478, 86 Pac. Rep. 816; Goss v. Helbing, 77 Cal. 190, 191, 19 Pac. Rep. 277. Colorado. Cornell v. Dunbar L. Co., 9 Colo. App. 225, 47 Pac. Rep. 912. But see Seely v. Neill (Colo.), 86 Pac. Rep. 334. Utah. Fields v. Daisy G. M. Co., 25 Utah 76, 69 Pac. Rep. 528. AVliere deed of trust is given o£ eanal or ditch on public lands, which was not constructed, it could not transfer the canal to tlie trustee until it was constructed, and where claimants are employed to construct the same, their liens take priority over such deed of trust: Garland v. Bear Lake & R. W. & Irr. Co., 9 Utah 350, 363, 34 Pac. Rep. 368; affirmed in Bear Lake Irr. Co. v. Garland, 164 U. S. 1, bk. 41 L. ed. 327, 17 Sup. Ct. Rep. 7. 33 Hamilton v. Delhi M. Co., 118 Cal. 148, 152, 50 Pac. Rep. 378. This is the rule, even though the labor is completed and the last of the materials delivered after the judgment is docketed: Barber v. Rey- nolds, 44 Cal. 519, 534. See Flandreau v. Downey, 23 Cal. 354. Colorado. Empire L. & C. Co. v. Engley, 18 Colo. 388, 33 Pac. Rep. 153 (lis pendens). 3* Utah. Sanford v. Kunkel, 85 Pac. Rep. 363, 365, 1012 (under Rev. Stats. 1898, § 1384). 457 PRIORITIES OF LIENS. § 495 lieu attaches, or subsequently to the time to Avhich the lien relates, are subordinate to the liens of claimants for work or materials ;^^ but the liens of mortgages,^** deeds of trust,^^ ^ Priority of mechauics' liens over subsequent Hens: See note 12 L. R. A. 33. Colorado. .Tritch v. Norton, 10 Colo. 337, 15 Pac. Rep. 680 (1881). See Williams v. Uncompahgre C. Co., 13 Colo. 469, 22 Pac. Rep. 806; and Jarvis v. State Bank, 22 Colo. 309, 45 Pac. Rep. 505, 55 Am. St. Rep. 129. Wasliington. Baker v. Sinclaire, 22 Wash. 462, 61 Pac. Rep. 170, and cases cited in the opinion (under Ballinger's Ann. Codes and Stats., § 5903). ^« Middleton v. Arastraville M. Co., 146 Cal. 219, 225, 79 Pac. Rep. 889; McClain v. Hutton, 131 Cal. 132, 61 Pac. Rep. 273, 63 Id. 182, 622; Williams v. Santa Clara M. Assoc, 66 Cal. 193, 199, 5 Pac. Rep. 85, 4 W'est Coast Rep. 616; Kuschel v. Hunter (Cal.), 50 Pac. Rep. 397; Warren v. Hopkins (Cal., Sept. 14, 1897), 110 Cal. 506, 42 Pac. Rep. 986 (grading-, under Code Civ. Proc, §1192); Tapia v. Demartini, 77 Cal. 383, 386, 19 Pac. Rep. 641, 3 1 Am. St. Rep. 288; Preston v. Sonora Lodge, 39 Cal. 116, 117 (1868); Ferguson v. Miller, 6 Cal. 403, 405 (1850); Crowell V. Gilmore, 18 Cal. 370, 372 (1856). See §§ 486 et seq., ante. Mechanics' liens, wlien superior to earlier mortgages: See note 14 L. R. A. 305. Fact tliat tlie niortgagee was the secretary of a mining corpora- tion during the time of the performance of the labor, subsequent to the record of the mortgage, and that such labor was performed with his knowledge, or even at his request, does not estop the mortgagee, nor have the effect of postponing the lien of his mortgage to laborers' liens: Middleton v. Arastraville M. Co., 146 Cal. 219, 225, 79 Pac. Rep. 889. Colorado. Folsom v. Cragen, 11 Colo. 205, 17 Pac. Rep. 515 (1883). The rule that a nieclianic's lien attaches to a huflding in preference to a prior mortgage on the land does not apply where the material- man has notice that the mortgage expressly mentions the structure, and the funds for which it was given were used in the construction thereof: Joralmon v. McPhee, 31 Colo. 26, 34, 71 Pac. Rep. 419, 422. Idaho. Pacific States S. L. & Bldg. Co. v. Dubois, 11 Idaho 319, 83 Pac. Rep. 513. See Rourke v. Bergevin, 4 Idaho 742, 44 Pac. Rep. 645 (chattel mortgage: lien on crops). Montana. See Davis v. Alvord, 94 U. S. 545, bk. 24 L. ed. 283. Nevada. Capron v. Strout, ]1 Nev. 304. Utah, See Garland v. Bear Lake & R. W^. & Irr. Co., 9 Utah 350, 362, 34 Pac. Rep. 368, s. c. 164 U. S. 1, bk. 41 L. ed. 327, 17 Sup. Ct! Rep. 7. Washington. Huttig Bros. Mfg. Co. v. Denny Hotel Co., 6 Wash. 122, 129, 130, 32 Pac. Rep. 1073, in which it was also held that the fact that a mortgage given in view of a contemplated building con- tained a provision allowing the mortgagee to pay off any liens that iright be created against the property from the amount of the mort- gage loan does not estop the mortgagee from disputing tlie claims of the lienors, and no liability for such liens was assumed by the mortgagee. See Fitch v. Applegate, 24 Wash. 25, 31, 64 Pac. Rep. 147 (under Laws 1897, p. 55, § 1). •■" Williams v. Santa Clara M. Assoc, 66 Cal. 193. 200. 5 Pac. Rep. 85, 4 West Coast Rep. 616; Valley L. Co. v. Wright, 2 Cal. App. 288, 29oi 84 Pac. Rep. 58, even tliough the advances were actually made after § 496 mechanics' liexs. 458 and encumbrances -which -were recorded at the time " the building, improvement, or structure was commenced, work done, or the materials were commenced to be furnished," dating from the time the lien " attached," or to which it " relates," or of which the lien-holder had notice, ^^ take pre- cedence over such liens for labor or materials. ^^ § 496. Same. Mortgage for purchase price. The stat- ute ^** providing that " a mortgage given for the price of real property, at the time of its conveyance, has priority over all other liens created against the purchaser, subject to the oper- ation of the recording laws," does not generally give to the mortgagee priority for the lien of his mortgage over me- chanics' liens created by the vendee of the premises prior to the execution of the deed therefor. The latter liens have the recording- of the deed of trust and after the labor and materials were commenced to be furnished, or the lien attached: Id. See Weber V. McCleverty, 149 Cal. 316, 322, 323, 86 Pac. Rep. 706; Kuschel v. Hunter (Cal., Sept. 14, 1897), 50 Pac. Rep. 397. Oregon. But see Harrisburg L. Co. v. Washburn, 29 Oreg. 150, 44 Pac. Rep. 390; and see notes §§ 459 et seq., ante. Utah. See Garland v. Bear Lake & R. W. & Irr. Co., 9 Utah 350, 362, 34 Pac. Rep. 368. 3s Root V. Bryant, 57 Cal. 48, 49, 1 Pac. Coast L. J. 43; Soule v. Dawes, 7 Cal. 575, 577. See Montrose v. Conner, 8 Cal. 344, 347. Oregon. With reference to notice served on railroad company under Laws 1889, p. 75, see Coleman v. Oregonian R. Co., 25 Oreg. 286, 35 Pac. Rep. 656. Washington. See Potvin v. Denny Hotel Co., 37 Wash. 323, 79 Pac. Rep. 940. ^ Mortgage lien attaches ^vhen instrument executed: Root v. Bry- ant, supra; Bank of Ukiah v. Petaluma Savings Bank, 100 Cal. 590, 35 Pac. Rep. 170. See Crowell v. Gilmore, 13 Cal. 56; Union 'W. Co. v. Murphy's Flat F. Co., 22 Cal. 620, 631; McCrea v. Craig, 23 Cal. 522, 525. Alabama. W^elch v. Porter, 63 Ala. 232. Federal. In re Coulter, 2 Sawy. C. C. 42, 49, 6 Fed. Cas., p. 637. Montana. See Johnson v. Puritan M. Co., 19 Mont. 30, 47 Pac. Rep. 337. See Missoula M. Co. v. O'Donnell, 24 Mont. 65, 60 Pac. Rep. 991. Nevada. Capron v. Strout, 11 Nev. 304, 313. North Dakota. Haxtun S. H. Co. v. Gordon, 2 N. D. 246, 251, 50 N. W. Rep. 708, 33 Am. St. Rep. 779. Utah. See Morrison v. Carey-Lombard Co., 9 Utah 70, 33 Pac. Rep. 238 (1890); Teahen v. Nelson, 6 Utah 363, 23 Pac. Rep. 764 (before 1890). AVashington. So of a bond to give a deed, which in equity creates the same relation as that existing between a mortgager and a mort- gagee: St. Paul & T. L. Co. V. Bolton,. 5 Wash. 763. 766, 32 Pac. Rep. 787. See Baker v. Sinclaire, 22 Wash. 462, 61 Pac. Rep. 170. " Kerr's Cyc. Civ. Code, § 2898. 459 PRIORITIES OF LIENS § 497 priority over the former, under section eleven hundred and eighty-six.*^ § 497. Same. Mortgage for future advances. After a mortgage for future advances, whetlier in money or ma- terials, is recorded, it takes precedence, as against subse- quent purchasers or encumbrancers and lien claimants, but the lien of the mortgagee cannot be enforced as against sub- sequent encumbrances, of which the mortgagee has actual notice, for advancements made after such notice ; constructive notice, by the recording of such encumbrances, is not enough. The mortgage may be valid even if it does not disclose upon its face that it is given in part for future advances, if the amount of liability to be incurred under it is expressly lim- ited, and the agreement under which the advances are to be made need not be in writing. If the mortgage discloses upon its face that it is to stand as security for future advance- ments, the amount of the advances to be made need not be set out, and if the mortgage is sufficiently definite to put subsequent encumbrancers on inquiry, they must ascertain the extent of the mortgagee's lien or suffer the consequences.*^ " Kerr's Cye. Code Civ. Proc., § 1186; Avery v. Clark, 87 Cal. 619, 627, 25 Pac. Rep. 919, 22 Am. St. Rep. 272. Contra: Guy v. Carriere, 5 Cal. 511, 515 (1850). But see McClaln v. Hutton. 131 Cal. 132, 61 Pac. Rep. 273. See note 51 Am. St. Rep. 932. Colorado. See Maher v. Shull, 11 Colo. App. 322, 327, 52 Pac. Rep. 1115. Oreg^on. But a mortgage for the purchase price, executed con- currently with the deed, is not postponed to liens for materials fur- nished prior thereto, as to the land, but is so postponed as to the building: Smith v. Wilkins, 38 Greg. 583, 585, 64 Pac. Rep. 760. ** Tapia V. Demartini, 77 Cal. 383, 387, 19 Pac. Rep. 641, 11 Am. St. Rep. 288. Colorado. Mortgage given for future advances to erect a building, which was duly recorded, of wliich claimants had notice, takes prece- dence of mechanics' liens subsequently attaching, as to advances actually made for the building, especially where the claimants received part payment from the mortgagee, notwithstanding Mills's Ann. Stats., §2884: Joralmon v. McPhee, 31 Colo. 26. 71 Pac. Rep. 419, 421. Washington. Stetson-Post M. Co. v. Brown, 21 Wash. 619, 627, 59 Pac. Rep. 507, 75 Am. St. Rep. 862; Home S. & L. Assoc, v. Burton, 20 Wash. 688, 56 Pac. Rep. 940, citing the California case given above in this note. §§498-500 mechanics' liens. 460 § 498. Same. What constitutes " further advances." A payment made by a mortgagee on behalf of the mortgager constitutes an advancement contemplated by a clause of the mortgage securing such future advancements by the mort- gagee, only when the payment involves a contract relation, express or implied, and where no such relation is shown, a payment, under the terms of the mortgage, made without the mortgager's knowledge or consent, is not such a further idvanee.*^ § 499. Same. Reformation and alteration of instruments. Where the parties to a lease have failed to express their real intentions, it may be reformed as between themselves, but not so as to prejudice the rights of the holders of mechanics' liens acquired without notice, in good faith and for value. The written lease supersedes all oral negotiations or stipula- tions concerning the removal of improvements, which pre- ceded or accompanied the execution of the instrument, when it is not so reformed, at least, in the action to foreclose such liens.** But where the claimant enters into a contract with the owner, and a third party takes a mortgage upon the property, and parts with value, relying upon the terms of that contract, the claimant and owner cannot change the terms of the contract to the detriment of the mortgagee, and the lien, so far as it is extended by the change of the agree- ment, will not take priority over the mortgage ; *^ yet, gen- erally speaking, where no intervening rights are affected, no one can complain of such change by the parties to the con- tract." § 500. Same. When lien claimants may attack prior en- cumbrances. Where the mortgage is prior to the liens, « Provident M. B. L. Assoc, v. Shaffer, 2 Gal. App. 216, 83 Pac. Rep. 274. Advances must be properly made: See 4 Am. & Eng. Ann. Cas. 615. " West Coast L. Co. v. Apfield, 86 Cal. 335, 340, 24 Pac. Rep. 993. Montana. As to reformation of mortgage, error in description, see Grand Opera House Co. v. Maguire, 14 Mont. 558, 37 Pac. Rep. 607. *' Soule V. Dawes, 7. Cal. 575, 576. <" Gamble v. Voll, 15 Cal. 508, 510. See "Change of Contract," §§ 326 et seq., ante. 461 PRIORITIES OP LIENS. § 5C1 claimants can attack it only upon the ground that it was made to hinder, delay, or defraud creditors ; but the mere fact that it was without consideration is not equivalent to this, and fraud must be found l)y the court, in order that the attack may be successful.'*^ § 501. Same. Garnishment by creditor. Whether or not a garnishment served upon the owner at the instance of a creditor of the original contractor would take precedence of the liens of claimants for labor or materials, does not seem to have been clearly decided in California. Under the pres- ent statute the lien upon the fund in the hands of the owner, created by service of notice upon him, being independent of the lien upon the property, resembles, in some respects, the garnishment proceeding under the act of 1855."*^ « Bewick v. Muir. 83 Cal. 308, 371. 23 Pac. Rep. 389, 390. As to general subject, .see note 31 Am. St. Rep. 665. ■** As to priority of lien upon the fund, created by .service of notice on tlie owner, see French v. Powell. 13.5 Cal. 636. 640, 68 Pac. Rep. 92. Tlie lien of a subcontractor tile«I and notice given to tlie owner of the building- within thirty days after the completion of the work, under the act of 1855, attaclied from the time the work was com- menced, and took precedence over a garnishment served on the owner against the original contractor after the work was commenced and before the filing and serving of the notice of lien. Wliether the pay- ment by the owner to the original contractor before the notice of tlie lien of the subcontractor would defeat the lien pro tanto, qusere: Tuttle v. Montford, 7 Cal. 358, 360. But — In Gaboon v. Levy, 6 Cal. 296, 297, 65 Am. Dec. 515 (1850), it was held that a garnishment served on the owner, in a suit against the original contractor, after the commencement of the building and before notice served, prevailed over the lien of the subcontractor: See Board of Education v. Blake (Cal., Dec. 3, 1894), 38 Pac. Rep. 536. See also " General Creditors," §§ 601 et seq., post, and " Notice," §§ 547 et seq., post. Colorado. No attachment or garnishment of any money due a con- tractor from the owner is valid as against the lien of the subcon- tractor: Schradsky v. Dunklee, 9 Colo. App. 394, 48 Pac. Rep. 666 (under statute); but if the lien is not perfected, the garnishment holds good: Id. New Mexico. Where a lis pendens was filed in an attachment case, it was held that the attachment lien took precedence over a lien for labor subsequently performed: Bell v. Gaylord, 6 N. M. 227, 27 Pac. Rep. 494. Oregon. Held tliat the garnishment of the owner by a general creditor of the contractor takes priority over subsequent notice to the owner served by a subclaimant, under Laws 1889, p. 75, relating to work for railroad companies, providing for liability of owner only to amount due contractor at the time of service of notice: Coleman v. Oregonian R. Co., 25 Oreg. 286, 35 Pac. Rep. 656. §§ 502, 503 mechanics' liens. 462 § 502. Same. Lien on two or more buildings. Statutory provision. The statute *^ provides : " In every case in which one claim is filed against two or more buildings, mining claims, or other improvements OAvned by the same person, the person filing such claim must, at the same time, designate the amount due to him on each of such buildings, mining claims, or other improvements; otherwise the lien of such claim is postponed to other liens. The lien of such claimant does not extend beyond the amount designated, as against other creditors having liens, by judgment, mortgage, or otherwise, upon either of such buildings or other improve- ments, or upon the land upon which the same are situated." ^° The cases to which this provision applies have been already considered.^^ § 503. Same. When provision as to two or more build- ings applicable. In enacting section eleven hundred and eightj'-eight,^- the legislature had in mind those cases where it was possible to designate the amount due on each of sev- eral buildings, and did not intend that the section should apply to any other class of cases.^^ If materials are fur- *» Kerr's Cye. Code Civ. Proc., § 1188. ^0 Dickenson v. Bolyer, 55 Cal. 285. 286; Booth v. Pendola, 88 Cal. 36, 43, 23 Pac. Rep. •00, 25 Id. 1101; Hamilton v. Dellii M. Co., 118 Cal. 148, 151, 50 Pac. Rep. 378; Tredinnick v. Red Cloud M. Co., 72 Cal. 78, 84, 13 Pac. Rep. 152 (judgment; consolidated mining claim). See Wil- liams V. Mountaineer G. M. Co., 102 Cal. 134, 141, 34 Pac. Rep. 702, 36 Id. 388; Lothian v. Wood, 55 Cal. 159, 163. See §504, post, and "Claim," §§378, 406, ante. Idaho. Postponing lien: Phillips v. Salmon R. M. & D. Co., 9 Idaho 149. 72 Pac. Rep. 886. New Mexico. See Post v. Fleming, 10 N. M. 476, 62 Pac. Rep. 1087. Oregon. See Smith v. Wilcox, 44 Oreg. 323, 75 Pac. Rep 710, 74 Id. 708. Utah. The statement required by Rev. Stats. 1898, § 1387, is for the purpose of enabling the court to protect the interests of lien claimants among themselves: Eccles L. Co. v. Martin, 87 Pac. Rep. 713. See Garner v. Van Patten, 20 Utah 342, 58 Pac. Rep. 684. Washington. Seattle L. Co. v. Sweeney, 33 Wash. 691, 74 Pac. Rep. 1001. See Powell v. Nolan, 27 Wash. 318, 67 Pac. Rep. 712, 720, 68 Id. 389. =' See §§ 366, 378. 406, and 448. ante. 52 Kerr'.«( Cyc. Code Civ. Proc., § 1188. 53 Southern Cal. L. Co. v. Peters. 3 Cal. App. 478, 86 Pac. Rep. 816. See §§ 378. 406, 448, and 366, ante. Distribution of fund, order of priority among claimants: See Hughes Bros. v. Hoover, 3 Cal. App. 145, 84 Pac. Rep. 681, 683. 463 PRIORITIES OF LIENS. § 504 nished upon a single order, and all under one contract, by the owner's material-man, to be used in all of a number of buildings, Avithout anything to show how much of it Avas to be used in each building, it is impossible for the claimant to designate in the claim of lien the amount due to him on each of such buildings, under the statutory provision above men- tioned, as there is nothing due him on each of the buildings, his claim existing against the buildings jointly.^'' § 504. Priorities inter sese. ■ ' Statutory provision. Unless the statute provides for priorities among liens for labor or material, the claimants stand upon an equal footing.-^" But section eleven hundred and ninety-four ^' provides : " In every case in which different liens are asserted against any property, the court in the judgment must declare the rank Colorado. Sprague I. Co. v. Mouat L. & I. Co., 14 Colo. App. 107, 60 Pac. Rep. 179. New Mexico. See Boyle v. Mountain K. M. Co., 9 N. M. 237, 50 Pac. Rep. 347. Utah. See Eccles L. Co. v. Martin, 87 Pac. Rep. 713, 718 (under Rev. Stats. 18j8, § 1387). ^* Southern Cal. L. Co. v. Peters, 3 Cal. App., 478, 86 Pac. Rep. 816, the court saying, " Assuming, without deciding the question, that a trust deed constitutes a lien upon the property within the provisions of said section, we are still of tlie opinion that plaintiff's claim of lien does not come within the section." "= As to claim on tv\o or more buildings, see §§ 366, 378, 406, 448, and 502, ante. ^ Moxley v. Shepard, 3 CeA. 64, 65 (1850). See In re Hoyt, 3 Biss. C. C. 436, 441, 12 Fed. Cas., p. 758. See also note 79 Am. Dec. 277. And, under such circumstances, this is the rule, even if some com- menced work after the others: Crowell v. Gilmore, 18 Cal. 370. 372 (1856), in which it was lield that the statute did not give preference to lien-holders inter sese; there being no original contract, tlie owner's laborer performing labor before the execution of a mortgage would take precedence over the same, and those employed subsequently theieto would be postponed to the mortgage. See §§ 486 et seq., ante. In Snell v. Payne, 115 Cal. 218, 46 Pac. Rep. 1069, it is said that where an overstatement of the amount due on a claim of lien for materials furnished for the erection of buildings is upon its face a clerical error, it will not invalidate the lien, and, at most, can only postpone it to the other liens; but the court cites no authority for the last point, which seems to be dictum. See " Notice," §§ 547 et seq., post. Montana. Under act of 1865, priority was given in order of filing account and claim: Mason v. Germaine, 1 Mont. 267. Oregon. W'illamette Falls Co. v. Riley, 1 Greg. 183 " Kerr's Cyc. Code Civ. Proc, § 1194. § 505 mechanics' liens. 464 of each lien, or class of liens, which shall be in the following order, viz. : 1. All persons performing manual labor in, on, or about the same; 2. Persons furnishing materials; 3. Subcon- tractors; 4. Original contractors. And the proceeds of the sale of the property must be applied to each lien or class of liens in the order of its rank." ^^ § 505. Same. Nature of provision. It will be observed that the provision set forth in the last preceding section ranks liens according to their quality, and not according to their order in point of time, thus differing in principle from section eleven hundred and eighty-six,^'* discussed in preced- ing sections.*^'* It may sometimes happen that the land is sub- ject to subliens under separate original contracts, and it seems that the court is to rank subclaimants under the valid original contract under which they claim respectively. Thus — Where the valid original contract is abandoned,"^ a subse- quent valid original contract between the owner and another original contractor for tlie completion of the work is as dis- connected from the first original contract as if it were for the construction of a different building ; the court saying, " It would be contrarj^ 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 con- ^' Where there is an original contract, the subordination of the lien of the orig-inal contractor to those of his subclaimants is carefully preserved by other provisions of the code: See Kerr's Cye. Code Civ. Proc, §§ 1183, 1184, and notes. Idaho. See Idaho M. & M. Co. v. Davis, 123 Fed. Rep. 396, 397, 59 C. C. A. 200. L^tah. But see Carey-Lombard L. Co. v. Partridge, 10 Utah 322, 37 Pac. Rep. 572 (1890), which seems to give priority to subcontractors in accordance with the time when they commenced to furnish mate- rials or do work (dictum); and see Morrison v. Carey-Lombard Co., 9 Utah 70, 33 Pac. Rep. 238 (1890), which holds that priority is given a subcontractor by filing the notice of intention to furnish materials over any other subcontractor who may commence to do work or to furnish materials between the date of his making the contract and the date of his entering upon the performance of it. 5» Kerr's Cyc. Code Civ. Proc, § 1186. ^ See §§ 487 et seq., ante. •1 See " Abandonment," §§ 358 et seq., ante. 465 PRIORITIES OF LIENS. §§ 500,507 tract price of their contractor had been absorbed in the satis- faction of claims entirely disconnected with the contract under which they had furnished this labor and materials." °^ § 506. Same. Effect of constitution on statutory pro- vision. The constitution of California places mechanics, ma- terial-men, artisans, and laborers of every class, who bestow labor or furnish material upon or for a building, on an equal footing as to priority ; and such equality cannot be impaired or destroyed by the legislature ; and section eleven hundred and ninety-four,^^ in so far as it attempts to destroy the equality of such, constitutional mandatory liens, is uncon- stitutional, but so much of the provision as relates to the preference of laborers and material-men to contractors and subcontractors, and subcontractors to contractors, does not violate the constitution."* § 507. Same. Insufficient proceeds. Prorating. Subject to the rules stated in the sections immediately preceding, ®° and in subordination to the constitutional limitations as to the constitutional mandatory liens, which have been fully developed in the foremost portion of this work,"" where there are insufficient proceeds to satisfy all claims in the same rank, they should be prorated among those in the same rank."' «= Johnson v. La Grave, 102 Cal. 324, 326, 36 Pac. Rep. 651. See Green v. Clifford, 94 Cal. 49, 51, 29 Pac. Rep. 331. Quare: What is the rank of an owner's laborer or material-man whose claim is filed before an original contract is entered into ? See Barber v. Reynolds. 44 Cal. 519, 533. See also §§ 486 et seci., ante. Idaho. But see Pacific States S. L. & B. Co. v. Dubois, 11 Idaho 319, 83 Pac. Rep. 513. «' Kerr's Cyc. Code Civ. Proc., § 1194. «^ Miltimore v. Nofziger Bros. L. Co. (Cal. Sup., April 2, 1907), 90 Pac. Rep. 114; Stimson M. Co. v. Nolan (Cal. App., June 19, 1907), 91 Pac. Rep. 262. See §§ 28, 42, ante. «^ See §§ 504 et seq., ante. '« See § 42, ante. " See Moxley v. Shepard, 3 Cal. 64. 65 (1850). Colorado. Action to marshal lien: See San Juan H. Co. v. Car- rother.s, 7 Colo. App. 413, 43 Pac. Rep. 1053. Mech. Liens — 30 §508 MECHANICS LIENS. 466 CHAPTER XXVI. OWNER, EMPLOYER, OR PERSON CAUSING IMPROVEMENT TO BE MADE. §508. §509. §510. §511. §512. §513. §514. §515. § 516. §517. §518. §519. §520. §521. § 522. §523. §524. §525. §526. §527. §528. §529. §530. §531. §532. §533. §534. §535. §536. §537. §538. §539. §540. § 541. §542. Owner and employer, or purchaser. Distinction. Owner and reputed owner. General rights of owner and employer. Scope of discussion. Same. Rights against contractor. Statutory provision. Same. General rule as to non-payment of instalments. Same. Right to cancel contract. Same. Right of owner to retain fund. Same. Offsets and counterclaims. Generally. Same. Offsets and counterclaims against different payments. Same. Damages for delay in performance. Same. Completion of contract by owner. Same. Right to complete construction upon abandonment. Same. Right to materials upon abandonment. Same. Rights against others. Same. Payments. General obligations of owner and employer. Scope of dis- cussion. Same. Duty to file statutory original contract. Same. Duty to withhold payments. Same. Liability of owner on breach or abandonment. Statu- tory provision. Same. Application of statutory provision. Void contract abandoned. Non-statutory original contract. Destruction of building. Liability of fee for improvements by trespasser. Application of payments by subclaimants. Payment of orders of contractor. Splitting demands. Orders on owner's mortgagee. Destruction of build- Same. Same. Same. Same. Same. Same. Same, ing, Same. Same. Same. Same. Same. Same. Same. Voluntary payment of contractor's debts. Guaranty not a prohibited payment. Owner as stakeholder. Liability for costs and interest. Interpleader. Personal liability. Liability of owner or employer under valid contract. Payment to subclaimants. Valid contract. Last pay- ment. Same. Liability of owner under void contract. H 467 IMPROVEMENT CAUSED BY WHOM. § 508 § 543. Same. Void contract. Penal provision. § 544. Same. Statute measure of liability under void contract. § 545. Same. Personal liability to subclaimants under void con- tract. § 546. Same. False representations by owner as to completion of building. § 508. Owner ^ and employer, or purchaser. Distinction. The distinction must always be observed between the " owner " of the property, and the " emploj^er " of the con- tractor or claimant, or purchaser of the materials ; for the two latter, or the person who " caused the building to be erected," may not be the owner.- In the discussion in this and the following chapters, the word " owner " may be generally taken to include the " person who caused the improvement to be made," unless otherwise shown by the context. The " owner " mentioned in the statute ^ refers to the one holding the legal title ; and a mere vendee under a contract of sale is not the " owner." * ' Infant and guardian as "owner": See "Contract," §199, ante. See also §§ 203, 204, 236, ante. Utah. Death of owner; presentation of claim to executrix, sub- contractors' material-man: Eccles L. Co. v. Martin, 87 Pac. Rep. 713, 715. 2 See Corbett v. Chambers, 109 Cal. 178, 182, 41 Pac. Rep. 873; Mar- chant V. Hayes, 120 Cal. 137, 139, 49 Pac. Rep. 840. See " Due Process of Law," §§ 32 et seq., ante. 3 Kerr's Cyc. Code Civ. Proc, § 1183. * Hinckley v. Field's B. & C. Co., 91 Cal. 136, 139, 27 Pac. Rep. 594 (decided before amendment of 1903). See " Orig-inal Contractor," §§ 45 et seq., ante. Colorado. Tlie grantee in a deed placed in escrow is the "owner": Chicago L. Co. v. Dillon, 13 Colo. App. 196, 56 Pac. Rep. 989. Worlv niii.st be done and in:iterial t'lirnislied by contract witli owner, and the claimant must ascertain for himself whether the other party to the contract has or has not an interest in the land. This has been clearly decided by the Colorado supreme court in Rico R. & M. Co. v. Musgrave, 14 Colo. 79, 23 Pac. Rep. 458, 459. The party through whose contract the claimant derives his right to file a lien must have an interest in the land, or a claim to the land. Such is the statutory language. The grantor's lien is certainlj' not a claim to the land or an interest in it, nor has it ever been so held. It has been directly decided otherwise by the supreme court: Fallon v. Worthington, 13 Colo. 559, 22 Pac. Rep. 960, 6 L. R. A. 708. That was a well-considered case, and is a lucid and accurate statement of the law by Commis- sioner Pattison. Therein it was held that such a lien was but a chose in action. It excludes any idea of ownership. It was further held that this lien, whether it arose from a contract, or was implied by the law from equitable considerations and circumstances, conferred no right to the property on the holder. As it was said, quoting from another § 509 mechanics' liens. 468 § 509. Owner and reputed owner. The code ' now makes the distinction between the " owner " and the " reputed owner." The intention of the legislature seems to be, that, in reference to actual contractual relations between the " reputed owner " and the claimant, such " reputed owner " should be bound according to the rules of the common law and by the statutory liability imposed upon his interest in the property, and upon him personally, by the service of a notice upon him of the claims of subclaimants, in the nature of a garnishment, under section eleven hundred and eighty-four,® thus creating a lien upon the fund, independently of the lien upon the property, and that, so far as such contract affects the interest of the real owner in the land, such interest should only be affected upon the principle of estoppel, statutory or equitable/ case, "It is neither jus ad rem nor jus in re." This being- true, and this being- its definition, it cannot be legitimately contended the g-rantor's lien -was an interest in or a claim to the property. It -was simply a naked, equitable right, -which might' be enforced in equity, and reinvest the grantor with the title which had passed: Griflfin v. Seymour. 15 Colo. App. 487. 63 Pac. Rep. S09. Before the amendment of tbe meehanic's-lien law of 18S3, which only authorized a lien under contract of the owner, persons having a vendor's lien on the property, although in possession thereof, are not the owners of the property within the meaning of the statute, and such contract made with thei-n cannot form the basis of the lien: Griffin v. Seymour, 15 Colo. App. 487, 63 Pac. Rep. 809. A contract to perform labor upon a mine, upon the completion of which the laborer was to receive an undivided interest in the prop- erty, does not constitute him the owner or agent of the owner, within 3 Mills's Ann. Stats., 1st ed., § 2867: Maher v. ShuU, 11 Colo. App. 322, 327, 52 Pac. Rep. 1115. Interest of owner not liable under contract with lessee, under 3 Mills's Ann. Stats., 1st ed., §2873: Morrell H. Co. v. Princess G. M. Co., 16 Colo. App. 54, 63 Pac. Rep. 807. Owner leasing mine in small blocks, under Session Laws 1895, p. 202: See Wilkins v. Abell, 26 Colo. 462, 58 Pac. Rep. 612. Montana. Section 2140, Code Civ. Proc, points out the person whose interest is to be charged with the lien, and is the proper person to be named in the claim: Missoula M. Co. v. O'Donnell, 24 Mont. 65, 60 Pac. Rep. 594, 991. = Kerr's Cyc. Code Civ. Proc, §§ 1183, 1184, as amended in 1887, in- serting ti.e word " reputed " before " owner.'' « Kerr's Cyc. Code Civ. Proc, § 1184. ' See "Constitutional Aspects," §§28 et seq., ante; "Estoppel," §§ 469 et seq., ante; also "Notice," §§ 547 et seq., post. The expression " reputed owner " seems to be used synonymously with the expression " the person who contracted with the contractor," in § 1184, Kerr's Cyc. Code Civ. Proc., and with the expressions " em- ployer " and " person who caused " the building to be constructed, in §§ 1185 and 1187, Kerr's Cyc. Code Civ. Proc. 469 IMPROVEMEXT CAUSED BY WHOM. §§ 510, 511 § 510. General rights of owner and employer. Scope of discussion. The general rights of the owner or employer, measured by the correlative duties owing to him by claim- ants, have already been discussed in several places.® It will therefore be unnecessary' to discuss in detail what has else- where been developed in full. General statements, only, as to such matters may consequently be looked for in this chapter. § 511. Same. Rights against contractor. Statutory pro- vision. Where liens are filed, and actions commenced to foreclose the same, the statute provides that " the owner may withhold from the contractor the amount of money for which [such] lien is filed; and in case of judgment against the owner or his property, upon the lien, the said owner shall be entitled to deduct from any amount clue or to become due by him to the contractor, the amount of such judgment and costs; and if the amount of said judgment and costs shall exceed the amount due by him to the con- tractor, or if the owner shall have settled with the con- tractor in full, he shall be entitled to recover back from the contractor any amount so paid by him, the said owner, in excess of the contract price, and for which the contractor was originally the party liable." ^ * See "Obligations of Original Contractor," §§64 et seq., ante: "Of Subcontractors," §76, ante; "Of Material-man," §§102 et seq., ante; "Of Laborers," §§117 et seq., a- ' e. See also "Valid Contract," §§315 et seq., ante; "Void Contract," §§319 et seq., ante; "Extent of Lien," §§459 et seq., ante; "Completion of Contract," §§334 et seq., ante; "Estoppel," §§469 et seq., ante. 9 Kerr's Cye. Code Civ. Proc, § 1193. In Boas v. Mjiloney, 138 Cal. 105, 107, 70 Pac. Rep. 1004, the court stated (obiter) that the owner could hold the contractor liable for liens filed against the owner's property in excess of the contract price, where the contract is void. A material-man, giving notice that claims for material furnished for the construction of a building after the delivery of an order for payment due the contractor in accord- ance with the terms of the contract, and after the same has been assigned to a bona fide purchaser for value, cannot enforce his claim against the owner of the building to the extent of such order: Long Beach S. Dist. v. Lutge, 129 Cal. 409, 62 Pac. Rep. 36, explaining New- port W. & L. Co. V. Drew, 125 Cal. 585, 58 Pac. Rep. 187. Montana. A judgment in favor of a subcontractor in a suit by liim against the principal contractor is not res judicata as to the owner: See Wagner v. St. Peter's Hospital, 32 Mont. 206. 79 Pac. Rep. 1054; Duignan v. Montana Club, 16 Mont. 189, 40 Pac. Rep. 294 (1887). §§ 512-514 mechanics' liexs. 470 § 512. Same. General rule as to non-pajmient of instal- ments. In accordance with the statutory provisions set forth in the last preceding section, if any lien exists upon the property at the time when an instalment, under the terms of a valid statutory original contract, would otherwise become due, the existence of such lien is sufficient excuse for non- payment of such instalment.^" § 513. Same. Right to cancel contract. In those cases where the contract is void for failure to comply with the statute, the owner cannot maintain an action, under certain circumstances, to cancel the contract, nor, if valid, can he do so where he does not offer to do equity, by reimbursing the contractor who has incurred expense in placing building material on the ground and in commencing work and opera- tions under the contract." § 514. Same. Right of ovi^ner to retain fund. Where the promise of the contractor to protect the buildings from liens, and the promise of the owner to pay for the work done thereon, are mutual and dependent, the owner is authorized to retain the money due the contractor, to meet the liens filed against the property.^^ Oregon. Right to require production of receipted bills before making- final payment: Hughes v. Lansing, 34 Oreg, 118, 55 Pac. Rep. 95, 97, 75 Am. St. Rep. 574. See " Obligations of Original Contractor," §§ 64 et seq., ante. " W'yman v. Hooker, 2 Cal. App. 36, 40, 83 Pac. Rep. 79. " Sullivan v. California R. Co., 142 Cal. 201, 204, 75 Pac. Rep. 767. " Ernst V. Cummings, 55 Cal. 179, 184. See "Construction," §§ 216 et seq., ante. Utah. The owner inay retain sufficient to cover subclaimants' liens and pay the same; but in no other respect relating to the subcontract price is the owner concerned: Sierra Nevada L. Co. v. W'hitmore, 24 Utah 130, 66 Pac. Rep. 779, 781. Washington. W^here the original contract obligates the contractor to supply all materials and labor, and a bond is given to secure the performance of the conditions of the contract, the owner is entitled to maintain an action on the bond without first paying mechanics' liens or suffering judgment therefor to be taken. The owner is not obliged to delay action on such bond, but may treat the contractor's failure to keep the property free from encumbrances as a breach of the contract. The owner, however, is not obliged to do so, but may wait until the lien has befen adjudged to be a charge on her property, and thus escape the burden of proving the validity of such liens and the amount of the indebtedness: Friend v. Ralston, 35 Wash. 422, 77 Pac. Rep. 794, 797. 471 IMPROVEMENT CAUSED BY WHOM. § 515 § 515. Same. Offsets and counterclaims. Generally. The owner may take an assignment of the claims of subclaimants after the claims are tiled, and offset them against the con- tractor.^^ If a contract provides that the contractor, after the acceptance of the work contracted for, shall cancel and release the property from all claims that may have accrued in carrying out the work, a lien on the property, paid by the owner for materials put into the building, including attor- neys' fees and all expenses connected with it, may be allowed as a counterclaim, and deducted from the amount otherwise due the contractor, under section eleven hundred end eighty-three of the Code of Civil Procedure ; and that is all that the owner has a right to demand.'^* In case of a valid statutory original contract, while it marks the limit of the owner's liability, and the payment of the final twenty-five per cent before the thirty-five days after the completion of the contract, under section eleven hundred and eighty-four,^^ may be void,^*^ and the employer's interest in the property may be liable for the same ; yet if the employer has any " lawful credits," under section twelve hundred,^'^ or otherwise, it was at first held that he is entitled to the same, to be deducted from said twentj^-five per centum. ^^ Completion payment. If the owner is obliged to furnish material and labor to complete a contract abandoned by the contractor, or if material of cheaper value is substituted in the building, the owner may claim an allowance for any of these matters, to be deducted from the payment due upon completion, if such allowance were contemplated by the terms of the valid contract, and likewise liquidated damages " Shaw V. Wandesforde, 53 Cal. 300, 302. See § 636, post. " Wyman v. Hooker, 2 Cal. App. 36, 40, 83 Pac. Rep. 79. 15 K,.rr*s Cyc. Code Civ. Proc, § 1184. " &ee §§ 274 et seq., ante. " Kerr's Cye. Code Civ. Proc, § 1200. " Reed v. Norton, 90 Cal. 590, 593, 602, 26 Pac. Rep. 767, 27 Id. 426 (what such " lawful credits " might be does not clearly appear from the opinion). See §§ 317, 318, ante, and see §§ 516 et seq., post. Right of owner to eredit.s, a8 ugaiuHt tlie original eontraetor: See California I. C. Co. v. Bradbury, 138 Cal. 328, 332, 71 Pac. Rep. 346, 617, § 516 mechanics' liens. 472 for delay, being a deduction or offset which, hut for the lien law, the owner would have the right to counterclaim against the amount found due under the contract.^" Final payment. It has recently been held that the fund amounting to twenty-five per cent of the contract price, to be held thirty-five days after the completion of the building, in case of a valid contract, is practically the only money avail- able to meet the demands of lien claimants, aside from the liability of the owner as fixed by notice to withhold pa}'- ments, and this amount cannot lawfully be depleted or reduced to the injury of such claimants; and if there be no completion payment provided for in such contract, or it be more than exhausted by the demands of the owner, then the excess of such demand cannot be made a charge against such final payment of twenty-five per cent, as the same is a legislative sequestration to meet the demands of claimants; and for such excess the owner's right of recovery is against the contractor alone/® ^ 516. Same. Offsets and counterclaims against different payments. In reference to the provisions of section eleven hundred and eighty-four,^" that the whole contract price shall not be diminished by any prior or subsequent indebted- ness, offset, or counterclaim in favor of the reputed owner and against the contractor, the claim has reference, in the first place, to offsets not arising under the terms of the con- tract, and as to which, from an inspection of the contract, material-men and laborers could have no notice. Manifestly, it would be unjust if, as against the demands of such, the owner were allowed to plead, in reduction of the contract price, some claim against the contractor as to which, in the very nature of things, they could have had no notice. These classes of oft'sets or counterclaims, whether arising before the execution of the contract, or subsequent thereto, are all " Hampton v. Christensen, 148 Cal. 729, 735, 84 Pac. Rep. 200. Owner entitled to credit for payment of claini.s before filini; lien: See Dunlop v. Kennedy (Cal.. Aug-. 31, 1S93), 34 Pac. Rep. 92 (rehearing granted). 20 Kerr's Cyc. Code Civ. Proc, § 1184. 473 IMPROVEMENT CAUSED BY WHOM. § 516 excluded.-^ But, upon the other hand, certain matters of offset, if provided for by the terms of the contract itself, may, both with justice and legality, be allowed. Abandonment by contractor, etc. If the owner, for example, is obliged to furnish material and labor to complete a contract abandoned by the contractor, or if material of cheaper value is substituted in the building, or if, upon default of the contractor to complete, the owner enters into the possession of the uncompleted building, no one could question the justice of the owner's claim for an allowance for any of these matters, if an allowance for them was contem- plated by the provisions of the contract ; for the contract price is established and agreed to in express contemplation of the fact that the particular material shall be used, and that the building shall be turned over to the owner com- pleted. If the particular materials are not used, if the building is turned over uncompleted, so that the owner has to accept it unfinished, or complete it at his own cost, there has been a failure by so much to put the amount of the con- tract price into the structure, and it would be manifestly unjust that the owner should be expected to pay for that which, without any fault of his own, he has not received. -- Items of damages for failure to complete in time differ somewhat from the damages where the loss was occasioned by the necessity of the owner to make good the deficiencies of the contractor in the furnishing of omitted material. It is a perfectly legal contract which makes time of completion of its essence, and provides that the contractor, for a failure to perform in time, shall make good to the owner such loss as the latter may sustain thereby. More than this, it is a deduction or offset which, but for the lien law, the owner would have the unquestioned right to claim from the amount found due the contractor under the contract. -- Final payment. After providing that no payment shall be made until the commencement of the work, the legislature " See Dore v. Sellers, 27 Cal. 593; Sclimid v. Busch. 97 Cal. 1S8, 31 Pac. Rep. 893. " Hampton v. Christensen, 148 Cal. 729. 736, 737, 84 Pac. Rep. 200. The case of Reed v. Norton, 90 Cal. 590, 593, 26 Pac. Rep. 767, 27 Id. 426, was not noticed in this opinion. § 516 mechanics' liens. 474 sets aside a fund amounting to twenty-five per cent of the contract price, to be held for thirty-five days after the com- pletion of the building, and this fund, in case of a valid con- tract, is practically the only money available to meet the demands of the lien claimants. Whatever may be said of other payments, this amount of money cannot lawfully be depleted or reduced to the injury of any such claimant. If it could be, it would be setting at naught the constitutional provision granting a lien for the full value of the labor done or material furnished. ^^ Completion payment. Upon the other hand, ample oppor- tunity is accorded to the owner by the California law to pro- tect himself against all derelictions, omissions, and neglects upon the part of the contractor. And this he may do by providing for reserved payment to be made on completion, sufficiently large to protect himself against any violation of the contract. In case of such violation, there would then be justly chargeable against the completion payment, and chargeable as a first demand upon the fund, such sums as the owner might prove due him in recoupment for damages. Out of this payment would therefore first come (if contem- plated by the terms of the contract) the necessary cost to the owner of completion in case of abandonment, the cost of making good trifling imperfections and omissions, and the proved damages in case of failure to complete on time. But if there be no such completion payment provided for in the contract, or if such completion payment be more than exhausted by the demands of the owner, then the excess of such demand cannot be carried over and made a charge against the twenty-five per cent final payment, to the injury of any lien claimant thereon ; for, as has been said, since this final payment is the only fund which the legislature has sequestered to meet the demand of the lien claimants, to permit this would be to deprive them of their constitutional right to a lien.-- =2 Hampton v. Christensen, 148 Cal. 729. 736. 737. 84 Pac. Rep. 200. The case of Reed v. Norton, 90 Cal. 590, 593, 26 Pac. Rep. 767, 27 Id. 426, was not noticed in this opinion. 475 IMPROVEMENT CAUSED BY "WHOM. § 517 § 517. Same. Damages for delay in performance. The consent on the part of the owner that the defendants con- tinue the work after the stipulated time is not, of itself, a waiver of damages, or of the breach of the contract. Upon a breach, the owner, not being himself in default, has the right to rescind, or permit the defendant to complete the work and sue for damages caused by the default.-^ ^^ Bryson v. McCone, 121 Cal. 153, 53 Pac. Rep. 637. Damages not recoverable for delay, ivhere contract Tvas modified by mutual consent: See Boothe v. Squaw Springs W. Co., 142 Cal. 573, 579, 76 Pac. Rep. 385. Exclusion of evidence as to damages for delay: See Boothe v. Squaw Spring.s W. Co., 142 Cal. 573, 579, 76 Pac. Rep. 385. See § 516, ante. Liquidated damages. Stipulation for. Literal enforcement: See 1 Am. & Eng. Ann. Cas. 950. Ha^vaii. Action for damages for breach of contract: McGrew v. Barnes, 7 Hawn. 90. Oregron. The measure of damages was held to be the difference between what it would cost the owner to finish the building and what he would have had to pay the contractor under the contract, together with the probable rental value of the building during the delay, less such work and materials used by the owner in completing the build- ing, but not including materials on the ground unattached to the building, which were held to belong to the contractor: Savage v. Glenn, 10 Oreg. 440. See Glenn v. Savage, 14 Oreg. 567, 13 Pac. Rep. 442. When owner is entitled to damages against contractor for delay in performance of the contract, the contractor is entitled to deduct there- from for delays occasioned by the owner himself: Vanderhoof v. Shell, 42 Oreg. 578, 72 Pac. Rep. 126, 130. Recovery by owner of excess of contract price, under Hill's Ann. Laws, § 3679: Cooper Mfg. Co. v. Delahunt, 36 Oreg. 402, 51 Pac. Rep. 649, 60 Id. 1. rtah. Where interest is recoverable, not as a part of the contract, but by way of damages, the giving or withholding thereof is largely in the discretion of tlie court, and laches of parties may be considered in the award: Culmer v. Caine, 22 Utah 216, 61 Pac. Rep. 1008. AVashington. A property-owner may counterclaim damages result- ing from the act of a paving contractor in placing earth, excavated from the streets, on the owner's lot, in an action by the assignee of the contractor to establish a lien on the property: Young v. Borzone, 26 Wash. 4, 66 Pac. Rep. 135, 139, 421 (under Ballinger's Ann. Codes and Stats., § 4835). Damages for delay in completing building. As long as the con- tractor endeavors to fulfil the contract, and complete the building in good faith, the owner is under no obligation to interfere with him, and need not take charge of the building or complete it, in order that the amount of damages for delays may be lessened, so far as the con- tractor's surety is concerned: Leghorn v. Nydell, 39 Wash. 17, 80 Pac. Rep. 833. Costs and expenses reasonably necessary to make work conform to original contract may be recovered by the owner from tlie contractor for failure to carry out the contract, notwitlistanding that the owner §§518,519, mechanics' LIENS. 476 § 518. Same. Completion of contract by owner. Where the contractor is preventetl by the owner from completing a non-statutory original contract, unless there is a balance due to the contractor at the time of abandonment, or the building is completed by the owner at a cost less than the contract price, a subclaimant has no lien.-* § 519, Same, Right to complete construction upon aban- donment. Where the contract is for less than one thousand dollars, and is filed, and the contractor abandoned the build- ing when it was half completed, and the contract provided that the price was to be paid upon the completion of the building, it was held that the owner had an undoubted right to proceed with the construction and complete the building substantially as called for under the contract.-^ had sold the house, and that there was no evidence of payment for repairing any defects, or of the sale of the property, on account of defects, for less than otherwise would have been obtained. Such dam- ages are personal: Ekstrand v. Barth, 41 Wash. 321, 83 Pac. Rep. 305. ■Vo v»aiver of claims for damages under an agreement whereby owner occupied preniises: See Long v. Pierce Co., 22 Wash. 330, 61 Pac. Rep. 142, 151. Action for damages: Main I. Co. v. Olsen (Wash.), 86 Pac. Rep. 1112. Damages for failure of owner to permit claimants, whose claims are merged under judgment of foreclosure of liens, to occupy preniises under a forfeited leasehold interest subject to the lien: See Stetson & Post M. Co. v. Pacific A. Co., 37 Wash. 335, 79 Pac. Rep. 935. "Wyoming. When the contractor violates his contract as to the work or material, to the substantial injury of the owner, the latter may either " refuse to pay the contract price ... to the amount for which he is damaged, or he may pay for and take possession of the buildings and tlien sue and recover of the builder the amount of his damages. And he can recover, whether he knew of the breach of con- tract by the other party at the time of payment or not. In neither case is there any waiver of his rights under the contract": Halleck V. Bresnahen, 3 Wyo. 75, 2 Pac. Rep. 537. See also §§ 334 et seq., ante. -* Turner v. Strenzel, 70 Cal. 28, 30, 11 Pac. Rep. 389 (decided under the law before the amendment of § 1183, creating statutory original contracts, and before § 1200, Code Civ. Proc, was enacted). See McCon- nell V. Corona City W. Co., 149 Cal. 60, 63, 85 Pac. Kep. 929. See " Prevention," § 339, ante. Oregon. See Justice v. Elwert, 28 Oreg. 460, 43 Pac. Rep. 649. ^ Denison v. Burrell, 119 Cal. 180, 183, 51 Pac. Rep. 1. See Scammon V. Denio, 72 Cal. 393, 14 Pac. Rep. 98. See "Obligations," §§523 et seq., post; "Answer," §§747 et seq., post. AVashington. See, as to right to complete building after the con- tractor's abandonment, Brodek v. Farnum, 11 Wash. 565, 570, 40 Pac. Rep. 189. 477 IMPROVEMEXT CAUSED BY WHOM. §§ 520, 521 In case of mutual abandonment of the work, it has been held that the right of the owner to complete the building or other improvement without waiting thirty days' suspen- sion of labor is derived from the statute, and that where the right of completion is given by the contract itself, no ces- sation of labor for any number of days is a condition pre- cedent to the owner's right of completion, and that such completion is a completion under the contract. -° § 520. Same. Right to materials upon abandonment. The statute provides that in case the contractor fails to perform his contract in full, or abandons the same before completion, the materials then actually delivered or on the ground belong to the owner.-'' This provision, proprio vigore, conveys title from the contractor to the owner, and the limitations upon the same have not yet been developed in California. § 521. Same. Rights against others. The general rights of the owner against claimants other than the contractor, the same being correlative to the duties owing by such per- sons to the owner, have already been somewhat considered under various heads, Avhich are noted below.^* The rights =» Hug-hes Bros. v. Hoover, 3 Cal. App. 145. 84 Pac. Rep. 681. Confounding " abandonment " and " ce.ssation." This case, however, seems to confound actual abandonment with that cessation from work which, under the statute, would be equivalent of completion for the purpose of filing claims of lien: See discussion, §§ 348 et seq., ante; and §§ 358 et seq., ante. =' Kerr's Cyc. Code Civ. Proe., § 1200. See " Abandonment," §S 358 et seq., ante. See § 526, post. Oregon. But, as to materials belonging to contractor, see Savage V. Glenn, 10 Oreg. 440. AVasliington. See Potvin v. Denny H. Co., 37 Wash. 323, 79 Pac. Rep. 9 4 0. -^ As to affeeting liens of others, see Kerr's Cyc. Code Civ. Proc, S 1201; and see Middleton v. Arastraville M. Co., 146 Cal. 219, 225. See "Waiver," §§627 et seq., post; "Impairment of Liens," §§284 et seq., ante; "Alteration of Contract," §§ 326 et seq., ante. As to rights with reference to .sale, see §§ 948 et seq.. post. Indemnifying o^vuer against liens. Effect on material-man. The contractor and owner cannot deprive the material-man of his lien by a clause in the contract by which the contractor agrees to indemnify the owner against anj- liens imposed by persons furnishing materials to be used in constructing: Wliittier v. Will)ur, 48 Cal. 175, 177 (1868). For extent of application of provisions of §1184. Kerr's Cyc. Code Civ. Proc., as to right of set-off, see " Payments," §§ 269 et seq., ante. §§522,523 mechanics' liens. 478 of the owner against third persons not lien claimants will be considered hereafter.-'* § 522. Same. Payments.^" "Where there is no personal liability against the owner, he is not at liberty to pay, with- out the consent of all the parties, the amounts claimed upon the lien.^^ Where money is paid to a subcontractor on gen- eral account by the contractor, and is not paid to the con- tractor by the owner, the latter has no right to require it to be applied to the account of his own building contract. "- Subclaimants cannot complain of payments when. Sub- claimants have no right to complain of volunteer payments by the owner beyond the contract price.^* § 523. General obligations of owner and employer.^* Scope of discussion. It is not intended to treat at length of matters elsewhere more fully considered, nor of the general See also "Answer," §§753 et seq., post; "Conspiracy as to Contract Price," § 314, ante. Montana. The owner cannot enforce any contract between the principal contractor and the latter's subcontractor, and can have no action against the subcontractor for a breach of such subcontract: Wag-ner v. St. Peter's Hospital, 32 Mont. 206, 79 Pac. Rep. 1054, 1055. AVashiuRton. W'here a vendee, who had forfeited his rights under an unrecorded contract of sale, which provided that the Improvements should remain upon the land, leased the land to a lessee, who had no knowledge of such contract, and who erected improvements with the knowledge of the owner, the latter is estopped to declare a forfeiture of the contract of sale to the prejudice of the lien of the lessee's material-man upon the improvement: Bell v. Groves, 20 W'ash. 602, 56 Pac. Rep. 401. =^ See chapter on " Third Persons," §§ 585 et seq., post. See also §§ 486 et seq., ante. '" Oklahoma. Payment of advances to contractor, not avoiding the conditions of contractor's bond: See American S. Co. v. Scott, 90 Pac. Rep. 7. 31 Wilson V. Samuels, 100 Cal. 514. 519, 35 Pac. Rep. 148: Covell v. Washburn, 91 Cal. 560, 563, 27 Pac. Rep. 859. See " Obligations of Owner." §§ 523 et seq.. post. 3-' Schallert-Ganahl L. Co. v. Neal, 91 Cal. 362. 365, 27 Pac. Rep. 743 (syllabus misleading). See " Payments," §§ 251 et seq., ante. ^ Southern Cal. L. Co. v. Jones, 133 Cal. 242, 245, 65 Pac. Rep. 378. See § 535. post. ^ Inability of owner for failure to file contractor's bond, under § 1203, Kerr'.s Cyc. Code Civ. Proc.. damages limited to the amount of lien claims not exceeding twenty-five per cent of the contract price: See Gibbs v. Tally, 63 Pac. Rep. 168. s. c. reversed, 133 Cal. 373, 65 Pac. Rep. 970, 60 L. R. A. 815 (unconstitutional). See " Bond," § 281, ante. 479 IMPROVEMENT CAUSED BY WHOM. §§ 524, 525 correlative rights of lien claimants. Inquiry must be made in other parts of this work for more detailed development of the general statements contained in this chapter, as partially indicated in the note.^^ § 524. Same. Duty to file statutory original contract. Of the duty of the owner or emi)loyer to see to it that the statutory original contract is filed, the supreme court has said : " It is said that this view works a hardship to the respondents. This is probably so, for this particidar law frequently works a hardship to owners of property; but it has been heretofore pointed out to such owners that in mak- ing contracts for building they must be careful to comply with the statute. . . . While the mechanic's-lien law^ cer- tainly interferes to a great extent with the right of a prop- erty-owner to contract according to his own best judgment for the erection of improvements thereon, still it is apparent that the property-owner might take advantage of mechanics and laborers by making a contract with a contractor finan- cially irresponsible for the construction of a house actually worth twice the amount of the named contract price." ^'^ § 525. Same. Duty to withhold payments. If the proper notice is given to the owner, it is his duty to withhold from Duty of o^vner to see to it tliat bond of contractor is fiied, under §1203, declared unconstitutional: See Mangrum v. Truesdale, 128 Cal. 145, 146, 60 Pac. Rep. 775. Obligations of owner on contract to pay instalments: See Flinn V. Mowry, 131 Cal. 481, 485, 63 Pac. Rep. 724, 1006. "^ See "Original Contractor," §§61 et seq., ante; "Of Subcon- tractor," §§70 et seq., ante; "Of Material-men," §101, ante; "Of Laborers," §§112 et seq., ante; "Valid Contract," §§315 et seq., ante; "Void Contract," §§319 et seq., ante; "Extent of Lien," §§438-507. ante; "Performance," §§334 et seq., ante; "Notice of Non-responsi- bility," §§ 469 et seq., ante. Colorado. See Davidson v. Jennings, 27 Colo. 187, 60 Pac. Rep. 354, 84 Am. St. Rep. 49, 48 L. R. A. 340. Idaho. Duty to employ competent and honest engineer: See Spaul- ding V. Coeur D'Alene R. & N. Co., 5 Idaho 528, 51 Pac. Rep. 408. Alontana. Held to be the duty of the owner to see to it that the subcontractors were paid l)efore paying contractor: Gould v. Barnard, 14 Mont. 335, 36 Pac. Rep. 317. Oreg^on. Liability of railroad company under Laws 1889, p. 75: See Coleman v. Oregonian R. Co., 25 Oreg. 286, 35 Pac. Rep. 656. ^ San Francisco L. Co. v. O'Neil, 120 Cal. 455, 456, 52 Pac. Rep, 728. See § 294, ante, and " Spirit of the Law," § 6, ante. § 526 mechanics' liexs. 480 the contractor the sum due him, or sufficient to meet the claims of claimants ; ^' and "vvhere a notice to withhold, served on behalf of a lien claimant, though inartificially drawn, is sufficient under the statute, it is the duty of the owner to withhold sutBcient funds to pay the claimant's demand, together with estimated costs; and his subsequent payments, after service of that notice, even though legal and within the contemplation of the contract, cannot be allowed to affect so much of the fund as was thus set apart by force of this notice, which operated in the nature of a garnish- ment.^^ § 526. Same. Liability of owner on breach or abandon- ment. Statutory provision. The statute"" provides: "In case the contractor shall fail to perform his contract in full, or shall abandon the same before completion, the portion of the contract price applicable to the liens of other persons than the contractor shall be fixed as follows : From the value of the Avork and materials already done and furnished at the time of such failure or abandonment, including mate- rials then actually delivered or on the ground, which shall thereupon belong to the owner, estimated as near as may be by the standard of the whole contract price, shall be " Russ L. Co. V. Garrettson, 87 Cal. 589. 594, 25 Pac. Rep. 747. See ■■ Notice," §§ 547 et seq., post. Oblij^ation to withhold moneys: See VaUey L. Co. v. Struck, 146 Cal. 266, 270, 80 Pac. Rep. 405. Colorado. When notice is given to tlie owner, he is required to withliold payments from the contractor of sufficient money due or to becoine due to answer the claims. If such notice is not given, he is not required to withhold the monej': Chicago L. Co. v. Newcomb, 19 Colo. App. 265, 74 Pac. Rep. 786, 789. Hawaii. Retention of money due to contractor a protection to owner: Allen v. Redward, 10 Hawn. 151, 157. Utali. Owner is bound to take notice of the liens of subclaimants, and any payments made to the contractor after such lien attached must be held to have been at the owner's risk rnd peril: Sierra Ne- vada L. Co. V. Whitmore, 24 Utah 130, 66 Pac. Rep. 779, 781. Deduction from amount found due olainiant.<4trict cannot maintain action in equity a!?ain.st a.S8i^nee of an order to cancel tlie order and enjoin its payment on account of increased expense or non-payment of claims, caused by a breach of the contract, where the contractor has given a bond, there being an adequate remedy upon the bond: Long Beach S. Dist. v. Lutge, 129 Cal. 409, 415, 62 Pac. Rep. 36. "» Simpson v. Gamache. 134 Cal. 216, 219, 66 Pac. Rep. 222. 487 IMPROVEMENT CAUSED BY WHOM. § 535 and from the acceptance of the order and the circumstances surrounding the acceptance it is apparent that the intention of the parties Avas, that the mortgagee should retain for the material-men, out of moneys in its hands belonging to the o-\vner of the building, and due from him to the contractor, enough to pay the amount of the contractor's indebtedness to the material-men, evidenced by an order, there being no existing indebtedness on the part of the mortgagee, and it having no money or property of the contractor, but it simply having a mortgage on the owner's property to secure legal advances for the owner on account of the building, it can legally advance for the owner to the contractor only such moneys as may be due from such owner to the contractor on account of the building, and even if it has other monej's and securities in its hands belonging to the owner of the build- ing, such moneys and securities are the property of the owner, and cannot legally be applied in payment of the contractor's debts, in the absence of any liability on the part of the owner to the contractor, or some authorization from such owner to so apply them. If the contractor fails to complete the building, the amounts stipulated by the build- ing contract to be paid upon such completion never have become due from the owner to the contractor, notwith- standing a destruction of the building by fire, without the contractor's fault, and therefore there is no money in the mortgagee's hands applicable to the contractor's debt to the material-men. ®° § 535, Same. Voluntary payment of contractor's debts. The owner is generally not under obligation to the contractor to pay his debts to the material-men without suit, or to anticipate that the contractor will have no defense against them in a suit brought by them to enforce and foreclose their liens. He cannot be presumed to know whether or not the contractor has any valid defense to the foreclosure suits. If «» Hogan V. Globe M. B. & L. Assoc, 140 Cal. 610, 613, 74 Pac. Rep. 153. Advanoes niii.st be uroperly iiiiiile: See 4 Am. & Eng. Ann. Cas. 615. Am to destruotion of iMiililiiiK Itoforo coiii|>letion. and its effect on mechanics' lienH, see note 2 Am. & Eng. Ann. Cas. 689. § 535 mechanics' liens. 488 the owner pays tlie demands, on which the material-men had filed liens, without suit, and without the request of the con- tractor, the owner does so at the peril of being adjudged to have paid them as a mere volunteer to the extent to which the demands paid may not jjrove to be valid liens upon his propert}^, and to this extent he will have no recourse upon the contractor for indemnity. ^^ The burden of proving that the demands paid by him were valid debts of the plaintiff secured by valid liens upon de- fendant's property, or that he had paid thereon, at the con- tractor's request, would, moreover, be imposed upon him. He is under no obligation to the contractor to pay the con- tractor's debts to the material-men.*^- " Substantially in the language of Covell v. Washburn, 91 Cal. 560, 563, 27 Pac. Rep. 859; Wilson v. Samuels, 100 Cal. 514, 519, 35 Pac. Rep. 148. Owner has uo rig-ht to set up his opinion as to the legality of lien when he knows that the contractor or his assignees claimed the right to contest, without taking a chance of the correctness of that opinion: Wilson V. Nugent, 125 Cal. 280, 284, 57 Pac. Rep. 1008. Owner at his own risk pays subclainiants, for he thus determines the amount and justness of their claims: Stimson v. Dunham, C, H. Co., 146 Cal. 281, 283, 79 Pac. Rep. 968. Owner is not lial>le to contractor, if, after an order of the contractor to pay subclaimants, the owner voluntarily pays a valid judgment against the contractor in favor of such claimants: Simpson v. Gamache, 134 Cal. 216, 66 Pac. Rep. 222. See § 522, ante. Surety on contractor's bond. Liability for attorneys' fees, etc. In Alcatraz M. H. Assoc, v. United States F. & G. Co., 3 Cal. App. 338, 85 Pac. Rep. 156, 158, it was held that a surety on a contractor's bond was not liable for expenses incurred by the owner for the services of attorneys and other expenses in suits for the enforcement of liens, where, under the contract, he was not required to pay twenty-five per cent of the contract price until thirty-five days after the completion of the building, during which time he could ascertain the li«n claim- ants and pay them the sum unpaid, on the theory that the owner knew or could have ascertained the amount of liens claimed thereon, and that he knew, too, that the amount of the unpaid portion of the con- tract price was the limit for which any liens could be enforced, and where, instead of appropriating the money, the owner chose to await action for their recovery, and thereby incurred additional expense, the surety was not liable for such expense, but, as above shown, no such obligation rests upon the owner. Colorado. See Mouat L. Co. v. Gilpin, 4 Colo. App. 534, 537, 36 Pac. Rep. 892. "- Covell V. Washburn, 91 Cal. 560, 563, 27 Pac. Rep. 859; Wilson v. Samuels, 100 Cal. 514, 519, 35 Pac. Rep. 148. See Macomber v, Bigelow, 123 Cal. 532, 56 Pac. Rep. 449. Colorado. See Schradsky v. Dunklefe, 9 Colo. App. 394, 397, 48 Pac. Rep. 066. 489 IMPROVEMENT CAUSED BY WHOM. § 536 His only obligation to the contractor is to pay him so much as the labor he has performed and the materials he has fur- nished and used on his house are reasonably worth. Against this obligation he is entitled to set off the contractor's obliga- tion to indemnify him for all that he has been compelled to pay to relieve his property from the liens thereon to secure the contractor's debts, including costs in the suits to enforce these liens. ^^ Failure to make valid defense. Where the original con- tract is valid, and the owner does not set up a valid defense upon the foreclosure of subclaimants' liens for a larger amount than that due under the contract to the contractor, and pays the judgment therefor, under stipulation, as he is under no legal obligation to pay the excess, which is merely a debt of the contractor, he cannot recover such voluntary payment of the excess from the contractor's surety, especially where the contractor has not requested the owner to pay it, where the bond does not extend to the releasing of the build- ing from invalid liens, but covers only claims that may " accrue " against the building by reason of the erection ; for claims which could not be legally enforced against the build- ing cannot be said to have accrued against it.*^^ § 536. Same. Guaranty not a prohibited payment. Where the owner, at the request of the contractor, guarantees or assumes the latter's accounts with his subclaimants, for the material necessary for completion of the structure, the amount to be deducted from the completion payment when it becomes due to the contractor, and the owner pays the amount after such payment becomes due, the guaranty is not equivalent to a premature payment denounced by section eleven hundred and eighty-four,®* as against general credi- •= Coven V. Washburn, 91 Cal. 560, 563, 27 Pac. Rep. 859; Wilson v. Samuels, 100 Cal. 514, 519, 35 Pac. Rep. 148. See Macomber v. Bigelow, 123 Cal. 532, 56 Pac. Rep. 449. Colorado. See Schradsky v. Dunklee, 9 Colo. App. 394, 397, 48 Pac Rep. 666. « Brill V. De Turk, 130 Cal. 241, 244, 62 Pac. Rep. 462. Approved in Stimson v. Dunham, C. H. Co., 146 Cal. 280, 284, 79 Pac. Rep. 968. " Kerr's Cyc. Code Civ. Proc, § 1184. § 537 mechanics' liens. 490 tors, or those who had no lien upon the property, by filing a claim therefor, or who had given no notice to withhold pay- ments.*'^ § 537. Same. Owner as stakeholder. After the comple- tion of a valid contract, the owner holds the reserved money for payment to the contractor and lien claimants, as the one or the other may prove to be entitled to it. If there be a con- test between them in regard to the money, it is a matter for them to settle between themselves, and at their own expense, with which the owner has no concern. In such a case the owner may, and should, deposit the money in court and allow the contestants then to have their rights determined. Where there is no contract between the contractor and the lien- holders, and the former, by his default, admits that the latter «' In Hamilton v. Christensen, 148 Cal. 729, 734, 84 Pac. Rep. 200, the court say: "In return for the contractor's promise to reimburse him out of the completion payment when it became due, he guaranteed or assuined the contractor's responsibility for the payment of certain material necessary for the completion of his house. When the com- pletion payment became due (no rights by way of liens or notice to withhold having intervened), he would have been at perfect liberty to pay this money to the contractor. Indeed, no one will dispute but that, still holding the money, he could have gone with the contractor and paid it over himself to the material-men, thus to make sure that the obligations were canceled. Or, again, no one would question his right to have paid over the money to the contractor, and immediately to have received back from him the amount of these obligations. But, because he did not adopt one of these roundabout ways of accomplish- ing the same result, but, instead, himself paid the amount of the funds due the contractor and deducted the amount so paid, it is con- tended that, having done this, in contemplation of his obligations previously assumed, he must pay the money twice. This, instead of being a construction of a penal statute in favor of the owner, is a tightly stretched and extremely attenuated construction against him. If, before he actually made these payments out of this fund after it became due, demands to witlihold and claims of liens aggregating two thousand dollars had been served and filed, he then, in the eye of the law, would have stood compelled to sequester this money and hold it to meet these demands, and thus might have been obliged, under his guaranty or obligation, to pay out of his own pocket the amounts which he had assumed on behalf of the contractor. That was the only risk which he ran; but as in this case a demand amounting to only five hundred dollars had been served upon him, there was still fifteen hundred dollars to be devoted to the extinguishment of these obliga- tions. Finally, upon this point it may be said that, as this penal clause of the statute, is to be constrvied in favor of the owner, the question may be taken as determined in the owner's favor under the finding of the court that the payments were actually made after the completion payment was due." 491 IMPROVEMENT CAUSED BY WHOM. § 538 are entitled to it, the owner should not protract the litiga- tion.*"* § 538. Same. Liability for costs and interest. Inter- pleader. Where, by force of the statute, the owner is pre- vented from paying the amount for which he was liable to the contractor, after the service of notices of lien claimants on the owner, the latter is not liable for interest ; ®' and a demand for extras does not draw interest until the amount is ascertained by the judgment of the court ; but where he contests the right of the contractor and his subclaimants to the fund, he may be held liable for costs."^ Where notices are served to an amount in excess of the contract price, the owner cannot be held beyond the contract price, when the contract is valid, and charged with additional costs, created or incurred by the contractor.^^ Owner may come into court and bring in all interested parties, so that one decree may settle all rights, and may ask to be permitted to pay into court the amount due by him as «« De Camp L. Co. v. Tolhurst, 99 Cal. 631, 635, 34 Pac. Rep. 438. See '■ Decree," § 911, post. Oregon. Duty of owner before expiration of thirty days after com- pletion of building to see to it that payments to contractors were dis- tributed among sublien claimants: Hughes v. Lansing, 34 Oreg. 118, 55 Pac. Rep. 95, 97, 75 Am. St. Rep. 574 (under Hill's Code, §§ 3678, 3679). Depo»)it with county clerk under act o( 1874 optional: Whittier v. Blakely, 13 Oreg. 546, 11 Pac. Rep. 305. " Stimson v. Dunham, C, H. Co., 146 Cal. 281, 283, 79 Pac. Rep. 968. See Easterbrook v. Farquharson, 110 Cal. 316, 42 Pac. Rep. 811. "* Contest by owner. Co.sts and attorneys' fees. " At the commence- ment of the action, he [the owner] could have tendered and paid into court the amount then unpaid of his liability to the contractor, and thereby discharged himself of further liability; but. Instead thereof, he contested the right, not only of the lien claimants, but also of the contractor, to any portion of said unpaid amount, and necessitated the litigation which followed. The court, therefore, did not err in re- quiring the payment of the costs and attorneys' fees in addition to the amount which he had agreed to pay the contractor": Union L. Co. v. Simon (Cal. App., March 13, 1906), 89 Pac. Rep. 1077, 1081. Colorado. Allowance of interest on claims: See Joralmon v. McPhee, 31 Colo. 26, 71 Pac. Rep. 419, 423. Montana. It has been held in this jurisdiction that where the con- tractor gives to his subclaimants orders on the owner, which the latter declines to pay until liens based upon the claims are merged in a judg- ment, the costs of the foreclosure of the liens cannot be set off by him in an action by the contractor to assert a lien for the contract price: Boucher v. Powers, 29 Mont. 342, 74 Pac. Rep. 942. •» Stimson v. Dunham, C, H. Co., 146 Cal. 281, 283, 79 Pac. Rep. 968. § 539 mechanics' liens. 492 soon as the sum due for extras could be ascertained, where no objection to such pa^'ment is raised.''^' Where no tender of amount due, or oifer to allow judg- ment for any sum, is made by the owner, costs and attorneys' fees, provided for in section eleven hundred and ninety-five,^^ may be alloAved to the party establishing his lienJ^ § 539, Same. Personal liability. The " employer," whether the owner of the land or not, is liable for the full value of the labor or materials to the person with whom he contracts; '^ '» Stimson v. Dunham, C, H. Co., 146 Cal. 281. 283, 79 Pac. Rep. 968. Payment into court. Interest and costs. Under a valid contract, where the owner pays the fund into court, he is not liable for interest or costs, although an issue is made as to the validity of the contract, which was decided in favor of the owner: Hooper v. Fletcher, 145 Cal. 375, 379, 79 Pac. Rep. 418. Duty to deposit money in court: "Wilson v. Nugent, 125 Cal. 280, 284, 57 Pac. Rep. 1008. " Kerr's Cyc. Code Civ. Proc, § 1195. " Linck V. Johnson, 134 Cal. xix, 66 Pac. Rep. 674. " Central L. & M. Co. v. Center, 107 Cal. 193, 197, 40 Pac. Rep. 334. See, for instance, Kuhlman v. Burns, 117 Cal. 469, 49 Pac. Rep. 585. See Kerr's Cyc. Code Civ. Proc, S 1197. Creditors, ^vho are not found to be lien-Iiolders, have no recourse again.st the owner's property, nor a personal judgment against him, unless they are in privity with him: Kennedy-Shaw L. Co. v. Priet, 115 Cal. 98, 99, 46 Pac. Rep. 903. See s. c. 113 Cal. 291, 293, 45 Pac. Rep. 336; Kennedy-Shaw L. Co. v. Dusenbery, 116 Cal. 124, 126, 47 Pac. Rep. 1008; Santa Clara V. M. & L. Co. v. Williams (Cal., Dec. 8, 1892), 31 Pac. Rep. 1128. See §§ 315 at seq., ante. Liability of board of education for breach of contract: See Morgan V. Board of Education, 136 Cal. 245, 246, 68 Pac. Rep. 703. Liability of owner on contract to pay for work in instalments, upon failing to pay one instalment, whole contract price not due: See Flinn V. Mowry, 131 Cal. 481, 486, 63 Pac. Rep. 724, 1006. Colorado. Where the owner agrees also to pay the claims of the contractor's subclaimants if materials or labor are performed upon or for the building, the owner is personally liable: Harris v. Harris, 18 Colo. App. 34, 69 Pac. Rep. 309. Personal judgement agrainst the owner for work performed upon building, under owner's promise to pay the claimant therefor, is not affected by the failure of the court to make a final disposition of the case against the contractor, who is also a defendant: Harris v. Harris, 18 Colo. App. 34, 69 Pac. Rep. 309. Oregon. Where the defendant is a party to 'the contract, the claim- ant may have personal judgment for any deficiency, notwithstanding recitals in the judgment of the amounts found to be due: Watson v. Noonday M. Co., 37 Oreg. 287, 55 Pac. Rep. 867, 58 Id. 36, 60 Id. 994 (under Hill's Ann. Laws, § 3669). AVyoming. Personal liability to owner's contractor: W^yman v. Quayle, 9 W^yo. 326, 63 Pac. Rep. 988. 493 IMPROVEMENT CAUSED BY WHOM. § 539 but, since there is no privitj^ between him and subclaimants/* aside from his liability by notice,'" he is not personally liable for the debts of the contractor to them, even if they have liens upon the property, whether the original contract is valid "^ or void J^ The statute does not create a contractual relation, nor attempt to create one, which does not otherwise exist between the owner and the subcontractor, upon which a personal ">* Bowen v. Aubrey, 22 Cal. 566, 572; Macomber v. Bigelow, 123 Cal. 532, 56 Pac. Rep. 449. Owner not personally liable: See Humboldt L. M. Co. v. Crisp, 146 Cal. 686, 81 Pac. Rep. 30, 106 Am. St. Rep. 75, 2 Am. & Eng. Ann. Cas. 811. See §§ 315 et seq., ante. Colorado. Estey v. Halleck & H. L. Co.. 4 Colo. App. 165, 34 Pac. Rep. 1114; Sayre-Newton L. Co. v. Park, 4 Colo. App. 482, 485, 36 Pac. Rep. 445 (1889). '•■' See § 547, post. Colorado. The lien attaches only by virtue of the work being done or materials furnished under a contract, express or implied, with the owner of the property upon which the lien is claimed, and tlie burden of proving such contract rests upon the party asserting it: Davidson v. Jennings, 27 Colo. 187, 60 Pac. Rep. 354, 48 L. R. A. 340, 83 Am. St. Rep. 4 9. Hawaii. Owner, personally, not liable to subclaimants; Allen v. Reist, 16 Hawn. 23. Montana. Owner, personally, not liable to subclaimants: "Wagner V. St. Peter's Hospital, 32 Mont. 206, 79 Pac. Rep. 1054, 1055. New Mexico. See Pearce v. Albright, 76 Pac. Rep. 286. ■« Adams v. Burbank, 103 Cal. 646, 650, 37 Pac. Rep. 640; Gibson v. Wheeler, 110 Cab 243, 246, 42 Pac. Rep. 810. See Van Winkle v. Stow, 23 Cal. 458, 459; Barber v. Reynolds, 44 Cal. 519, 537 (1862); Eaton v. Rocca, 75 Cal. 93, 97, 16 Pac. Rep. 529; Kennedy-Shaw L. Co. v. Priet. 115 Cal. 98, 99, 46 Pac. Rep. 903; Kennedy-Shaw L. Co. v. Dusenbery, 116 Cal. 124, 126, 47 Pac. Rep. 1008; Merced L. Co. v. Bruschi (con- tractor's material-man), (Cal. Sup., Nov. 29, 1907). Colorado. Lowrey v. Svard, 8 Colo. App. 357, 46 Pac. Rep. 619. • " Covell V. Washburn, 91 Cal. 560, 562, 27 Pac. Rep. 859 (nor upon an implied contract); Southern Cal. L. Co. v. Sclimitt, 74 Cal. 625, 627, 16 Pac. Rep. 516; Davies-Henderson L. Co. v. Gottschalk. 81 Cal. 641, 647, 22 Pac. Rep. 860; Santa Clara V. M. & L. Co. v. Williams (Cal., Dec. 8, 1892), 31 Pac. Rep. 1128; McMenomy v. White, 115 Cal. 339, 343, 47 Pac. Rep. 109; Gnekow v. Confer (Cal.), 48 Pac. Rep. 331; Mar- chant v. Hayes, 120 Cal. 137, 139, 52 Pac. Rep. 154. See Stimson M. Co. V. Riley (Cal., Dec. 20, 1895), 42 Pac. Rep. 1072; Kellogg v. Howes, 81 Cal. 170, 181, 22 Pac. Rep. 509, 6 L. R. A. 588 (concurring opinion); Wood V. Oakland & B. R. T. Co., 107 Cal. 500, 502, 40 Pac. Rep. 806; Skym V. Weske Consol. Co. (Cal., Dec. 18, 1896), 47 Pac. Rep. 116. See §§ 543 et seq., post. Colorado. Liability of owner for value of materials furnished, for failure to record contract, as required by statute (Laws 1893, ch. cxvii, p. 315, S§ 1, 2): See Chicago L. Co. v. Newcomb, 19 Colo. App. 265, 74 Pac, Rep. 786, 789. § .^0 mechanics' liens. 494 action will lie. " When the law, in the contingencies men- tioned in section eleven hundred and eighty-three/^ deems that the labor is performed and material furnished ' at the personal instance of the owner,' it is simply for the purposes of the liens which it is the object of the statute to afford to those who perform labor or furnish material for the con- struction of buildings. To accomplish this object, the statute creates, under the circumstances, bj' its own force and vigor, such a relation for a specific purpose — viz., to uphold a lien — • as wnll effectuate that purpose." "^ Expulsion of contractor. The owner is not personally liable to subclaimants when he expels the contractor and wrongfully takes the materials purchased by the contractor to complete the contract, although he may be liable to the contractor for damages in conversion.^" Agency. When the person who contracts with the owner's claimant is not the agent of the owner, either express or ostensible, the owner is not personally liable. ^^ And, in the absence of privity or estoppel, equitable or statutory, as heretofore shown, the owner's property is not subject to a lien.^- § 540, Same. Liability of owner or employer under valid contract. This subject has been considered from other points of view elsewhere. ^^ It remains to recapitulate briefly the general principles of the owner's liability under a valid con- 's Kerr's Cyc. Code Civ. Proc, § 1183. " Gnekow v. Confer (Cal., March 31, 1897), 48 Pac. Rep. 331 (void contract). See " General Nature of Lien," § 9, ante. *• Turner v. Strenzel, 70 Cal. 28, 31, 11 Pac. Rep. 389. The question of the owner's estoppel was raised in this case. An attempt was made to enforce a lien, but tlie complaint failed to show that anything was due from the owner to the contractor. " Eaton V. Rocca, 75 Cal. 93, 97, 16 Pac. Rep. 529. See "Agency," §§572 et seq., post. *= Johnson v. Dewey, 36 Cal. 623, 625. So of a lien created by a lessee in possession: Phelps v. Maxwell's Creek G. M. Co., 49 Cal. 336, 338. See also § 547, post. »' See "Effect of Validity of Contract," §§315 et seq., ante; "Lien as Limited by Contract," §§ 452 et seq., ante; "Liability of Public Cor- poration," §§116, 192, ante; "Notice of Non-liability," §§469 et seq., ante; "Costs," §§935 et seq., post; "Substantial Non-Compliance as to Payments," §§ 269 et seq., ante. 495 IMPROVEMENT CAUSED BY WHOM. § 5-iO tract. Under the eode,^* the rights of lien-holders and the liability of the owner are, in general, determined and con- trolled by the terms of the valid original contract between the owner and the original contractor; and the legislature cannot compel the owner to pay more than he has contracted to pay under such valid contract,*-^ unless he has paid the same after being notified of the claims of the contractor's subclaimants before payment to the contractor,***^ as more particularly shown in other parts of this work.^^ And, gen- erally' speaking, in the absence of notice from the subcon- tractor of his claim, the payment by the owner in conformity «< Ding-ley v. Greene, 54 Cal. 333, 336; Kellogg v. Howes, 81 Cal. 170, 175, 22 Pac. Rep. 509, 6 L. R. A. 588; Johnson v. La Grave, 102 Cal. 324, 325, 36 Pac. Kep. 651; Pacific Mut. L. Ins. Co. v. Fisher, 106 Cal. 224, 233, 39 Pac. Rep. 758. Liikewlse under previous statute.^. Act of 1858: McAlpin v. Duncan, 16 Cal. 126, 128; Bowen v. Aubrey, 22 Cal. 566, 570. Act of 1S62: Shaver v. Murdock, 36 Cal. 293, 298; Henley v. Wadsworth, 38 Cal. 356, 361. *" Whittier v. Wilbur, 48 Cal. 175, 177; Kellogg v. Howes, 81 Cal. 170, 177, 22 Pac. Rep. 509, 6 L. R. A. 588. See Wilson v. Barnard, 67 Cal. 422, 423, 7 Pac. Rep. 845. See Gibbs v. Tally, 133 Cal. 373, 378, 65 Pac. Rep. 970, 60 L. R. A. 815. See §§ 34 et seq., ante. Abandonment: See McDonald v. Hayes, 132 Cal. 490, 494, 64 Pac. Rep. 850. See §§ 358 et seq., ante. Hawaii. The owner may protect himself from liability beyond the contract price by employing only such contractors as are financially responsible, or by withholding from them such part of the contract price as may be sufficient to satisfy liens, or by requiring them to give bonds for the delivery of the property free from liens, or by other means: Allen v. Redward, 10 Hawn. 151, 157. "« Kellogg V. Howes, 81 Cal. 170, 175, 177, 22 Pac. Rep. 509, 6 L. R. A. 688. Subclaimants cannot acquire any riK'lits af^uinst tbe owner in viola- tion of the terms of tlie original valid contract: \Valsli v. McMenomy, 74 Cal. 356, 359, 16 Pac. Rep. 17; Bowen v. Aubrey, 22 Cal. 566, 568. See § 315, ante. Colorado. The right of the material-man to maintain a lien against the property depends entirely upon a contract, express or implied, with the owner of tlie realty, or an agreement between the owner and a contractor, under whom he can show a derivative right: Groth v. Stall], 3 Colo. App. 8, 30 Pac. Rep. 1051 (1889). Xevada. Contra: See Lonkey v. Cook, 15 Nev. 58; Hunter v. Truckee Lodge, 14 Nev. 24 (1875). See §S) 452 et seq., ante. Utah. See Morrison v. W'illard, 17 Utah 306, 53 Pac. Rep. 832, 70 Am. St. Rep. 784; Morrison v. Inter-Mountain S. Co., 14 Utah 201, 46 Pac. Rep. 1104. " Kee §§ 547 et seq., post. § 541 mechanics' liens. 496 to the contract will relieve him, to the extent of such pay- ment, from any claim or lien of the subcontractor.®^ Unless the notice prescribed by statute ^^ is given in time to intercept moneys in the hands of the owner, or a claim of lien is duly filed, payment to the contractor in accordance with the terms of a non-statutory original contract will oper- ate as a complete discharge, so far as the owner is con- cerned.^" Portion not due until building completed. When a con- tract is made by the owner for the construction of a building, by the terms of which a portion of the contract price is not due until after the building is completed, and when materials have been furnished for and used in the construction, pre- sumably in view of such contract, and when, thereafter, and with notice thereof, the owner pays his contractor before the building is completed, and before the money is due, he is liable to subclaimants to the extent of the money thus pre- maturely paid. To hold otherwise would be to enable the owner to practise a fraud, and the contract, instead of being a chart for the direction of subclaimants, would become a delusion and a fraud. ^^ § 541. Same. Payment to subclaimants. Valid contract. Last payment. In the case of a statutory original contract, it was not intended that lien claimants should be compelled to rely on the good faith and honesty of the owner or con- tractor in devoting the last payment of twenty-five per cent to the payment of their claims, but that they should have the security afforded by a lien on the property until the claims *« Kellogg- V. Howes, 81 Cal. 170, 175, 22 Pac. Rep. 509, 6 L. R. A. 588, 11 Pac. Coast L. J. 589. See "Notice," §§547 et seq., post. »» Kerr's Cyc. Code Civ. Proc, § 1184. ^ Kerckhoff-Cuzner M. & L. Co. v. Cummings, 86 Cal. 22, 24 Pac. Rep. 814. Utah. See Morrison v. Willard, 17 Utah 306, 53 Pac. Rep. 832, 70 Am. St. Rep. 784. " Walsh V. McMenomy, 74 Cal. 356, 359, 16 Pac Rep. 17. See Valley L. Co. V. Struck, 146 Cal. 266, 80 Pac. Rep. 405. Oregon. Liability of owner for payments made by him, unless distributed among persons entitled to a lien, under Hill's Ann. Laws, § 3678: See Watson v. Noonday M. Co., 37 Oreg. 287, 60 Pac. Rep. 994, 996. 497 IMPROVEMENT CAUSED BY WHOM. § 542 were paid; and there is nothing in the statute to the effect that the owner shall be exonerated from the effect of his violation of the statute upon showing that he has paid out the entire contract price, pro rata, to the claimants of liens.**^ § 542. Same. Liability of owner under void contract. This subject has already been developed at some length."- and will be here briefly recapitulated. In reference to the pro- vision,*** making statutory original contracts void for failure to comply with the provisions of the section of the statute, the court has said : " ' No recovery shall be had thereon by either party.' In our judgment, this provision of the statute takes away entirely the basis upon which it was held, under earlier statutes, that a subcontractor could not recover, viz., that the owner could not be held to pay more than he had contracted to pay, or in other words, could not be compelled to pay twice for the same thing. This cannot be so under the present statute, where his contract is not recorded [filed]. The contract cannot be the measure of his liability, because there is no contract." The legislature, though it cannot compel the owner to pay more than he has contracted to pay, where the contract is valid, unless notified of the claims of subcontractors before payment to the contractor, yet has power to require a record of the contract as the condition of its validity, and to forbid any payments to the contractor as against the material-men and laborers, unless the contract is recorded.**^ " If the legislature had the power to say to the owner, If you pay the contractor after notice from the »2 Merced L. Co. v. BruschI (Cal. Sup., Nov. 29, 1907), 92 Pac. Rep. 844. *' See, g-eneraUy, §§319 et seq., ante; "Notice," §§547 et seq., post; "Cumulative Remedies," §§638 et seq.. post. Ultra vires. Board of education: See Morgan v. Board of Education, 136 Cal. 245, 247. 68 Pac. Rep. 703. See Brown v. Board of Education. 103 Cal. 534, 37 Pac. Rep. 503. " Kerr's Cyc. Code Civ. Proc, § 1183. »^ Kellogg V. Howes, 81 Cal. 170, 176, 22 Pac. Rep. 509, 6 L. R. A. 588. The act of 1862 did not make the original contract void for want of record, but the penalty was the subordination of the lien of the original contract. In further explanation of text, see §§ 319 et seq., ante. Mech. Liens — 32 § 543 mechanics' liexs. 498 subcontractor of his claim, you shall still be liable to the latter, it has the undoubted right to say to him, If you do not execute your contract in a certain form, and file it in the recorder's office, you shall be liable to material-men and laborers for the value of their material and labor. There is no hardship or injustice in this provision. The owner is only compelled to pay once for what he receives and retains the benefit of. He is not bound and has no right, as between him and subcontractors, to pay the contractor." ^^ § 543. Same. Void contract. Penal provision. The pro- vision of section eleven hundred and eighty-three,^^ avoiding the original contract under certain circumstances, is, how- ever, highly penal in its character, a violation of its mandates subjecting the owner to a liability for debts which he never agreed to pay, and for which he receives no benefit. A stat- ute which provides for making one person liable for the debts of another, and prescribes how and under what circumstances he shall be held thus liable, is penal in its character, and statutes creating a forfeiture and imposing a penalty ought to be strictly construed against the liability. Some doubt has been expressed whether this rule of construction, which obtained before the codes were adopted, is to be given its full force under the provisions of the code. But, however this may be, it is conceded that such statutes should not re- ceive a construction unduly favoring the imposition of a pen- alty or forfeiture ; and the rules governing such cases have been already stated. In the case of a statute which deals with the constitutional right of an owner of property to make contracts relating to its use and enjoyment, the restriction of the right can go only to the form of the contract, and cannot be extended by construction beyond what is expressed. ^^ »• KeUog-g- V. Howes, 81 Cal. 170, 177, 22 Pac. Rep. 509, 6 L. R. A. 588. »' Kerr's Cyc. Code Civ. Proo., S 1183. »s Snell V. Bradbury, 139 Cal. 379, 381, 382, 73 Pac. Rep. 150. See, generaHy, on this subject, Irvine v. McKeon, 23 Cal. 472, 474; Trumpler v. Bemerly, 39 Cal. 490; Ex parte Gutierrez, 45 Cal. 429: People V. Soto. 49 Cal. 67; Moore v. Lent. 81 Cal. 502, 506, 22 Pac. Rep. 875; Stimson M. Co. v." Braun, 136 Cal. 122, 125, 68 Pac. Rep. 481, 89 Am. St. Rep. 116, 57 L. R. A. 726. II 499 IMPROVEMENT CAUSED BY WHOM. §§ 544, 545 § 544. Same. Statute measure of liability under void con- tract. Notice by subelainiauts of an unfiled statutory original contract, which is therefore void, cannot affect their rights, the question not being one of notice, but of the validity of the contract ; nor are their liens subordinate to the provisions of such void contract ; for in such case the statute, and not the contract, measures the extent of the owner's liability."® § 545. Same. Personal liability to subclaimants under void contract. Notwithstanding the fact that section eleven hundred and eighty-three '°'^ states that the statutory original contract shall be void for failure of record, etc., and that in such case the labor done and materials furnished are deemed to have been done and furnished at the instance of the owner, and a lien is given to subclaimants for the value thereof, the owner is not personally liable therefor, in the absence of notice in the nature of a garnishment,-"^ the only remedy against him in such case being for the foreclosure of liens. "- »» Kellog-g V. Howes, 81 Cal. 170, 178, 22 Pac. Rep. 509. 6 L. R. A. 588, 11 Pac. Coast L. J. 589: Butterworth v. Levy, 104 Cal. 506. 510, 38 Pac. Rep. 897; WiHamette S. M. L. & M. Co. v. Los Angeles C. Co., 94 Cal. 229, 236, 240, 29 Pac. Rep. 629. See Giant P. Co. v. San Diego F. Co., 97 Cal. 263, 266, 32 Pac. Rep. 172. See "Contract," §§319 et seq., ante. "^ Kerr's Cyc. Code Civ. Proc., § 1183. "" See "Notice," §§ 547 et seq., post. "^^ Hubbard v. Lee (Cal. App., Oct. 11, 1907), 92 Pac. Rep. 744; Mc- Menomy v. White, 115 Cal. 339, 47 Pac. Rep. 109; Southern Cal. L. Co. V. Schmitt, 74 Cal. 625, 627, 16 Pac. Rep 516; Santa Clara V. M. & L. Co. V. Williams (Cal., Dec. 8, 1892), 31 Pac. Rep. 1128; Davies- Henderson L. Co. v. Gottschalk, 81 Cal. 641, 645, 22 Pac. Rep. 860; Kellogg V. Howes, 81 Cal. 170, 177, 22 Pac. Rep. 509, 6 L. R. A. 588; Giant P. Co. v. San Diego F. Co., 97 Cal. 263, 266, 32 Pac. Rep. 172; Madera F. & T. Co. v. Kendall, 120 Cal. 182, 184, 52 Pac. Rep. 304, 65 Am. St. Rep. 177; Marchant v. Hayes, 120 Cal. 137, 139, 52 Pac. Rep. 154; Macomber v. Bigelow, 123 Cal. 532, 56 Pac. Rep. 449, 126 Cal. 9, 14, 58 Pac. Rep. 312. Accordins to Kellogg v. Howen, 81 Cal. 170, 178, 22 Pac. Rep. 509, 6 L. R. A. 588, it was held in Giant P. Co. v. San Diego F. Co., 78 Cal. 193, 20 Pac. Rep. 419, "that the contract between the subcontractor and contractor for materials was valid, notwithstanding the original contract was void as between the parties to it. But the opinion in the case was so worded as to mislead in this respect, and it broadly stated that the contract, though wholly void, was not void, except as to the parties to it. . . . The court meant nothing more in that case tlian to hold that the material-man was entitled to a lien, not- withstanding the contract was not filed in the recorder's office. What was .said as to the contract remaining to mark the extent of the recovery of the lien-holders, etc., was outside of the real question § 546 mechanics' liens. 500 And the same rule applies to the person who caused the structure to be erected, although he was not the " owner," if he is not in privity with the claimant.^°^ § 546. Same. False representations by owner as to com- pletion of building. Where the owner does not file a notice of completion, and by his declarations intentionally misleads a claimant to believe that the building is not completed, and the claimant acts upon such belief, and then fails to file his claim within the statutory time after the actual completion, by reason thereof, the owner will be estopped to falsify such declaration ; but such estoppel is not the basis of the claim- ant's cause of action.^"* presented in the case, and should be modified. The extent of the material-man's recovery is not measured by the terms of the con- tract. On the contrary, the statute provides, in express terms, that, where the contract is not so recorded, the material-man shall have a lien for the value thereof": Davies-Henderson L. Co. v. Gottschalk, 81 Cal. 641, 644, 22 Pac. Rep. 860. Colorado. Purchaser of property, after delivery of materials, not personally liable: See Burleigh B. Co. v. ilerchant B. & B. Co., 13 Colo. App. 455, 59 Pac. Rep. 83, 85. "^ Marchant v. Hayes, 120 Cal. 137, 139, 52 Pac' Rep. 154. ^0* Hubbard v. Lee (Cal. App., Oct. 11, 1907), 92 Pac. Rep. 744. 501 LIABILITY AS FIXED BY NOTICE. § 547 CHAPTER XXVII. OWNER, EMPLOYER, OR PERSON CAUSING IMPROVEMENT TO BE MADE (CONTINUED). LIABILITY AS FIXED BY NOTICE. § 547. Scope of discussion. § 548. Notice to owner or employer. History. § 549. Statutory provision. § 550. Notice to owner, and claim of lien. Distinction and pur- poses. § 551. Notice to owner creating personal obligation. § 552. Notice to owner. Garnishment. § 553. Provision, when applicable. § 554. General rights upon service of notice. § 555. Same. Early statutes. § 556. Same. Under valid contract, generally. § 557. Same. Claim of lien as equivalent of notice to owner. § 558. Same. Valid statutory original contract. § 559. Same. Void statutory original contract. § 560. Same. Non-statutory original contract. § 561. Same. Effect of notice on payments already made or as- signed. § 562. Same. Payment by note. § 563. Same. Relation to provision as to premature payments. § 564. Same. Service of notice on public trustees. § 565. Time of giving notice. § 566. Joint contractors. Apportionment. § 567. Action on notice. § 568. Form and contents of notice. Construction. § 569. Same. Effect of several notices served. § 570. Same. Statutory requirements of notice. § 571. Same. Sufficiency of notice. § 547. Scope of discussion. In this chapter we shall con- sider the notice to be served upon the owner under section eleven hundred and eightj^-four/ its effect, and its require- ments. The general differences in form and purpose of the notice here discussed from those of the claim of lien to be filed with the recorder have already been pointed out at some length,- and reference should l)e made to other parts of this work for furtlier discussion of the subject. » Kerr'N Cje. Cojle Civ. Proc, § 1184. * See "Claim," !i§ 301 et seq., ante. § 548 mechanics' liens. 502 § 548. Notice to owner or employer.' History. In con- struing the word " owner," as used in the statute requiring the name of the " owner " to be inserted in the claim of lien, the supreme court has said : " The act of 1850 * . . . required the claimant to give notice in writing to the ' owner ' of the building on which his labor or materials had been expended. By the act of 1855 ^ . . . the claimant was required to file his claim in the recorder's office, and within five days there- after serve a copy thereof on the owner of the building, or his agent in case the owner resided out of the county, and if he had no agent, to post it on the building charged with the lien. In 1858 "... this act was amended by authorizing the copy of the notice to be left at the residence of the owner, or deposited in the post-office, directed to him, instead of being posted upon the building. In the act of 1862 ^ . . . the claimant was required to give a notice of the nature and ex- tent of his claim to the ' employer ' of the original contractor. The statute was again revised in 1868, and the act of that year ^ . . . contains substantially the present provisions of the code on this subject. Instead of requiring the notice to be given to the ' employer ' of the original contractor, as was required by the act of 1862, this act brings the ' owner ' into connection with the claimant, as did the statutes prior to 1862, and, instead of requiring that the notice of claim be personally served upon him, authorizes it to be filed for record with the county recorder. By the act of 1862, the notice was to be given to the ' employer ' of the original con- tractor, irrespective of any interest that he might then have ' See, g-eneraUy, Stlmson v. Dunham, 146 Cal. 281, 283, 79 Pac. Rep. 968: Kruse v. WMlson, 3 Cal. App. 91. 84 Pac. Rep. 442. Kxeesslve claim in notice of claim to o^vner of lien for materials furnished to the contractor, lield not to preclude a recovery of the amount actually due, where the claim was made in good faith: Stran- dell V. Moran (Wash., June 2. 1908), 95 Pac. Rep. 1106. Sufficient signature to notice. Where claimant was doingr busi- ness as "A. S., agent," a signature to a claim was simply, "A. S.": held to be a sufficient signature, in an action on contractor's bond to recover for materials furnished in repairing sidewalks: Id. * Stats. 1850, p. 212, § 2. ' Stats. 1855, p. 157, § 3. • Stats. 1858, p. 225. ' Stats. 1862, p. 385, §"5. » Stats. 1868, p. 589. 503 LIABILITY AS FIXED BY NOTICE. § 549 in the property, and the restoration of the term ' owner ' in 1868 indicates that the legislature deemed that notice to the employer might not be sufficient if such employer was not also the owner." ® § 549. Statutory provision. The California Code of Civil Procedure originally made no provision for any notice to the owner, except the recorded claim of lien, and the code con- tinued in this coudition until the enactment of section eleven hundred and eighty-four,^° in sul)stantially its present form, in 1885, when personal notice to the owner was again pro- vided for, in addition to the recorded notice. The provision was again amended in 1887, so far as this subject is con- cerned, as follows : " Any of the persons mentioned in section eleven hundred and eighty-three, except the contractor, may at any time give to the reputed ^^ owner a written notice that they have performed labor or furnished materials, or both, to the contractor, or other person acting by authority of the reputed owner, or that they have agreed to do so, stating in general terms the kind of labor and materials, and the name of the person to or for whom the same was done or furnished, or both, and the amount in value, as near as may be, of that already done or furnished, or both. Such notice may be given by delivering the same to the reputed owner personally, or by leaving it at his residence or place of business, with some person in charge, or by delivering it to his architects, or by leaving it at their residence or place of business, with some person in charge, or by posting it in a conspicuous » Corbett v. Chambers, 109 Cal. 178, 181, 41 Pac. Rep. 873. Act of 18C8, it is to be noted, however, provided only for the recorded notice, and not for the notice to the owner of the character discussed in this section. "' Kerr's Cye. Code Civ. Proe., § 1184. " The uinendnient inserted the %vord "reputed" before the word "owner," wlierever it occurs in tlie section. It is to be noted, in reference to this change, that the statute contemplates a lien upon the fund in the hands of the employer which is independent of the lien upon the property, which can only be created by the owner thereof, or through his agent, actual or ostensible, or through estoppel. See "Constitutional Aspects," §§34 et seq., ante; "Estoppel," SS 469 et seq., ante; "Agency," §§572 et seq., ante. Utah. Compare act of 1890, § 12, permitting statement of intention to furnisli materials, etc.: Morrison v. Carey-Lombard Co., 9 Utah 70, 33 Pac. Rep. 238. § 550 mechanics' liens. 504 place upon the mining claim or improvement.^^ No such notice shall be invalid by reason of any defect of form, pro- vided it is sufficient to inform the reputed owner of the substantial matters herein provided for, or to put him upon inquiry as to such matters.^^ Upon such notice being given, it shall be the duty of the person who con- tracted with the contractor ^* to, and he shall, withhold from his contractor, or from any other person acting under such reputed owner, and to whom by said notice the said labor or materials, or both, have been furnished, or agreed to be furnished, sufficient money due, or that may become due to such contractor, or other person,^^ to answer such claim and any lien that may be filed therefor for record under this chapter, including counsel fees not exceeding one hundred dollars in each case,^** besides reasonable costs provided for in this chapter." ^^ § 550. Notice to owner, and claim of lien. Distinction and purposes. This notice to the owner or employer, pro- vided for in the statute, is not the claim of lien that is to be " Tlie section, as It stood in 18S5, enumerated as the objects upon which the notice mig'ht be posted, " mining claim, building, wharf, bridge, ditch, flume, aqueduct, tunnel, fence, machinery, railroad, wagon-road, or other structure." " The words " reputed," before owner, and " or to put him upon inquiry as to such matters," were not in the provision of 1885. " The provision of 1885 contained the word "owner," instead of the clause, " person who contracted with the contractor." *^ The section, in 1885, contained the provision, "all money due or that may become due to such contractor or other person, or sufH- cient of such money to answer," etc. ^•^ The provision of 1885 read, "including costs and counsel fees provided for in this chapter." The provision as to counsel fees, in the present statute, was declared unconstitutional: See § 40, ante. " Tlie amendment of 1887, so far as relates to this subject, also omitted from the end of the provision the following: "until such notice is by writing withdrawn; and all moneys paid thereafter by the owner to the contractor, or such other person, while such notice is in force, shall for the purpose of all liens of all persons, except that of the contractor, be deemed a payment prior to the time when the same was due within the meaning of and subject to the provisions of this section": See Stimson v. Dunham, C, H. Co., 146 Cal. 281, 79 Pac. Rep. 168. Coloratlo. The notice to the owner of the intention to file a claim under the act of 1893 i-s for the owner's benefit, and he alone can raise objection, if it is not done: Small v. Foley, 8 Colo. App. 435, 47 Pac. Rep. 64. 505" LIABILITY AS FIXED BY NOTICE. § 550 recorded.^^ It has already been seen that the object of the recorded claim of lien is twofold, namely: 1. To give notice to the owner and others interested; and 2. To perfect and consummate the lien on the realty.^" The object and the effect of the noti:o to the owner, pro- vided for in section eleven hundred and eighty-four,-" differ in some vital particulars from those of the claim of lien, and the provision just quoted has introduced into the statute an element in some respects similar to, but in other respects essentially different from, the provisions in preceding stat- utes relating to personal notice to the owner. It has been said that " the main object of giving the personal notice of the claim to the owner of the building is to aft'ect him with notice of the lien, and to afford him an opportunity to protect himself against the same in his dealings Avith the original contractor." ^^ It is the object of both the " claim " and the " notice " to affect the owner with notice, and to warn him not to make payment to the contractor, but to create a *' fund," to the extent of which the claimant may go upon the property to " Jewell V. McKay, 82 Cal. 144. 149, 23 Pac. Rep. 139. Itemized account not required in notice to owner: See Heston v. Martin, 11 Cal. 41; Brennan v. Swasey. 16 Cal. 141, 76 Am. Deo. 507; Selden v. Meeks, 17 Cal. 131; Davis v. Livingston, 29 Cal. 283; Hicks v. Murray, 43 Cal. 522; Jewell v. McKay, 82 Cal. 144. 151, 23 Pac. Rep. 139; Lef twitch L. Co. v. Florence Mut. B. L. & S. Assoc, 104 Ala. 584, 594, 18 So. Rep. 48; Nichols v. Culver, 51 Conn. 179; Taylor v. Nether- wood, 91 Va. 88, 93, 20 S. E. Rep. 509. " Kellogg V. Howes, 81 Cal. 170, 179, 22 Pac. Rep. 509, 6 L. R. A. 588, 11 Pac. Coast L. J. 589. See §§ 361 et seq., ante. Colorado. Act of 1881 required both notices: Greeley Co. v. Harris, 12 Colo. 226, 20 Pac. Rep. 764; Sayre-Newton L. Co. v. Park, 4 Colo. App. 482, 36 Pac. Rep. 445; Denver H. Co. v. Croke, 4 Colo. App. 530, 36 Pac. Rep. 624 (1883). As to record of affidavit that owner was unknown: Id. S. See Schradsky v. Dunklee, 9 Colo. App. 394, 48 Pac. Rep. 666; Rice v. Car- michael, 4 Colo. App. 84, 34 Pac. Rep. 1010. =" Kerr's Cyc. Code Civ. Proc, § 1184. " Corbett v. ChambL-rs, 109 Cal. 178, 182, 41 Pac. Rep. 873. In this able opinion, tlie learned justice does not refer to tlie fact that the statute then in force also provided for the personal notice to the owner here discussed. See " Nature and Object of Claim," §§ 362, 365, ante. Colorado. Rice v. Carmichael, 4 Colo. App. 84, 34 Pac. Rep. 1010 (1889). The owner at the time of notice is the one to receive it: Id., p. 88. § 551 mechanics' liens. 506 enforce his lien ; but furthermore, the object of the " notice to the owner " is to create a larger fund by an earlier notice than would be given by the recorded claim of lien, which, for obvious reasons, elsewhere discussed,-- would in most cases be filed after many payments had been made to the con- tractor. The " notice to the owner," therefore, is a measure of extra precaution on the claimant's part, and it is optional with him to give it or not.^^ § 551. Notice to owner creating personal obligation. While the claim of lien is necessary to perfect and consum- mate the lien on the property, the " notice to the owner " or employer may create and perfect a personal obligation, independently of any lien upon any property, in the nature of a garnishment.-* to the extent of the " fund," and this is ^ §§ 362 et seq., ante. But see Valley L. Co. v. Struck, 146 Cal. 266. 80 Pac. Rep. 405. =^ Jewell V. McKay, 82 Cal. 144, 149, 23 Pac. Rep. 139. Montana. Tlie notice to the owner provided by Rev. Stats., div. v, § 821, is essential: Whiteside v. Lebcher. 7 Mont. 473, 17 Pac. Rep. 548. The objection can be raised for the first time on appeal: Id. 2* Notice is in nature of garnislinient, and works an assigrnment pro tanto of the moneys due or to become due from the owner to the contractor: French v. Powell, 135 Cal. 636, 642, 68 Pac. Rep. 92. In W'eldon v. Superior Court, 138 Cal. 427, 429, 431, 71 Pac. Rep. 502, it was said: "Section 1184 of the Code of Civil Procedure is a part of the legislative sclieme devised, pursuant to the constitutional provision, to provide security to mechanics, laborers, material-men, and others mentioned, for their labor bestowed or materials fur- nished in the erection or improvement of buildings. The giving of the statutory notice does not establish a lien on the fund in the owner's hands, in the sense that the recorded lien is established on the buildings and land, under section 1183, but it does not follow that no sort of equitable lien may not be enforced against the fund referred to in section 1184. The section first deals witli the contract, and payments under it, and a reserved fund by the owner of twenty- flve per cent of the contract price, which he is to withhold for thirty-five days. Provision is made to protect any lien-holder, under section 1183, from payments by the owner before due under the con- tract. It is then provided that ' any of the persons mentioned in section 1183, except the contractor, may at any time give to the reputed owner a written notice that they have . . . furnished ma- terials.' . . . " Tlie effect tliat may be gi^en to tliis section [eleven hundred and eighty-four of the Code of Civil Procedure] does not depend upon the lien provided for in section 1183. Whether the notice may result in establishing an equitable garnishment or assignment, or confers an equitable lien, or is a form of equitable subrogation regulated by statute, as it has been variously termed, this court has said: 'The right to control and direct the funds remaining in the hands of the 507 LIABILITY AS FIXED BY NOTICE. § 552 a vital distinction between the two. Notice to the owner or employer, therefore, has been provided for by the statute, upon the theory of a " fund," and the proceeding to enforce the lien upon the " fund," as distinct from a suit to foreclose a lien upon the " property," necessarily implies a personal lial)ility of the emploj'er to the extent of the " fund." ^^ § 552. Notice to owner. Garnishment.-*^ Under some early statutes, as pointed out in the preceding section, a personal notice to the owner was provided for, and the right given by reason of such notice was, in its nature, an attachment or garnishment without suit.-^ This was intended to prevent litigation, by substituting such a cheap, easy, owner is as distinct and independent as the right to file and enforce a lien. It is a remedy entirely disconnected from and additional to the remedy by lien upon the building-, . . . which should be regarded with favor by the court': Bates v. Santa Barbara County, 90 CaL 543, 27 Pac. Rep. 438. See also First National Bank v. Ferris Irr. Dist., 107 Cal. 55, 40 Pac. Rep. 45; Bianchi v. Hughes, 124 CaL 24, 56 Pac. Rep. 610. "In Bianehl v. Hughes, supra, it was said: 'This right to garnish the moneys of the contractor in the hands of the owner is limited by the terms of the section to the persons mentioned in § 1183, and is but a cumulative or additional remedy given for the purpose of enforcing in another mode the right for which, by § 1183, a lien is authorized.' Doubtless, Swinford, the material-man, might have brought his action, on the law side of the court, against Weldon, the contractor, and served the ordinary garnishment on the owner, Maher, but he was not restricted to this remedy. An action at law would not lie against the owner alone, for his liability would depend on the liability of the contractor being first determined. Where the action is by the material-man against both the owner and the con- tractor, the owner might defend by showing that there were other claimants to the fund, who had served like notice on him, in excess of the amount in his hands, and this would necessitate an account- ing and an apportionment among the several claimants of the fund, after the liability of the contractor had been fixed. In most cases this very situation would arise. But such an action — and this is in fact such a one, except that there is but one claimant — would clearly be equitable. That the court should permit such proceeding to be brought, and thus determine in one action the rights of the parties and secure to the material-man the fruits of his notice, and compel the owner to perform the duty imposed upon him by statute. we feel quite sure": Weldon v. Superior Court, 138 Cal. 427, 429, 431, 71 Pac. Rep. 502. " See McCrea v. Johnson, 104 Cal. 224, 37 Pac. Rep. 902. -" See § 17, ante, and §§ 683 et seq., post. 2' Cahoon v. Levy, 6 Cal. 295, 297, 65 Am.. Dec. 515 (1850); Davis v. Livingston, 29 Cal. 283, 287. See McAlpin v. Duncan, 16 Cal. 126, 128 (1858); Kellogg v. Howes, 81 Cal. 170, 172, 22 Pac. Rep. 509, 6 L. R. A. 588; Valley L. Co. v. Struck, 146 Cal. 266, 274, 80 Pac. Rep. 405. § 552 mechanics' liens. 508 and expeditious means of attaching in the hands of the owner or employer any moneys due from him to the eon- tractor.2* Besides the right given by the service of the notice upon the owner to enforce the lien upon the property, as above discussed, under the present statute, unlike prior statutes, the right to enforce the lien upon the " fund " is also given, independently of any lien upon the property.-® In this connection, the supreme court has said: "Upon receipt of the notice the owner becomes liable as on garnish- ment or attachment.^° ' It is a form of equitable subroga- tion regulated by statute.' ^^ The rights of plaintiffs do not depend upon the legality of the contract. Whether it was void or valid, the contractor and subcontractor will be held to be the agent of the owner for the purposes of the law, and neither the owner nor the other can assert a want of privity between himself and the laborer or material-man. The right of plaintiffs to recover does not depend upon their =» Cahoon v. Levy, 6 Cal. 295, 297; Davis v. Livingston, 29 Cal. 283, 287; see McAlpin v. Duncan. 16 Cal. 126, 128. » Knowles v. Joost, 13 Cal. 620, 621 (1856); Cahoon v. Levy, 6 Cal. 295, 297, 65 Am. Dec. 515 (1856>. jVotice under early statutes. Such notice, however, did not, under the early statutes, create a personal liability, but a liability only throug-h the intervention of the lien upon the property: Davis v. Living-ston, 29 Cal. 283, 287. And the lien attached from the time of such notice in the case of subclaimants, and from the commence- ment of the work in the case of contractors, under the statute: the act being silent as to the time within which notice must be served: Cahoon v. Levy, 6 Cal. 295, 297, 65 Am. Dec. 515 (1856). Distinction bet^veen original contractors and subclaimants does not exist under the present statute: See Kerr's Cyc. Code Civ. Proc, § 1186; Davies-Henderson L. Co. v. Gottschalk, 81 Cal. 641, 648, 22 Pac. Rep. 860. Under act of 1855, the lien related back to the time that the work was commenced, and the right of creditors to attach a debt due from the owner to the contractor before notice of the claim of the sub- contractor was subordinated to the latter, where the work was com- menced before such garnishment: Tuttle v. Montford, 7 Cal. 358, 360. See "Priorities," §§486 et seq., ante. If tlie claimant failed to give notice, he was obliged to yield to the claim of the attaching creditor: Cahoon v. Levy, 6 Cal. 295, 297, 65 Am. Dec. 515 (1856). Colorado. Such notice need not be served by a contractor: Bitter V. Mouat L. & I. Co., 10 Colo. App. 307, 51 Pac. Rep. 519 (1883, 1889); nor upon a mortgagee: Id. =» Citing McAlpin v. 'Duncan. 16 Cal. 126, 128. " Citing Loonie v. Hogan, 9 N. Y. 43'5, 439, 440, 61 Am. Dec. 683; Prank v. Chosen Freeholders, 39 N. J. L. (10 Vr.) 3i7; 2 Jones on Liens, § 1285. 509 LIABILITY AS FIXED BY NOTICE. § 552 right to a lien. The equitable garnishment provided for by section eleven hundred and eighty-four of the Code of Civil Procedure is a cumulative remedy in ordinary cases. . . . The true spirit and merit of the statute is lost sight of in the contention that this remedy is a mere substitute for the remedy by lien, and that when the latter does not exist, the former cannot exist. The right to control and direct the funds remaining in the hands of the owner is as distinct and independent as the right to file and enforce a lien. It is a remedy entirely disconnected from and additional to the remedy by lien upon the building; and as the exceptional element which it is claimed arrests in this case the usual operation of the lien law does not exist, it is a remedy which should be regarded with favor by the court." " " Bates V. Santa Barbara County, 90 Cal. 543, 546, 27 Pac. Rep. 438; Board of Education v. Blake (Cal., Dec. 3, 1894), 38 Pac. Rep. 536. "The notice authorized by this section has the effect of a garnish- ment of the moneys coming- to the contractor which are in the hands of the owner, and, in the absence of any claim upon such moneys in behalf of other lien claimants, the owner will be liable to the material-man or subcontractor for the amount of the claim to the extent of his liability to the contractor. ... This right to garnish the moneys of the contractor in the hands of the owner is limited by tlie terms of the section to ' the persons inentioned in § 1183,' and is but a cumulative or additional remedy given for the purpose of enforcing in another mode the right for which, by § 1183, a lien is authorized upon the property upon which the labor has been per- formed, or for which the materials were furnished. It does not con- fer upon them a right to collect. from the owner any claim they may have against the contractor for labor and materials, other than is conferred elsewhere in the chapter, but provides that, instead of filing with the county recorder the notice of their claim of lien, and enforcing the same against the property, they may intercept the moneys in the hands of the owner to the extent of their claim, by giving him this notice. The remedy thus provided is limited to the cases in which, by § 1183, the property may be made subject to a lien, and the owner is not required, upon receiving such notice, to withhold from the contractor any moneys in his hands, except for materials furnished or labor pei'formed upon the property": Bianchi V. Hughes, 124 Cal. 24, 27, 56 Pac. Rep. 510. In this case the con- tract was void, and there was no valid claim of lien; and no lien on the fund was allowed for material furnished which was not affixed to the building. Under the act of 1862 it was held that the provision as to notice must be strictly complied with: Davis v. Livingston, 29 Cal. 283, 287. See " Construction," §§ 24 et seq., ante. On the subject of Karnishnieut, see Wilson v. Samuels. 100 Cal. 514, 519, 35 Pac. Rep. 148; French v. Powell, 135 Cal. 636, 640. 68 Pac. Rep. 92; Newport W. & L. Co. v. Drew, 125 Cal. 585, 589, 58 Pac. Rep. 187, di.siinKuiMhed in Valley L. Co. v. Struck, 146 Cal. 266, 271, 80 Pac. Rep. 405. §§553.554 mechanics' liens. 510 § 553. Provision, when applicable. The provision is con- fined to the " persons mentioned in section eleven hundred and eighty-three " of the Code of Civil Procedure,''^ and hence not for work on sidewalks, grading, etc., in incorpo- rated cities, under section eleven hundred and ninety-one.^* The provision as to notice, moreover, does not authorize a notice to the original contractor to intercept moneys due from him to his subcontractors.^^ In the case of a valid statutory original contract,^*' as in the case of non-statutory original contracts,^' heretofore discussed,^^ the claimant is entitled to a lien to an extent not exceeding the amount of the contract price in the hands of the owner when the claim of lien is filed, even if no notice is served on the owner. In the case of valid statutory original contracts, as in the case of other valid original con- tracts hereafter discussed, if the claimant desires to have further security for his labor or materials, it is necessary for him to give a notice to the owner or employer under section eleven hundred and eighty-four ^^ before any proper paj'ment is made to the contractor in accordance with the statute and contract. This not only insures his lien on the property to the extent of the moneys which the owner is notified to withhold from the contractor, but, as stated before, also gives him a lien upon the fund thus created in the hands of the employer, which may be enforced by a personal action against him. § 554. General rights upon service of notice. The plain- tiff in an action, founded upon service of notice to the owner ^ Bianchi v. Hughes, 124 Cal. 24, 56 Pac. Rep. 610. "* Kerr's Cyc. Code Civ. Proc. § 1191. 35 Kruse v. Wilson, 3 Cal. App. 91, 84 Pac. Rep. 442. See Bates v. Santa Barbara Co., 90 Cal. 543. 27 Pac. Rep. 438. ^ Harmon v. San Francisco & S. R. R. Co., 86 Cal. 617, 621, 25 Pac. Rep. 124. >• Gibson v. W^heeler, 110 Cal. 243, 245, 42 Pac. Rep. 810; Kerckhoff- Cuzner M. & L. Co. v. Cummings, 86 Cal. 22, 26, 24 Pac. Rep. 814; W'iggins V. Bridge, 70 Cal. 437, 439, 11 Pac. Rep. 754; Schmid v. Busch, 97 Cal. 184, 185, 31 Pac. Rep. 893; Turner v. Strenzel, 70 Cal. 28, 30, 11 Pac. Rep. 389 (apparently non-statutory original contrac*). See Rosen- kranz v. Wagner, 62 Cal. 151, 154. See §§ 258 et seq., ante. ^ See §§ 259 et seq., ante. »» Kerr's Cyc. Code Civ. Proc., § 1184. 511 LIABILITY AS FIXED BY NOTICE. § 555 or employer, under the statute, may obtain judgment for any deficiency there may be against the person to whom the materials were furnished or for whom the work Avas done.'"' The right given by the service of such notice, as against the contractor, does not depend upon the completion of the contract by the contractor.*^ Right personal. The right to give the notice is personal, and does not pass by assignment ; but it is thought that after the notice has been given, the assignee may enforce a lien upon the " fund," or against the owner or employer per- sonally.*- § 555. Same. Early statutes. Its effect, when served by the proper parties, and under certain conditions, is to create new rights and new liabilities,*^ not created by the record of a proper claim of lien. Prior to the amendments of ^larch 18, 1885, creating statutory original contracts, and providing for notice to the owner, and where the statute did not impose any liability upon the owner or his property by a mere notice to the owner by a subcontractor, there was no duty imposed upon the owner to retain any portion of the contract price to satisfy any lien to secure which a sub- contractor might subsequently file a claim of lien.** «> Bates V. Santa Barbara County, 90 Cal. 543, 27 Pac. Rep. 438. In McCrea v. Johnson, 104 Cal. 224, 226, 37 Pac. Rep. 902, this ques- tion of personal liability was referred to, but not decided; but in First Nat. Bank v. Perris Irr. Dist., 107 Cal. 55, 65, 40 Pac. Rep. 45, it was held that the material-man is not required to record notice of his claim in the offlce of the county recorder, as in the case of claims of lien ag-ainst the property or contractor, in order to avail himself of the remedy provided for by § 1184, Kerr's Cyc. Code Civ. Proe.. for in- tercepting- the contract price in the hands of the owner by notice, and the validity of such notice is not dependent upon proceeding's to enforce a lien upon the property affected by the contract, nor is such notice subject to the limitations provided for in § 1190 of same code, requiring: suit to be commenced within certain time to foreclose the lien upon the property. See notes, § 552, ante. " Russ L. & M. Co. V. Roggenkamp (Cal., Jan. 30, 1894), 35 Pac. Rep. 643. « McCrea v. Johnson, 104 Cal. 224, 37 Pac. Rep. 902. " McCrea v. Johnson, 104 Cal. 224, 226. 37 Pac. Rep. 902. " McCants v. Bush, 70 Cal. 125, 126, 11 Pac. Rep. 601. But see Rosenkranz v. W^agner, 62 Cal. 151, 154, and Renton v. Conley, 49 Cal. 185, 188. As to owner .safely making imyiiienLs as aK'ain.st third party not ■crvlng notice on liini. as provided in § 1184, Kerr's Cyc. Code Civ. Proc, see Valley L. Co. v. Struck, 146 Cal. 266, 270, 80 Pac. Rep. 405. §§ 556, 557 mechanics' liens. 512 § 556. Same. Under valid contract, generally. It has recently been held, in a case in the court of appeals, that, under a valid contract, notice to the owner to withhold money does not entitle claimant to a personal judgment against the owner for the sum due him in excess of the sum due the contractor, and that the equitable garnishment in fact is only to such sum as might be payable to the con- tractor after the extinguishment of the liens ; for the reason, as it is stated, that until such liens are extinguished no sum is payable from the owner to the contractor, and that where the claims exceed the amount of monej^ in the hands of the owner, there is nothing upon which the garnishment can operate.*^ § 557, Same. Claim of lien as equivalent of notice to owner. In case of a valid statutory original contract, the statute has provided when the last payment of " at least twenty-five per cent of the whole contract price " shall be made, namel.y, " at least thirty-five days after the final com- pletion of the contract," and has made other restrictions upon payments.^** If, therefore, a claim of lien is filed under such a contract, as required by law, it operates as a notice to the owner to at least the extent of the final twenty-five per cent; and such claim, so filed, by the express provisions of section eleven hundred and eighty-four,*'^ also operates to fix a lien to the extent of any other payments made prior to the time set forth in the section or in the contract, at least when they have been previously garnished by notice to the « Hughes Bros. v. Hoover, 3 Cal. App. 145, 84 Pac. Rep. 681, 683. This view of the law, however, is a contracted one, and not in conso- nance with the general nature and effec^ of the garnisliment, under the decisions of the supreme court. If there were no sum paj-able from the owner to the contractor, upon which the garnishment could operate, under a valid contract, the liens upon the property must also fail for lack of contractual liability upon the part of the owner to feed them. Unless the moneys impounded by the garnishment share in the fund, the amounts secured by the claims of lien, as against the fund, being decreed to be a lien upon the property, mucli difficulty will be found in -^conciling previous decisions of the supreme court, and great confusion will be introduced into what heretofore appeared to be a somewhat clearly adjudicated subject. " Kerr's Cyo. Code Civ. Proc., § 1184. See " Payments," §§ 269 et seq.. ante. « Kerr's Cyc. Code Civ. Proc, § 1184. 513 LL^BILITY AS FIXED BY NOTICE. § 558 owner.*® And the property of the owner is subject to the lien to that extent, whether the payment is made before or after the filing of the claim of lien, provided such payment be made before the final payment is legally due.*^ § 558. Same. Valid statutory original contract. In con- nection with the subject discussed in the last section, the supreme court has said: " The [statutory original] contract must be so made as to require payments to be made in instal- ments, twenty-five per cent of which must be payable at least thirty-five days after final completion of the work and contract. When such a contract is filed for record, it is notice that payments are to be made as therein provided for. If the twenty-five per cent, wdiich must be withheld until after the claim of lien is filed, is sufficient to pay his claim, the material-man need not give the personal notice provided for, and thereby stop the other payments. If such last instalment will not be sufiicient, he may give the necessary notice, which compels the owner to withhold other payments. But if the contract is not filed in the recorder's office, it is not only void by the express terms of the statute, but he has no notice of the amount of payments to be made, or w^hen they will fall due, or at what time he is required to give the personal notice. As a penalty for not affording him this means of knowledge by filing such a contract as is recpiirod by the statute, the ow-ner is deemed to have contracted for the material, so far as the right to the lien is concerned, and his property is bound for the value of such material. It seems to us that the language of the statute, and its object and purpose in this respect, are too plain to need construc- tion." «° *« See Valley L. Co. v. Struck, 146 Cal. 266, 80 Pac. Rep. 405. Tliis last is probably applicable to all original contracts. See " Payments," §§ 269 et seq.; §§ 251 et seq. ; §§ 540 et seq., ante. . <» Reed v. Norton, 90 Cal. 590, 602, 26 I'ac. Rep. 767, 27 Id. 426; Davies-Henderson L. Co. v. Gottschalk, 81 Cal. 641, 646, 22 Pac. Rep. 860. '•" Davies-Henderson L. Co. v. Gottschalk, 81 Cal. 641, 645, 22 Pac. Rep. 860. See "Valid Contract," §§315 et seq., §§556 et seq., ante; "Void Contract," §§ 319 et seq., ante. Mech. Liens — 33 § 559 mechanics' liens. 514 If nothing is due at the time of service,^^ or subsequently becomes due,°- under such valid contract, the claimant has no lien upon the property or fund, nor any claim against the owner, by reason of such service of notice merely.'"^ If the owner or employer makes payments in good faith, in accordance with the terms of a valid non-statutory contract, before receiving the notice, the contractor's subclaimants cannot enforce their liens, except for the balance, if any, due the contractor ; ^* and such payment is a complete discharge of the owner or emploj^er to that extent. ^^ Abandonment. Where the notice is once served on the owner, it is thought that a subsequent abandonment of a valid contract by the contractor will not affect the right of the claimant with reference to moneys due at the time of the service of the notice by him.^*^ § 559. Same. Void statutory original contract. In con- nection with void statutory original contracts, the court has 51 Wig-gins V. Bridge, 70 Cal. 437, 439, 11 Pac. Rep. 754. See Shuffle- ton V. Hill, 62 Cal. 483. 484, 6 West Coast Rep. 436; Gibson v. Wheeler, 110 Cal. 243, 245, 42 Pac. Rep. 810; Valley L. Co. v. Struck, 146 Cal. 266, 273, 274, 80 Pac. Rep. 405 (premature payment). '"- Wiggins V. Bridge, 70 Cal. 437, 438, 11 Pac. Rep. 754. See Deni- son V. Burrell, 119 Cal. 180, 183, 51 Pac. Rep. 1 (non-statutory original contract). »3 Henley v. Wadsworth, 38 Cal. 356, 360 (1862). '^* Wiggins V. Bridge, 70 Cal. 437, 438, 11 Pac. Rep. 757; Rosenkranz V. Wagner, 62 Cal. 151, 154: Dingley v. Greene, 54 Cal. 333, 335: Wells V. Cahn, 51 Cal. 423, 424; McAlpin v. Duncan, 16 Cal. 126, 128 (1858); Knowles v. Joost, 13 Cal. 620, 621 (1856). In Renton v. Conley, 49 Cal. 185, 187 (1868), it was stated that tlie notice might be "actual or constructive," the court saying (p. 188), " There is no express provision limiting the lien to the amount which may be owing from the owner to the contractor under the contract, in any case, even though the materials were furnished and the labor performed at the instance of the contractor alone." The statute in this case did not provide for any "actual notice," but only notice by record of claim of lien. But see McCants v. Bush, 70 Cal. 125, 126, 11 Pac. Rep. 601; Kellogg v. Howes, 81 Cal. 170, 177, 22 Pac. Rep. 509, 6 L. R. A. 588. See Latson v. Nelson (Cal.), 11 Pac. Coast L. J. 5S9; Tuttle v. Montford, 7 Cal. 358, 360 (1855). Xeva«la. Contra: Under act of 1875: Hunter v. Truckee Lodge. 14 Nev. 24: Lonkey v. Cook, 15 Nev. 58. See notes, §S 452 et seq., ante. °s McAlpin V. Duncan, 16 Cal. 126; Kerckhoff-Cuzner M. Co. v. Cum- min gs. 86 Cal. 22, 26, 24 Pac. Rep. 814. =« Russ L. Co. V. Roggenkamp (Cal'., Jan. 30, 1894), 35 Pac. Rep. 643. See "Abandonment," §§358 et seq., anC §§526 et seq., ante. 515 LIABILITY AS FIXED BY NOTICE. § 560 said: "It is further claimed by the respondent that the judgment of the court below was right, because it found that the personal notice provided for in section eleven hundred and eighty-four of the Code of Civil Procedure was not given. The notice referred to was not necessary in this case. Its only object and purpose, as indicated by the statute, is to compel the owner to withhold payments due the contractor, for the better security of the material-man. In this case there was no contract, and no payments to stop. Not only so, but the statute provides that, where the con- tract is not made as required and filed in the recorder's office, ' the labor done and materials furnished by all per- sons except the contractor, shall be deemed to have been done and furnished at the special instance of the owner, and they shall have a lien for the value thereof.' " "' § 560. Same. Non-statutory original contract. The notice to the owner or employer provided for in section eleven hundred and eightj^-four ^^ may also be given, where the " Davies-Henderson L. Co. v. Gottschalk, 81 CaL 641, 644, 22 Pac. Rep. 860, citing- Kellogg v. Howes, 81 CaL 170, 22 Pac. Rep. 509, 6 L. R. A. 588; Southern CaL L. Co. v. Schmitt, 74 Cal. 625, 16 Pac. Rep. 516. Kerr's Cyc. Code Civ. Proc., § 1183. See "Liability under Void Contract," §§319 et seq., §§559 et seq., ante. In diMous-siug: tlil.s subject, the court said: " If the contract is valid, then, under the present statute, notice must be given of his claim by the material-man or laborer, in order to reach the moneys due the con- tractor, and if he fails to give such notice, the owner is protected by the statute, as held in the cases above cited, decided under former statutes. [This language must be limited to certain cases of non- statutory original contracts, and probably the word " notice " is restricted in meaning to the recorded notice or claim of lien.] But. where there is no valid contract, this notice is unnecessary, because there are no payments to be stopped, and the statute itself is notice to the owner that he must not pay to the contractor": Kellogg v. Howes, 81 Cal. 170, 177, 22 Pac. Rep. 509, 6 L. R. A. 588. Notice served iipou owuer under void contract; personal judgment for amount due under the terms of such void contract: See Hubbard V. Lee (Cal. App., Oct. 11, 1907), 92 Pac. Rep. 744. rtali. Under the act of 1890 it was held that as the lien related back to the time of commencing to furnish the material, a payment made by tlie owner to the contractor subsequent thereto, but before the filing of the claim of lien, and without other notice, was at the peril of the owner: Carey-Lombard L. Co. v. Partridge, 10 Utah 322, 37 Pac. Rep. 572; Morrison v. Carey-Lombard L. Co., 9 Utah 70, 33 Pac. Rep. 238; Teahen v. Nelson, 6 Utali 363, 23 Pac. Rep. 764 (1888). ^ Kerr's Cyc. Code Civ. I'roc, § 1184. § 561 mechanics' liens. 516 contract is a non-statutory original contract, to intercept money in the hands of the reputed owner.^** The lien of sub- claimants upon the property of the owner can be enforced for all sums to be paid to the contractor, due under a non- statutory original contract when the notice is given,^° or to become due thereafter.®^ § 561. Same. Effect of notice on payments already made or assigned. The contractor cannot prevent the effect of this notice as to any payments that may mature after it is given, but its effect upon payments that have matured before it is given, which have not been made, is to be determined by the rights of the contractor in reference to them. If he is still entitled to demand their payment from the owner, such payment is intercepted by the notice; but if he has already- assigned them to a third party, the notice will be inoperative to prevent their payment to such third party."- In this connection, the court has said : " If the contractor, previous to the giving of the notice, has transferred to another, who takes the assignment for value, and without notice of the latent equities of the material-man, the amount then actually due and payable on the contract, there is then nothing either due or to become due to him, and there is no fund on which the notice can operate. It is true that the statute declares that a material-man, or other person deal- 5» Kerckhoff-Cuzner M. Co. v. Cummings, 86 Cal. 22, 25, 24 Pac. Rep. 814 (under $1,000). See Schmid v. Busch, 97 Cal. 184, 188, 31 Pac. Rep. 893. «« Blythe V. Poultney, 31 Cal. 233, 237; Whittier v. Hollister, 64 Cal. 283; Russ L. & M. Co. v. Garrettson, 87 Cal. 589, 594, 25 Pac. Rep. 747; Turner v. Strenzel, 70 Cal. 28, 30, 11 Pac. Rep. 389; Southern Cal. U Co. V. Jones, 133 Cal. 242, 245, 65 Pac. Rep. 378. Colorado. Jensen v. Brown, 2 Colo. 694; Mclntyre v. Barnes, 4 Colo. 285; Tabor v. Armstrong-, 9 Colo. 285, 12 Pac. Rep. 157 (Gen. Laws, § 1657; under the same original contract, but not for damages suf- fered by subcontractor). " Davis V. Livingston, 29 Cal. 283, 291 (1862); Blythe v. Poultney. 31 Cal. 233, 237; Whittier v. Hollister, 64 Cal. 283; First Nat. Bank v. Perris Irr. Dist., 107 Cal. 55, 61, 40 Pac. Rep. 45; Russ L. & M. Co. v. Garrettson, 87 Cal. 589, 594, 25 Pac. Rep. 747. Colorado. See Jensen v. Brown, 2 Colo. 694. "- Newport W. & .L. Co. v. Drew, 125 Cal. 585, 589, 58 Pac. Rep. 187. See Bates v. Santa Barbara County, 90 Cal. 543, 27 Pac. Rep. 438; First Nat. Bank v. Perris Irr. Dist.. 107 Cal. 55, 40 Pac. Rep. 45. Payment by owner not invalid as to lien-liolders who had not given previous notice of their claims, as provided In § 11S4, Kerr's Cyc. Code Civ. Proe.: Valley L. Co. v. Struck, 146 Cal. 266, 270, 80 Pac. Rep. 405. 517 LIABILITY AS FIXED BY NOTICE. § 561 ing with the contractor, may give the notice ' at any time ' ; but this expression must be construed in connection with the other provisions relating to the subject, and the general scheine of the code chapter of which they form a part. That chapter contemplates throughout that the privileges it allows to those Avho furnish material or labor for the construction of buildings and other improvements shall be exercised with promptitude, and so as not to hamper either the owner or the contractor, or those who deal with them, in the free dis- position of the property rights affected by or arising from the contract, beyond such time as may be convenient for the assertion of those privileges. It cannot be supposed that the legislature, Avhile requiring a portion of the contract price to be withheld from the contractor for the period of only thirty-five days after the completion of the contract, and making it incumbent on the material-man desirous of acquir- ing a lien to give public notice thereof by filing his verified claim therefor in the proper office within thirty days from the actual or presumed completion of the structure or other work, and to begin his action in the proper court for the enforcement of his claim within ninety days following the filing, yet designed that the same material-man may, Avithout imparting notice in any manner to the public, retain a latent lien for an indefinite time after completion of the contract, and after payment is due thereunder, on the com- pensation earned by the contractor, and that this secret equity ' may at any time ' be asserted, not only against the contractor, but also against those who have acquired his property interests therein by assignment or otherwise. We hold in this behalf: 1. That the right of the intervener to give the notice of its demand, and thus to charge the con- tract price in the hands of the owner, was not affected by any assignment made by the contractor until after the time when the demand assigned became due, — in this case upon the expiration of thirty-five days from the completion of the contract; 2. That the assignment made by the original contractor, the Silver Gate Manufacturing Company, to the ^tna Iron and Steel Company. l)efore the completion of the work, vested the latter company, prior to the expiration of thirty-five days from the date of such completion, with no § 562 mechanics' liens. 518 rights anywise different from or superior to those of the original contractor, nor even then, if such assignment was made as part of a mere substitution of the JEtna. company for the contractor in the original contract, — a matter on which the findings are not clear; 3. But that the assign- ment by the ^tna Iron and Steel Company to the plaintiff of the contract price, or the balance thereof, and notice to defendant of such assignment after the balance was due and payable under the terms of the contract, cut off all rights of the intervener in the funds so assigned, and any notice afterward given by the intervener was futile, provided the plaintiff took such assignment for value, and without notice of the unpaid demand of the intervener. We think such proviso just ; if the plaintiff was a mere volunteer, or trustee for the JEitiia company, or did not render value for the assignment, there is no reason why it should not stand pre- cisely in the shoes of its assignor, subject to any right of the intervener, within the doctrine asserted in Bush v. Lathrop."^ This qualification of the immunity of th'^ assignee is com- monly found in the authorities which, with the better reason, as it seems to us, affirm the right of the assignee, in good faith and for value, to take the subject of the assignment free from the latent equities of third persons." ^^ § 562. Same. Payment by note. If the transferee of a promissor,y note is an innocent purchaser for value, and without notice of the demands of the contractor's subclaim- ants, and the note is secured by an assignment of moneys to become due from the owner of the building, and such claim- ants give no notice to the owner until after the expiration of thirty-five days from the completion of the work, and until after such transfer of the note and security, the right of such transferee in the fund due from the owner is superior to that of the subclaimants."^ «3 Bush V. Lathrop, 22 N. Y. (8 Smith) 535. " First Nat. Bank v. Ferris Irr. Dist., 107 Cal. 55, 62-64, 40 Pac. Rep. 45 (statutory original contract), citiii§r Wright v. Levy, 12 Cal. 257, and other cases. And see Kerr's Cyc. Code Civ. Proc..'§§ 368, 440, and notes; Kerr's Cye. Civ. Code, § 14r)9. and note. But see discussion and criticism, § 595, post. «5 Perry v. Parrott, 135 Cal. 238, 245, 67 Pac. Rep. 144. 519 LIABILITY AS FIXED BY NOTICE. § 563 § 563. Same. Relation to provision as to premature pay- ments. It has been held, subject to several later criticisms, tliat the provision as to notice to the owner is entirely sepa- rate and distinct from the provision invalidating payments prematurely made ; that the proceeding under the notice is in the nature of a garnisliment, whereby there is impounded specific moneys due or thereafter to become due to the eon- tractor; and that the provision of the law as to premature payments is not made to depend upon the giving of or fail- ure to give notice."'* It has also been held that, under a valid contract, where payments are made by the owner of the building to the con- tractor before the same are due, it is not necessary, in order that the subclaimant may recover the sums paid, that he should have given the notice required by section eleven hun- dred and eighty-four ; "^ the court saying, " The posit-ion of respondents is based upon another portion of section eleven hundred and eighty-four,"^ which allows a notice to be served upon the reputed owner by a material-man or other creditor, which has the effect of stopping the payment of further moneys to the contractor. That provision of the law is not applicable here, and in no way weakens or limits the effect to be given the other part of the same section which we have already quoted";"^ i. e., that a premature payment shall be deemed as if rot made, etc. It is to be noted that the supreme court of California has finally stated that premature payments are not invalid as against lien- holders who have given no notice to the owner, except as to «° Sweeney v. Meyer, 124 CaL 512, 514, 57 Pac. Rep. 479. Criticism of doctrine. But this latter doctrine was subjected to criticism in the concurring opinion of Shaw, J. (Beatty, C. J., and An- gellotti, J., concurring), in Valley L. Co. v. Struck, 146 Cal. 266, 80 Pac. Rep. 405, holding that Sweeney v. Meyer, supra, should be overruled, and that only in cases where notice had been served upon the owner before premature paj'nient, except in the case of the final payment of twenty-flve per cent thirty-five days after completion of tlie building, required by the statute, such premature payments were not affected by the mere filing of a claim of lien without such notice. See Dunlop V. Kennedy (Cal., Aug. 31, 1893), 34 Pac. Rep. 92 (rehearing granted). " Kerr's Cyc. Corte Civ. Proc, § 1184. •* Kerr'.«f Cyc. Code Civ. Proc, § 1184. '■" Ganalil v. Weir, liio Cal. :;37, 239, 62 Pac. Rep. 512 (question of pleading). § 563 mechanics' liens. 520 the final instalment of twenty-iive per cent to be paid in thirty-five days after the completion of the building, as required by the statute. ^*^ Waiving certificate of architect. Under the rule last stated, the owner has no power to waive a certificate, which was one of the conditions of maturity of the payment, as against claimants of liens who had garnished the payment by notice, but the premature payment was not invalid as against lien-holders who had given no such notice.'^'^ '» VaUey L. Co. v. Struck, 146 Cal. 266, 272, 80 Pac. Rep. 405, per Shaw, J. (Beatty, C. J., and Angellotti, J., concurring- in liolding- that Sweeney v. Meyer, 124 Cal. 512, 57 Pac. Rep. 479, should be overruled). " Valley L. Co. v. Struck, 146 Cal. 266, 272, 80 Pac. Rep. 405, per Shaw, J. (Beatty, C. J., and Angellotti, J., concurring in holding- that Sweeney v. Meyer, 124 Cal. 512, 57 Pac. Rep. 479, should be overruled on this point). In the concurring opinion of Shaw, J., in Valley L,. Co. v. Struck, 146 Cal. 266, 274, 80 Pac. Rep. 405, quoting from the dissenting opinion of Beatty, C. J., filed in the former hearing in bank, it was said: "By tlie mechanic's-lien law the owner and contractor are authoi-ized to stipulate for the payment of three fourths of the contract price of a building by instalments to become due, at their option, at or before its completion, but no notice of lien can be recorded until after com- pletion, and consequently no lien can be acquired upon tlie building- by merely recording notice for any greater portion of tlie contract price than the twenty-five per cent, which must be made payable not less than thirty-five days after completion, unless the owner and con- tractor voluntarily agree that a larger proportion may be retained until after the time when the lien notices may be recorded. But the law also provides for personal and actual notice to the owner by a laborer or material-inan of liis claim, at, or at any time after, the time it accrues, irrespective of the completion of the building, and this notice operates as a garnishment to intercept the payment of any instalment of the contract price not then due by the terms of the con- tract, compelling the owner to withhold a sufficient sum to answer sucli claiin and costs. Upon due service of such notice, the owner becomes liable to the extent of all money to become due iipon the contract, and in the event that a notice of lien Is afterwards duly recorded by the claimant, his building- is subjected to a lien as security for the just amount of the claim, and that notwithstanding he may have made a premature payment upon the contract price before the receipt of notice. But this is as far as the statute goes. It does not make the premature payment of an intermediate instalment of the contract price invalid as to all material-men, laborers, etc., but only when the effect of allowing- its validity would be to defeat, diminish, or discharge a lien in favor of persons other than the contractor. So that if it is an essential condition prerequisite to the creation of a lien upon the building for any portion of a particular instalment of the contract price, written notice of the claim should be served upon the owner before payment is due, and if no sucli notice is served, a pre- mature payment of such instalment does not defeat, diminish, or dis- charge the lien, — there is no lien to . defeat or impair, — and the failure of the security is due, not to the fault of the owner, but to the default of the claimant who has omitted to take the step made essen- 521 LIABILITY AS FIXED BY NOTICE. § 564 § 564. Same. Service of notice on public trustees. And although a public body, such as a board of education, is not subject to garnishment," yet a material-man or mechanic who furnishes materials to or does work for the contractor on a county building, upon giving written notice to the county of his claim as provided by section eleven hundred and eighty-four," acquires, as against the contractor, a prior right of payment of his claim from the unpaid portion of the contract price ; the court saying, " It is the only tial by the stat^ite for the acquisition of a lien. His lien has not been discharged or defeated or diminished by the premature payment, be- cause it has never come into existence. If a payment is due on the 19th, and a material-man desires, for his better security, to have it withheld by the owner, he must give notice of his claim before the 19th, or the owner may make payment with perfect assurance that he will not have to pay again on account of the material-man's claim, as the latter well knows. But if lie, with this knowledge, omits to give the notice [the present case], what right then has he to complain that payment was made on the 17th? He is no worse off than he would have been if it had not been made till the 19th. His notice of lien subsequently filed attaches to the last payment due thirty-five days after completion of the building, but, according to the Intent no less than the langiiage of the statute, It does not attach to any previous instalment not garnished by actual notice before it fell due. " The decision in Sweeney v. Meyer resulted, in my opinion, from the assumption that the provisions of the statute as to notice to tlie owner and invalidity of premature payments are separate and inde- pendent. They are indeed separate, as every clause of every statute is necessarily separate from other clauses, but that they are independent I cannot admit. They are related parts of one general scheme, de- signed to be complete and harmonious, operating for the benefit of laborers, mechanics, and material-men, without injustice to owners of property. Upon each class a duty is imposed, and the performance of this duty is the condition of enjoying the rights conferred. To intercept a payment and secure a lien, notice of the claim must be served before payment is due. To give the amplest opportunity for service of notice, the owner must make no payment until it is due according to the terms of his recorded contract. If he makes a pre- mature payment, he does it at the risk of having to pay twice, but he incurs this liability only in case of a timely notice. If no notice is given, there is no lien, and to hold the payment valid harms no one." " Board of Education v. Blake (Cal., Dec. 3, 1894), 3c. Code Civ. Proc., § 1184. § 564 mechanics' liens. 522 remedy provided by the lien law, because the pursuit of the remedy by foreclosure would involve the taking of build- ings which, on the ground of public policy and public neces- sity, are exempt from execution and forced sale. And this remedy is one which does not contravene any principle of public policy. It operates as an assignment pro tanto of the money due by the owner to the contractor, and in no way affects the public buildings. The fund is in the treasury, and the statute justly provides that instead of paying it to the contractor for the work which he agreed to do, but which the laborer has actuallj" performed, the owner shall pay it to the latter." '^^ A notice given to trustees of a state building, by a sub- claimant, is equivalent to a garnishment of the moneys pay- able to the contractor, and operates as a notice to intercept any payments that may mature after it is given, as well as those then due ; but its effect on payments that have matured before it is given, but which have not been made, is deter- mined by the rights of the contractor in reference thereto. If he is still entitled to demand their payment from the owner or trustees, such payment is intercepted by the notice ; if, however, he has already assigned them to a third party, the notice will be inoperative by reason of their payment t:» such party.'^^ Besides the remedy on the bond, given under act of March 27. 1897,'*^ by a contractor on state and other public build- ings, laborers and material-men have recourse also to section eleven hundred and eighty-four,^^ by which they get an additional security by lien upon the fund, although not upon the land.''^ '* Bates V. Santa Barbara Co., 90 Cal. 543, 547, 27 Pac. Rep. 4.'?8; Ru.ss L. & M. Co. V. Rogg-enkamp tCal., Jan. 30, 1894), 35 Pac. Rep. 643. For statute.s in relation to public -work, see § 102, ante, and " Sure- ties," §§ 605 et seq., post. Colorado. Control by equity of funds in tlie hands of the board, due to contractor: See Florman v. School Dist., 6 Colo. 319, 40 Pac. Rep. 469. " Newport W^ & L. Co. v. Drew, 125 Cal. 585, 58 Pac. Rep. 187. '« Stats. 1897, p. 201. " Kerr's Cyc. Code (Div. Proc, § 1184. '8 French v. Powell, 135 Cal. 636, 642,' 68 Pac. Rep. 92. 523 LIABILITY AS FIXED BY NOTICE. §§ 565-567 § 565. Time of giving notice. The subclaimant may give the notice to the reputed owner " at any time " before the money becomes due according to the contract, and no assign- ment made by the contractor of the amount to become afterwards due to him in the course of performance of the contract can, before the arrival of the time of payment, defeat the right of the subclaimant to give the statutory notice and obtain the benefit thereof; otherwise the provis- ions of the statute in this regard could in most instances be evaded.''* And the notice may be effectually given, so long as money is owing to the contractor himself, although the time when it should have been paid has passed,*" and as long as the fund is in the hands of the owner, reputed owner, or employer, and even after the expiration of the thirtj'-five days after the completion of a valid statutory original con- tract.*^ § 566. Joint contractors. Apportionment. Where joint contractors, under a non-statutory original contract, appor- tion the compensation under the contract between them- selves, by an arrangement to which the owner is not a party, it is no defense that when notice was served there was nothing due the contractor to whom the materials were furnished under the apportionment agreed upon.*- § 567. Action on notice. By the service on the owner of the notice prescribed \}y the statute, the claimant has a lien or charge upon the fund or amount due and unpaid to the contractor, remaining in the owner's hands, and it may be reached by an equitable suit, without a lien upon the land, and a writ of review will not lie against the superior court in such case, even though the amount claimed is less than three hundred dollars.*^ " First Nat. Bank. v. Ferris Irr. Dist., 107 Cal. 55, 61, 40 Pac. Rep. 45; French v. Powell, 135 Cal. 636, 642, 68 Pac. Rep. 92. *" First Nat. Bank v. Ferris Irr. Dist., supra; Board of Education v. Blake (Cal., Dec. 3, 1894), 38 Pac. Rep. 536. See §§ 585 et seq., post. " Board of Education v. Blake (Cal., Dec. 3, 1894), 38 Pac. Rep. 536. "- Davis V. Livingston, 29 Cal. 283, 290 (the court lays stress upon the fact that the employer gave a verbal assent without consider- ation). " Weldon v. Superior Court, 138 Cal. 427. 71 Pac. Rep. 502. §§ 568, 569 mechanics' liens. 524 § 568. Form and contents of notice.^* Construction. The notices required to be given under the statute have regard to substance, rather than to form,^^ being remedies which should be favored by the courts.^*' And " no such notice shall be invalid by reason of any defect of form, provided it is sufficient to inform the reputed owner of the substan- tial matters herein provided for, or to put him on inquiry as to such matters." " vj 569. Same. Effect of several notices served. Under a previous statute it was held unnecessary to return the notice, or to object to its sufficiency at the time it was served, nor did a failure to pursue either of these courses operate as a waiver of all defects. The notice is in invitum, looking to an attachment under the statute, and the question is not as to what the owner failed to do, but as to what the claimant did; and it was held that if the subclaimant served more than one notice for the same account, the several notices could not be considered together for the purpose of deter- mining the sufficiency of notice to the owner, but that each must stand on its own merits, and a lien will not exist by reason of such notice, nor the OAvner be affected by notice, unless one notice is sufficient. ^^ Each notice was considered " Comitare: "Claim of Lien," §§ 370 et seq., post. Colorado. Service (act of 18S9) by giving copy to clerk of super- intendent of corporation is not service upon the owner, agent, or trustee, required by act: Union Pac. R. Co. v. Davidson, 21 Colo. 93, 39 Pac. Pcop. 1095. " Corbett v. Chambers, 109 Cal. 178, 184, 41 Pac. Rep. 873. See McGinty v. Morgan, 122 Cal. 103, 105, 54 Pac. Rep. 392; Continental B. & L. Assoc. V. Hutton, 144 Cal. 609, 611, 78 Pac. Rep. 21. *« Bates V. Santa Barbara Co., 90 Cal. 543, 27 Pac. Rep. 438; Board of Education v. Blake (Cal., Dec. 3, 1894), 38 Pac. Rep. 536. " Kerr's Cyc. Code Civ. Proc., § 1184. Under act of 186^ it was held that the provision as to the notice must be strictly complied with, there being no provision as to con- struction: Davis v. Livingston, 29 Cal. 283, 287. See " Construction," §§ 24 et seq., §§ 371 et seq., ante. The present provision as to notice, it should be borne in mind, has an essentially different object, in part, as fully discussed in § 550, ante. It would seem that, as in the case ot the claim of lien, nothing need be inserted in the notice except what is required by the statute: See Davis V. Livingston, 29 Cal. 283, 288. See also "Claim of Lien," §§ 361 et seq., ante. ^ Davis V. Livingston, 29 Cal. 283, 288 (under act of 1862, requir- ing written notice to the employer of the original contractor of the nature and extent of their claims against the original contractor or his assigns, over and above all payments, etc.). 525 LIABILITY AS FIXED BY NOTICE. § 570 absolutely, and not relatively under the act, and hence error in a previous notice did not vitiate a subsequent notice.'*'* How far these rules are applicable to section eleven hun- dred and eighty-four ^° does not appear. The provision of this section, that if the notice is sufficient to put the owner " upon inquiry as to such matters," the statute is satisfied, seems to modify the doctrines just stated. § 570. Same. Statutory requirements of notice. The five requirements of the notice, under section eleven hundred and eighty-four,**^ will be considered in order. 1. That the claimant has " performed labor or furnished materials, or both, to the contractor, or other person acting by authority of the reputed owner, or that they have agreed to do so." It was held, under the act of 1862, that the want of signature to the notice vitiated the notice, even if it purported, in the body of the notice, to come from the claim- ant.'-'- But as such a notice may be sufficient to put the owner " upon inquiry " under the present provision, as shown above, it may be doubted whether this ruling will be followed. 2. " In general terms the kind of labor and materials." Where the notice states in general terms the kind of mate- rials, it is sufficient to satisfy this provision.®^ 3. " The name of the person to or for whom the same Avas done or furnished, or both." If the notice states that the «» Davis V. Livingston, 29 Cal. 283. »» Kerr's Cye. Code Civ. Proe., § 1184. »> Kerr's Cye. Code Civ. Proc., § 1184. " Davis V. Livingston, 29 Cal. 283, 288. It was said that it was not shown to be in the claimant's handwriting-, "and if that fact had appeared, no authorities are adduced to show that the want of a sig- nature would have been cured thereby." The statute, however, did require the notice to be signed. »3 Russ L. & M. Co. V. Garrettson, 87 Cal. 589, .594, 25 Pac. Rep. 747. Under act of 1S(J2 it was held that tlie notice was not required to state the particular character of the materials furnished, nor that the materials were used in constructing a building, nor of what the mate- rials named in the notice consisted: Davis v. Livingston, 29 Cal. 283, 288. The act of 1862 did not expressly require tlie character of the materials to be stated, but only the " nature and extent of tlie claim," which " may as well be understood witliout the aid of such details, as with it." The notice stated: "We have furnislied and supplied the following materials as hereinafter set forth for the erection," etc. but the materials were not " set forth " therein. See note following. § 571 mechanics' liens. 526 materials were furnished at the instance and request of the contractors, naming them, it is sufficient.^* 4. " The amount in value, as near as may be, of that already done or furnished, or both." The expression " amount in value " seems to mean the price or agreed value, in case where there is an agreed value. ''^ 5. If it states that " the amount agreed to be paid for all thereof " is a certain sum, or if it states the total price of the materials, it is sufficient.^® § 571. Same. Sufficiency of notice. Under the provision as to notice contained in section eleven hundred and eighty- four,^^ where the notice stated in general terms the kind of materials; that they were furnished at the instance and re- quest of the contractors, naming them; that the amount agreed to be paid for all thereof was a certain sum, — it was held sufficient.^^ «< Russ L. & M. Co. V. Garrettson, 87 Cal. 589, 594, 25 Pac. Rep. 747.. Under act of 18G2 it was held that if there are several contractors, the notice is sufficient if the name of one of them be given: Davis v. Living-ston, 29 Cal. 283, 289. "The failure to name the two co-con- tractors does not very clearly go to the ' nature of the claim ' [re- quired to be stated by the statute], and even if it does, it is but a false description, which is set right by the other statements in the notice": Russ L. & M. Co. v. Garrettson, supra. »= See Jewell v. McKay, 82 Cal. 144, 150, 23 Pac. Rep. 139 (dictum, so far as notice is concerned). »« Russ L. & M. Co. V. Garrettson, 87 Cal. 589, 594, 25 Pac. Rep. 747. See Davis v. Livingston, 29 Cal. 283, 287. See " Claim," §§ 375 et seq., ante. Oregon. Previous transfers of or liens upon the fund actually due to the contractor from a railroad company at the time notice is served under Laws 1889, p. 75, will taKe precedence over such notice: Coleman v. Oregonian R. Co., 25 Oreg. 2S6, 35 Pac. Rep. 656. Such notice attaches only for the amount actually due at the time such notice is served: Ban v. Columbia S. R. Co., 109 Fed. Rep. 499, 54 C. C. A. 407, reversing s. c. 109 Fed Rep. 499. 9' Kerr's Cyc. Ck>de Civ. Proc, § 1184. »8 Russ L. & M. Co. V. Garrettson, 87 Cal. 5S>9, 594, 25 Pac. Rep. 747. 527 AGENCY. § 572 CHAPTER XXVIII. AGENCY. § 572. General principles. Actual and ostensible agency. § 573. Agency by statutory estoppel. § 574. Same. Purpose. § 575. Same. Statutory provision. § 576. . Same. When contract is void. § 577. Person in possession as agent of owner. § 578. Same. Person working mine. § 579. Architect as agent. § 580. Presumption of agency raised. § 581. Undue extension to statutory agency of rules applicable only to common-law agency. § 582. Personal liability of agent. § 583. Agency to receive notice of claims of subclaimants. § 584. Principal bound by notice to agent. § 572. General principles. ^ Actual and ostensible agency. The general law of agency applies to the " owner," iude- ' See, generally, Renton v. Conley, 49 Cal. 185, 187; Gibson v. Wheeler, 110 Cal. 243, 244, 42 Pac. Rep. 810; Hines v. Miller, 122 Cal. 517, 55 Pac. Rep. 401; Reese v. Bald Mt. Consol. G. M. Co., 133 Cal. 285, 291, 65 Pac. Rep. 578. As to authority of agent to create meehanlc's lien, see 61 Am. Dec. 696. See "Constitutional Aspects," §§28 et seq., ante; "Estoppel," §§469 et seq., ante; "Pleading," §§695 et seq., post; "Evidence," §§779 et seq., post; "Parties," §§ 662 et seq., post. HiLsbaud as agent of ^vife: See Santa Cruz R. P. Co. v. Lyons, 117 Cal. 212, 48 Pac. Rep. 100'. 59 Am. St. Rep. 174. See notes 61 Am. Dec. 693; 83 Am. St. Rep. 518-524; 10 L. R. A. 33. Married woman'.*! property, -when subject to meciiauic's lien: See, generally, note 83 Am. St. Rep. 517. Oklalionia. Wife not personally liable, where husband enters into contract concerning her separate property: See Limerick v. Ketcham (Okl.), 87 Pac. Rep. 605 (under Stats. 1893, § 4527). Wife as agent of tlie liu.shanii: See Fulkerson v. Kilgore, 10 Okl. 655, 64 Pac. Rep. 5. Utah. Where the husband makes a contract as agent of the wife, or she expressly ratifies the contract as made, lien allowed; otherwise not, even thougli wife occupies the premises with her husband and knows the work is going on: Morrison v. Clark, 20 Utah 432, 59 Pac. Rep. 235, 77 Am. St. Rep. 924 (under Sess. Laws 1894). Washington. " The liusband is empowered to contract for the erection of buildings on the community real estate, and thus subject it to mechanics' liens": Douthitt v. MacCulsky, 11 Wash. 601, 606, 40 §§ 573, 574 mechanics' liens. 528 pendently of any statute.^ An agency is either actual or ostensible.^ An agency is actual when the agent is really employed by the principal.* An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent, who is not reallj^ employed by him.^ § 573. Agency by statutory estoppel. An ostensible agent may be said to be the agent of one against whom the equi- table doctrine of estoppel may be invoked. Mechanic's-lien statutes generally, for the purposes of the statute, create a new species of agency, which may be considered an agency by statutory estoppel, or, under certain circumstances, as the cases sometimes express it, a presumption of agency arises; by which is meant that a rule of evidence is established by the statute. It must be admitted, moreover, that some cases go almost to the point of making this presumption conclu- sive, and the adjudications are not in a satisfactory condi- tion. § 574. Same. Purpose. Section eleven hundred and eighty-three,*^ as suggested in the last preceding section, goes Pac. Rep. 186; Littell & S. Mfg. Co. v. Miller, 3 Wash. 480, 28 Pac. Rep. 1035. Husband, as agent of -wrife, contracting: tor construction on the separate property of wife: See Spears v. Lawrence, 10 Wash. 368, 38 Pac. Rep. 1049, 45 Am. St. Rep. 789. \Vliere it is not sho^vn that the ^vifc had any knovrledge of the con- tract made by her husband relative to her separate property, and the only proof tending- to show the husband's agency was the fact that the husband and wife had executed a mortgage upon certain lands, including the tract in controversy, which recited, among other things, that they thereby bound themselves to make improvements on said lands, and that the husband had told the plaintiffs they were borrowing money for the purpose of putting up a building, there Is insufficient proof of the husband's agency: Cattell v. Fergusson, 3 W^ash. 541, 28 Pac. Rep. 750. Husband not agent of owner: See Anderson v. Hilker, 38 Wash. 632, SO Pac. Rep. 848. But see Anderson v. Harper, 30 Wash. 378, 70 Pac. Rep. 965. 2 See "Claim of Lien," §385, ante. 3 Kerr's Cyc. Civ. Code, § 2298, and note. * Kerr's Cyc. Civ. Cqde, § 2299, and note. See also McClain v. Hutton, 131 Cal. .132, 141, 61 Pac. Rep. 273, 63 Id. 182, 622; Renton v. Monnier, 77 Cal. 449, 19 Pac. Rep. 820. = See Kerr's Cyc. Civ. Code, §§ 2300, 2317, and notes. « Kerr's Cyc. Code Civ. Proc, § 1183, as amended Stats. 1903, p. 84. 529 AGENCY. § 574 beyond the case of actual agency, and even beyond that of " ostensible " agency, and superimposes a presumption of special and peculiar statutory agenc^^ for the purposes of the chapter, which exists under the circumstances set forth in the statute ; nameh*, when certain persons enumerated have " charge of any mining, or work and labor performed in and about such mining claim or claims, or real property worked as a mine, or the construction ... of any building or other improvement as aforesaid, or of such mining claim or claims, either as lessee or under a working bond or con- tract thereon, with the privilege of purchase, or otherwise." ^ ' See McClain v. Hutton, 131 Cal. 132, 141, 61 Pac. Rep. 273, 63 Id. 182, 622. See " E.stoppel," §§ 469 et seq., ante. Colora«lo. See Laws 1893, § 1, p. 315. "Implied agent": See Chicag-o L. Co. v. Dillon, 13 Colo. App. 196, 56 Pac. Rep. 9S9. Laws 1893, ch. cxvii, S§ 1, 2, p. 315, held constitutional, although undertaking to make out of the contractor, who is an adverse party to the owner of the property, an agent of the owner: See Chicago L. Co. V. Newcomb, 19 Colo. App. 265, 74 Pac. Rep. 786, 789. \\'itliout exi»re.ss provision, the contractor would possess the powers of an agent: Id. Haivaii. The statute makes the contractor the agent of the owner against the wishes of the latter, but to a very limited extent only; namely, for the purpose of purchasing suitable materials to be put into the building, but not for the contractor's own benefit: Allen v. Redward, 10 Hawn. 151, 158. Montana. See Merrigan v. English, 9 Mont. 113, 22 Pac. Rep. 454, 5 I.. R. A. 837. New Mexico. See Post v. Miles, 7 N. M. 317, 34 Pac. Rep. 586. Oregon. Contractor " special " agent of owner, witli limited powers: Beach v. Stamper, 44 Oreg. 4, 74 Pac. Rep. 208, 102 Am. St. Rep. 597; Pitch v. Howitt. 32 Oreg. 396, 52 Pac. Rep. 192 (under Hill's Ann. Laws, §2699); Cooper Mfg. Co. v. Delahunt, 36 Oreg. 402, 51 Pac. Rep. 649. See Hunter v. Cordon, 32 Oreg. 443, 52 Pac. Rep. 182; Osborn v. Logus, 28 Oreg. 302, 319, 38 Pac. Rep. 190, 42 Pac. Rep. 997. Likewise under Hill's Ann. Code, § 3676, relating to grading, etc., in incorporated cities: Pilz v. Killingsworth, 20 Oreg. 432, 26 Pac. Rep. 305. Contractor as statutory aKcut of owner: Smith v. Wilcox, 4 4 Oreg. 323. 74 Pac. Rep. 70S, 75 Id. 710. Contractor and subcontractor not owner's agent to determine the value of materials furnished or labor done: Quackenbush v. Artesian L. Co., 47 Oreg. 303, 83 Pac. Rep. 787 (under Bellinger and Cotton's Ann. Codes and Stats., § 5640). See Cooper M. Co. v. Delahunt, 36 Oreg. 402, 51 Pac. Rep. 649, 60 Id. 1; Watson v. Noonday M. Co., 37 Oreg. 287, 60 Pac. Rep. 994, 996 (Hill's Ann. Laws, §3669); Fitch v. Howitt, 32 Oreg. 396, 52 Pac. Rep. 192. A subcontractor is one wlio lias entered Into a contract, express or Implied, for the performance of an act with the person who has already contracted for its performance: Smith v. Wilcox. 44 Oreg. 323, 74 Pac. Rep. 708. 75 Id. 710. Mech. Liens — 34 § 575 mechanics' liens. 530 It is created for the purpose, not of fixing a personal liability on the OAvner, but of binding his interest in the property.^ § 575. Same. Statutory provision. Section eleven hun- dred and eighty-three '"* provides : " Mechanics, . . . shall have a lien . . . for the value of such labor done and ma- jVo contractual privity bet^'ccn the oivner anVashington. See Kremer v. Walton, 16 Wash. 139, 47 Pac. Rep. 238, s. c. 11 W'ash. 120, 39 Pac. Rep. 374. " Goss V. Helbing, 77 Cal. 190, 19 Pac. Rep. 277. It is probable that the owner had knowledge of the management of the works by the purchaser, and is perhaps a case of aptual or ostensible agency. " Kerr's Cjc. Code Civ. Proc, § 1183. 533 AGENCY, § 579 owner,' it means the agent of the owner of the building, mining, or other improvement." ^•' Before the amendment of 1907, a person not expressly authorized by the owner of a mine to act in his behalf is not the constructive agent of the owner, unless he is a person having charge of " mining," as previously provided by the statute, that is, doing some work upon the mine itself, for the purpose of extracting ores, and is not merely in posses- sion under a contract by which he Avas empowered to make improvements and prosecute development-work thereon. He was required to be engaged in the actual work of mining, and the services contracted for by him must have been such as aided in such mining, in order to constitute the person in charge of the mining the agent of the owner to contract for such services, and in order to give a lien therefor against the mining claim. ^^ § 579. Architect as agent. When an architect has no other authority than is specially conferred upon him by a written " Reese v. Bald Mt. Consol. G. M. Co., 133 Cal. 285, 287, 65 Pac. Rep. 578. Alaska. A mere allegation that plaintiffs erected a structure at the Instance of one who was in possession of the land under a con- tract of purchase with the owner is an insufficient allegation that the same was constructed at the instance of the owner or his agent (under Civ. Code, §262): Russell v. Hayner, 2 Alas. 703 (Dig.), 130 Fed. Rep. 90, 64 C. C. A. 424. Arizona. Lease-holder not the agent of the lessor, under Rev. Stats., § 2280: Gates v. Fredericks, 52 Pac. Rep. 1118. See Bogan v. Roy, 86 Pac. Rep. 13, 15 (lessee of mine); Walter C. Hadley Co. v. Cummings, 7 Ariz. 258, 64 Pac. Rep. 443 (mill and hoisting-works); Grifhn v. Hurley, 7 Ariz. 399, 65 Pac. Rep. 147. Colorado. A vendor required to make improvements on the prop- erty, agent of the vendor: See Antlers Park R. M. Co. v. Cunning- ham, 29 Colo. 284, 68 Pac. Rep. 226; Shapleigh v. Hull, 21 Colo. 419, 41 Pac. Rep. 1108; Colorado I. W'. v. Taylor, 12 Colo. App. 451. 55 Pac. Rep. 942; Wilkins v. Abell, 26 Colo. 462, 58 Pac. Rep. 612; Little Valeria G. M. & M. Co. v. Ingersoll, 14 Colo. App. 240, 59 Pac. Rep. 970. Wasliin^on. The lessee is not the agent of the owner, within the statute; but otherwise where a lease contains provisions, in the nature of a building contract, authorizing the lessee to proceed with the construction of a building: Stetson-Post M. Co. v. Brown, 21 Wash. 619, 59 Pac. Rep. 507, 75 Am. St. Rep. 862; Kremer v. Walton, 11 Wash. 120, 39 Pac. Rep. 374. " Williams v. Hawley, 144 Cal. 97, 103, 77 Pac. Rep. 762. See Reese V. Bald Mt. Consol. G. M. Co., 133 Cal. 285, 287, 65 Pac. Rep. 578. New Mexico. Foreman in charge of mining, agent of the owner: Post V. Fleming, 10 N. M. 476, 62 Pac. Rep. 1087 (under Comp. Laws 1897, § 2217). § 580 mechanics' liens. 534 contract for the construction of a building, and such author- ity consists merelj' in seeing that the building is properly constructed according to the drawings and specifications, to certify to that effect, to sign and issue certificates for pro- gress payments, and to decide any dispute which may arise respecting the true construction and meaning of the draw- ings and specifications, there is no authority conferred upon the architect to receive notice of an assignment of the con- tract, such as would create constructive notice to the owner of the building thereby.^^ § 580. Presumption of agency raised. The provision of the statute under discussion only raises a presumption of agency, which may be rebutted.^^ Thus where the president of a corporation which owned the land visited the premises while certain repairs were going forward, and was then in- formed thereof, the corporation is prima facie charged with knowledge of the fact that the work was being done.^^ A person claiming to be the agent, and acting on the land as the agent, of the owner may bind the land and the interest of the owner, on the principle of estoppel ; -° but if the owner " Renton v. Monnier, 77 Cal. 449, 19 Pac. Rep. 820. See 1 Am. & Eng. Ann. Cas. 950. Idiilio. Architect as agent of the owner: See Huber v. St. Joseph's Hospital. 11 Idaho 631, 83 Pac. Rep. 768. Oregon. Architect as agent of owner to procure and approve bond: See WoUenberg- v. Sykes (Oreg.), 81 Pac. Rep. 148. 150. ^VashiIlgtoll. The mere fact that an architect was directed by the owner to go with the contractor and get a bond to be executed by the contractor did not authorize the architect to make any change in the contract: Sweeney v. JEltna. I. Co., 34 W^ash. 126, 74 Pac. Rep. 1057. IS Donohoe v. Trinity Consol. Co., 113 Cal. 119, 123, 45 Pac. Rep. 259; Jurgenson v. Diller, ll4 Cal. 491, 492, 46 Pac. Rep. 610, 55 Am. St. Rep. 83. See "Evidence," §§779 et seq., post. Evidence o£ agency: See Linck v. Johnson, 134 Cal. xix, 66 Pac. Rep. 674. Oregon. Title G. & T. Co. v. "W^renn, 35 Oreg. 62, 56 Pac. Rep. 271, 76 Am. St. Rep. 454. See Allen v. Rowe, 19 Oreg. 188. See §§ 469 et seq., ante, and Cross v. Tscharnig, 27 Oreg. 49. Washington. Agency a question of fact for the jury: Novelty M. Co. V. Heinzerling, 39 W>sh. 244, 81 Pac. Rep. 742. " Phelps V. Maxwell's Creek G. M. Co., 49 Cal. 336, 338. But see Ayers v. Green Gold M. Co.. 116 Cal. 333, 336, 48 Pac. Rep. 221. Washington. See Novelty M. Co. v. Heinzerling, 39 Wash. 244, 81 Pac. Rep. 742. 2» See "Estoppel," §§469 et seq., ante. Oregon. Compare: Harrisburg L. Co. v. Washburn, 29 Oreg. 150, 44 Pac. Rep. 390. 535 AGENCY. § 581 shows want of knowledge, and non-employment of the alleged agent, with a showing that he had exercised ordi- nary care in the premises, his interest is not bound ;-^ and knowledge by the claimant that the alleged agent had no authority to act for the owner will prevent the lien from coming into existence.-^ § 581. Undue extension to statutory agency of rules ap- plicable only to common-law agency. The doctrine of stat- utory agency seems, in a recent case,-^ however, to have been carried beyond the limits to which it was brought by the former decisions, which practically only furnish a rule of evidence, namely, a presumption; for it has been held that where a contractor (who deals at arm's-length with the owner of the building, there being no relation of trust be- tween them in the particular case) buys material and sues for a balance upon a quantum valebat, the contractor could not contract to pay one price for his articles purchased and =^1 Donohoe v. Trinity Consol. Co., 113 Cal. 119, 123, 45 Pac. Rep. 259. See Jurgenson v. Diller, 114 Cal. 491, 492, 46 Pac. Rep. 610, 55 Am. St. Rep. 83. See " Constitutional Aspects," §§ 28 et seq., ante. Idaho. A person unlawfully in possession is not tlie agent of the owner: Idaho G. M. Co. v. Winchell, 6 Idaho 729, 59 Pac. Rep. 533, 96 Am. St. Rep. 290. Xew Mexico. See Post v. Miles, 7 N. M. 317, 325, 335, 34 Pac. Rep. 586. Oregon. And so a mere stranger, who, by fraudulent representa- tions that he is the owner, induces a material-man to deliver material to the contractor, who is not a party to the fraud, cannot bind the owner as agent (under Hill's Code, §3669): Sellwood L. Co. v. Mon- nell, 26 Oreg. 267, 38 Pac. Rep. 66. ~ Jurgenson v. Diller, 114 Cal. 491, 492. 46 Pac. Rep. 610, 55 Am. St. Rep. 83; Ayers v. Green Gold M. Co., 116 Cal. 333, 336, 48 Pac. Rep. 221. Montana. So of a hiring by a partner, when claimant knew that the agreement had to be ratified by the other partners: Nolan v. Lovelock, 1 Mont. 224. ^ Kuhlman v. Burns, 117 Cal. 469, 49 Pac. Rep. 585 (void statutory original contract). There does not appear to be any reason why a contractor, who holds no relation of trust to the owner, could not, in suing on the implied contract, take advantage of a cheap purchase of materials by himself, although the price paid may be some evi- dence of the value. This doctrine leads logically to the result that no contractor should be permitted to make a profit on his contract. Of course, Where the original contractor is in reality an "agent" of the owner, as where the contract is to superintend the construction on a percentage basis, a relation of trust exists: See Booth v. Pen- dola, 88 Cal. 36, 41, 45. 23 Pac. Rep. 200. 24 Id. 714, 25 Id. 1101. Sec also $§ 118 et seq., ante. §§ 582-584 mechanics' liens. 536 then subject the defendant to pay him a larger price for the same articles, since, as it was said, the contractor was the " agent " of the owner, under section eleven hundred and eighty-three of the Code of Civil Procedure.^* § 582. Personal liability of agent. An express or actual agent of the owner is not personally liable to the claimants, under the general principles of the law of agency.-^ But, under the provision creating the statutory agency, the stat- utory agent may, under the general rules of law, be person- ally liable to his subclaimants.-® § 583. Agency to receive notice of claims of subclaimants. Besides the statutory agency to bind the owner's interest in the land by persons " having charge " of the work, discussed above, section eleven hundred and eighty-five -^ provides another species of agency, of a passive nature, to bind the owner, by receiving notice of claims of subclaimants.-^ § 584. Principal bound by notice to agent. The rule is well settled that notice to an agent of facts arising from or connected with the subject-matter of the agency is con- structive notice to the principal, when the notice comes to the agent while he is concerned for the principal, and in the course of the very transaction; but notice to an agent of facts not arising from or connected with such subject-matter is not notice to the principal, unless actually communicated to him.^^ 24 Kerr's Cyc. Code Civ. Proc., § 11 S3. '- Eaton V. Rocca, 75 Gal. 93, 97, 16 Pac. Rep. 529; Mclntyre v. Trautner, 63 Cal. 429, 431. Agent not personally liable: See Schindler v. Green (Cal. App., Aug. 14, 1905), 82 Pac. Rep. 341, and see s. c. 149 Cal. 752, 82 Pac. Rep. 631. -« See "Original Contractor," §§55, 65, ante. =1 Kerr's Cyc. Code Civ. Proc., § 1185. 2s See "Notice," §§547 et seq., ante. Kerr's Cyc. Code Civ. Proc, § 1187, provides for the occupation and use of a building by the owner's " representative " and the accept- ance thereof by his "agent." See "Completion," §§334 et seq., ante. 2» Renton v. Monnier, 77 Cal. 449, 19 Pac. Rep. 820. See Kerr's Cyc. Civ. Code, § 19, and note pars. 26, 27. I 537 THIRD PERSONS. §§ 585, 586 CHAPTER XXIX. THIRD PERSONS. § 585. Scope of discussion. § 586. Purchasers and other lien-holders. § 587. Same. Defective claim of lien as notice to bona fide third parties. § 588. Assignees. Assignment of inchoate right to lien. § 589. Same. Formalities of assignment. § 590. Same. Unaccepted order. § 591. Same. Assignment of debt necessary. § 592. Same. Separate assignments of debt and security. § 593. Same. Splitting demands. § 594. Same. Notice of assignment. § 595. Same. General rights of assignee. § 596. Same. Conditional acceptance. § 597. Same. Defenses arising subsequent to assignment. § 598. Same. Assignment to surety on contractor's bond. § 599. Same. Insolvency. Bankruptcy. § 600. Same. Premature payments. § 601. General creditors. Claimants losing lien. § 602. Same. Attachment or process. Materials. § 603. Same. Garnishment. § 604. Mortgagees. Obligation to advance moneys for construction. § 585. Scope of discussion. lu this and the following- chapter we shall briefly consider the rights and obligations of those who are not lien claimants, but who derive rights or have duties imposed upon them through lien-holders, such as assignees and sureties, and also the rights and obliga- tions of general creditors of those who are affected by the mechanic's-lien statute. § 586. Purchasers and other lien-holders. The rights of lien-holders, otlier than claimants, have been considered to some extent elsewhere.^ It has already been shown that persons dealing with the property during the progress of tlie ' See "Priorities," §§487 et seq., ante; and "Divestment of Lien," §§ 627 et seq., post. §§ 587, 588 mechanics' liens. 538 work are charged with notice of the claims of mechanics,^ and that purchasers take the property subject to such claims.^ Reference is made to another part of this work for a detailed discussion of this subject. § 587. Same. Defective claim of lien as notice to bona fide third parties. Section twelve hundred and three a, which is a new section added to the Code of Civil Procedure in 1907, provides that the lien is not invalidated unless an innocent third party without notice, direct or constructive, has, since the claim was filed, become the bona fide owner of the property liened upon, and the notice of claim was so deficient that it did not put the party upon further inquiry in any manner.* § 588. Assignees.' Assignment of inchoate right to lien. It has been shown that the right to create a lien on the prop-" = Crowell V. Gilmore, 13 Cal. 54, 56. 2 See § 4 90. ante. * Kerr's Cyc. Code Civ. Proc, § 1203a; Kerr's Stats, and Aiudts. 1906-07, p. 482. See "Mistake and Error in Claim," §§ 412 et seq., ante. ^ As to assignability of a niecliantc's lien, see notes 11 L. R. A. 740; 13 L. R. A. 704; 49 Am. St. Rep. 530. See § 23, ante. Coustruetion of assignment " suitject to conditions of original con- tract ": See Pacific R. M. Co. v. Englisli, 118 Cal. 123, 129, 50 Pac. Rep. 383. Reassignment to claimant of assigned claim: See Macomber v. Bigelow, 126 Cal. 9, 13, 58 Pac. Rep. 312. Failure to give notice of assignment, owing to confidence in as- signor: See Renton v. Monnier, 77 Cal. 449, 19 Pac. Rep. 820. Claim, under Kerr's Cyc. Code Civ. Proc, § 1203, subsequently declared unconstitutional, for damages against owner of property failing to take bond from contractor, within Kerr's Cyc. Code Civ. Proc, § 1458, declaring that a right arising out of an obligation is the property of the person to whom it is due, and maj' be transferred as such: See Gibbs v. Tally (Cal., Dec. 22, 1900), 63 Pac. Rep. 168, reversed 133 Cal. 373, 65 Pac. Rep. 970. See " Constitutional Aspects," § 39, ante. Colorado. Assignee of judgment: Empire L. & C. Co. v. Engley, 18 Colo. 388, 33 Pac. Rep. 153. Assignment of prior mechanic's lien to .subsequent mortgagee: Fitch V. Stallings, 5 Colo. App. 106, 38 Pac. Rep. 393. Assignee of o-»vner's laborer: Hanna v. Savings Bank, 3 Colo. App. 28, 31 Pac. Rep. 1020. Pleading assignment -of claim: See Eagle G. M. Co. v. Bryarly, 28 Colo. 262, 65 Pac. Rep. 52, 54; Rialto M. & M. Co. v. Lowell, 23 Colo. 253, 47 Pac. Rep. 263. 539 THIRD PERSONS. § 589 erty, or on the fund, is personal in California, and hence assignees have no right to perfect such liens, the lien being not yet in existence, although it is a general rule that the assignment of a debt carries with it the lieu by which it is secured."^ But the sale of the interest in a contract, by a partner to his copartners, is not within the rule that the right to create a lien cannot be assigned to a stranger to the transaction." After the lien is perfected, it may be assigned, and the assignee may foreclose the lien.'* § 589. Same. Formalities of assignment. The assign- ment of a mechanic's lieu, such lien being a charge upon the Nevada. Lien may be assigned: Skvrme v. Occidental M. Co., & Nev. 219. Oregon. See Title G. & T. Co. v. Wrenn, 35 Oreg. 62, 56 Pac. Rep. 271, 76 Am. St. Rep. 454. Owner, as assignee of the claim, "svill not be limited to tlie amount paid for tlie lien, if less than the face value, but may enforce it to the extent to which his assignor could do so: Id. 1-tali. Assignee of lien may foreclose: Culmer v. Clift, 14 Utah 2S6, 47 Pac. Rep. 85 (1896). \Va.sliington. Supplemental pleadings (assignee pendente lite): See Powell v. Nolan, 27 Wash. 318, 67 Pac. Rep. 712, 721. " Mills V. La Verne L. Co., 97 Cal. 254, 256, 32 Pac. Rep. 169, 33 Am. St. Rep. 168; McCrea v. Johnson, 104 Cal. 224, 225, 37 Pac. Rep. 902; Rauer v. Fay, 110 Cal. 361, 42 Pac. Rep. 902; Rauer v. Welsh (Cal., Dec. 10, 1895), 42 Pac. Rep. 904. But see Duncan v. Hawn, 104 Cal. 10, 14, 37 Pac. Rep. 626 (under threshing-macliine act, which does not require any act of claimant to perfect lien); Simons v. Webster, 108 Cal. 16, 19, 40 Pac. Rep. 1056 (filing claim by surviving partners). See "General Nature of Lien," §9, ante; "Notice," §§547 et seq., ante. L'nder the act of April 2(5, 18«2, § 5, the assignee of the laborer, etc., could give notice to tlie owner. It was claimed in Beatty v. Mills, 113 Cal. 312, 313, 45 Pac. Rep. 468, tliat an assignment of a claim for street- work, under Kerr's Cyc. Code Civ. Proc, § 1191, under a private contract, when the assignee filed the claim, rendered the lien invalid, but the point was not decided by the court. Montana. Mason v. Germaine, 1 Mont. 263, 272 (1865). Oregon. Brown v. Harper, 4 Oreg. 89 (decided in 1870). ' Simons v. Webster, 108 Cal. 16, 19, 40 Pac. Rep. 1056. Assignment of debt from iiurtuersliiii to one partner: See Gray V. Wells, 118 Cal. 11, 17, 50 Pac. Rep. 23. See "Nature of Lien," §9, ante; "Claimants," §§42 et seq,, ante. « Duncan v. Hawn, 104 Cal. 10, 14, 37 Pac. Rep. 626. See Marchant V. Hayes, 120 Cal. 137, 138, 52 Pac. Rep. 154. See "General Nature of Lien," §9, ante; and Ritter v. Stevenson, 7 Cal. 388, 389. Montana. Davis v. Bilsland, 85 U. S. (18 Wall.) 659, bk. 21 L. ed. 90!). Oregon. Brown v. Harper, 4 Oreg. 89. § 590 mechanics' liens. 540 land, can only be made in writing.^ A mere signing of the written assignment by the assignor, without delivery thereof to the assignee, is ineffectual to vest title to the sum assigned in the assignee. ^° Copartnership claim. Where a claim of lien is filed by a copartnership, and the account and lien are assigned in writing, made by one of the partners, in the name of the partnership, to himself individually, such assignment is sufficient, so far as the owner is concerned, especially where the other members of the firm raise no objection to the assignment. ^^ § 590. Same, Unaccepted order. Where it is plainly apparent from the evidence that the plaintiff was the assignee and owner of the contractor's claim, an unaccepted order, previously given by the contractor in favor of the plaintiff for such claim, does not amount to an assignment of the same, nor in any way affect the subsequent assignment of the whole claim to the plaintiff after the claim of lien was filed, and where the plaintiff testifies that there was no assignment to him, but a mere order, his statement ought to control, as the plaintiff is the only one who could be injured by holding that the order was not an assignment. ^- » Ritter v. Stevenson, 7 Cal. 3SS, 389. See Kerr's Cyc. Civ. Code, § 1091, and note; and Kerr's Cys. Code Civ. Proc., §§ 1971, 1973, and notes. Colorado. See Small v. Foley, 8 Colo. App. 446, 47 Pac. Rep. 64 (1889). " Ritter v. Stevenson, 7 Cal. 388, 389. Assignment of lien. Necessity for writing: See Curnow v. Happy Valley Blue Gravel & H. Co., 68 Cal. 262, 264. 9 Pac. Rep. 149; Patent Brick Co. v. Moore, 75 Cal. 205, 211, 16 Pac. Rep. 890. Oregon. Where the parties to an assignment testify that it was Intended to assign the lien so as to foreclose several liens in the same suit, the writing purporting to assign "our claim" against a person designated, and being made after the filing of the claim of lien, and prior to the commencement of the action, the assignment is good, as far as the owner is concerned: Nottingham v. McKendrick, 38 Oreg. 495, 63 Pac. Rep. 822, 57 Id. 195. " Pacific Mut. L. Ins. Co. v. Fisher, 109 Cal. 566, 570, 42 Pac. Rep. 154. " Wyman v. Hooker, 2 Cal. App. 36, 41, 83 Pac. Rep. 79. Assignment. Effective vrhen. Assignment made by contractor of amount due under contract for public building not effective until approval of estimates by superintendent, as required by contract, nor until final completion and acceptance of the work: See Newport W. & L. Co. V. Drew, 125 Cal. 585, 58 Pac. Rep. 187. 541 THIRD PERSONS. §§ 591-593 § 591. Same. Assignment of debt necessary. The lien will not pass, except by a transfer of the account ; and where the account was assigned with a verbal understanding that in case the assignee collects it, he will credit his claim with a portion thereof and return the balance to the assignor, and if nothing is received no sum is to be credited, it was held that the assignment was void, and that the assignee could not sue thereon in his own name.^^ § 592. Same. Separate assignments of debt and security. Where a note is assigned to one person, and the money due from the owner to the contractor is assigned to another person as security therefor, the latter holds the security as pledge-holder and trustee for the assignee of the note, and the former can and should enforce the collateral security for the benefit of his principal or assignee of the note, and the latter is, by equitable assignment, owner of the security.^* Title of assignee of security. Right to enforce. The per- son holding the security under such circumstances either takes the legal title of the security as pledge-holder or trustee for the assignee of the note, or takes no title what- ever. The assignment of moneys due cannot be used by the holder for his own benefit, but for that of the owner of the note, who can, as equitable assignee of the security, enforce the same, whether its holder takes title thereof or not.^^ § 593. Same. Splitting demands. It is not permissible for the building contractor to split his demand against the " Ritter v. Stevenson, 7 Cal. 388, 389. Colorado. Assignment of a claim carries witli it both the debt and the right to lien: Perkins v. Boyd, 16 Colo. App. 266. 65 Pac. Rep. 350, s. c. sup. ct. 86 Pac. Rep. 1045 (under Mills's Ann. Stats., § 2872e, 2d ed., §2894); and see Sprague I. Co. v. Mouat L. Co., 14 Colo. App.'lOT 60 Pac. Rep. 179, 182 (1883, 1889); Eagle G. M. Co. v. Bryarly ^g Colo 262. 65 Pac. Rep. 52, 54. AVyoiniag. A.ssignment of debt carries -nitli it every right and security available to the assignor as incident tliereto; and as against one who is given a lien upon property to secure a debt, due or to become due, it is not necessary, in a suit to foreclose the lien, to allege ownership of the property in the debtor: Ramsey v .Johnson 8 Wyo. 476, 58 Pac. Rep. 755, 80 Am. St. Rep. 948 (not a mechanic's- lien case). " Perry v. Parrott, 135 Cal. 238, 243, 67 Pac. Rep. 144. « Perry v. Parrott, 135 Cal. 238, 243, 67 Pac. Rep. 144. §§ 594, 595 mechanics' liens. 542 emplo3^er, and, by assignment of a portion thereof, impose upon the latter, without his consent, the legal obligation of paying the assignee." But the rule is otherwise if the owner promises to pay the contractor's orders.^^ § 594. Same. Notice of assignment. When the owner pays to the contractor moneys due under the original con- tract, before the former has notice of an earlier assignment of the contract, the owner is not liable to the assignee for the amount paid.^^ Notice to one who does not understand the English lan- guage. AYhen a contract is assigned, and one who cannot read nor write English is given notice thereof by simply being shown the notice written in English, without its being read to him or left with him, the notice given, in order to be effectual, should be sufficiently precise and complete enough to put the defendant fully on his guard as to the fact of such assignment, and he should understand it.^'* Questions of fact. Whether, under the circumstances, the notice was given or not, and if given, whether the defendant understood it, and it was sufficient to put him on his guard, or in the language of the code, to put a prudent man on inquiry, are questions of fact.^® § 595. Same. General rights of assignee. Generally speaking, the assignee has no higher rights than his assignor had.-° Thus, under a statutory original contract, where the original contractor makes an assignment of moneys due from the owner before the completion of the work, it vests in the assignee, prior to the expiration of thirty-five days from the date of the completion of the contract, no rights in any wise " Clancy v. Plover, 107 Cal. 272, 275, 40 Pac. Rep. 394; Pacific R. M. Co. V. English, 118 Cal. 123, 131, 50 Pac. Rep. 383. See § 533, ante. " Adams v. Burbank, 103 Cal. 646, 649, 37 Pac. Rep. 640; Clancy v. Plover, 107 Cal. 272, 275, 40 Pac. Rep. 394. See § 593, ante. " Renton v. Monnier, 77 Cal. 449, 19 Pac. Rep. 820. » Renton v. Monnier, 77 Cal. 449, 19 Pac. Rep. 820. 2° Pacific R. M. Co. v. English, 118 Cnl. 123, 128, 50 Pac. Rep. 383. See Johnson v. La Grave, 102 Cal. 324, 326. See " Notice," §§ 547 et seq., ante. 543 THIRD PERSONS. § ^^^ different from or superior to tliose of the original con- tractor.-^ Release prior to assignment. The assignee of an original contract, who performs work under it, takes it subject to the equities of third parties, and a writing, executed by the original contractor, releasing the owner from all claims under the contract, is admissible in evidence, although the assignee was unaware of such release when he took the assignment. ^^ Latent equities. It has been held that the assignee of a thing in action, who purchases for value, in good faith, takes it not subject to the latent equities of third persons of which he had no notice,-^ but the assignment is subject to equities in favor of the debtor. Cutting off rights of subclaimants. It has likewise been held that an assignment of the contract price, or the balance thereof, with notice of such assignment to the owner after the balance was due and payable under the terms of the original contract, cuts off all rights of lien claimants in the fund so assigned, and any notice afterwards given by such claimant is futile, provided the assignee took such assignment for value, and without notice of the unpaid demand of the claimant.-* In the case of statutory original contracts, how- ever, this rule is subject to the limitations imposed upon the final payment of twenty-five per cent, already considered in some detail.-' -' First Nat. Bank v. Ferris Irr. Dist., 107 Cal. 55, 6?., 40 Pac. Rep. 45. See Pohlman v. Wilcox, 146 Cal. 440, 80 Pac. Rep. 625. See '■ Notice," §§ 547 et seq., ante. '■'- Rauer v. Fay, 110 Cal. 361, 42 Pac. Rep. 902; Rauer v. Welsh (Cal., Dec. 10, 1895), 42 Pac. Rep. 904. ^VasIlington. Waiver of right to lien by contractor prior to as- signment thereof prevents assignee from enforcing lien: Kent L. Co. V. Ward, 37 Wash. 60, 79 Pac. Rep. 485. =>» First Nat. Bank v. Ferris Irr. Dist., 107 Cal. 55, 62, 64, 40 Pac. Rep. 45. See Wright v. Levy, 12 Cal. 257. See Kerr's Cye. Code Civ. Proc., SS 368, 440, and notes; Kerr's Cye. Civ. Code, § 1459, and note. See §§ 547 et seq., ante, and S 561. ante. =* First Nat. Bank v. Ferris Irr. Dist., 107 Cal. 55, 62. 64, 40 Pac. Rep. 45. See S§ 547 et seq., ante. See also Kerr's Cye. Civ. Code, § 1459, and note. " See S§ 274 et seq., and S§ 541, 563, ante. §§ 596, 597 mechanics' liens. 544 § 596. Same. Conditional acceptance. Where a subcon- tractor assigns all his interest in the last payment to be made to him by the original contractors under his subcontract for certain work on a structure, and such contractors promise to pay a certain sum on his orders when it should become due to him, and to hold it out of the last payment due to such subcontractor, the assignee cannot recover the amount assigned from the contractors, if the subcontractor does not perform his contract, and abandons it, as the promise is not absolute, but conditional upon the subcontractor's per- formance of his contract.-^ And when the contractor, upon failure of the subcontractor to carry out such contract, com- pletes the same at more than the subcontract price, such agreement for conditional payments cannot have the effect of rendering the conditional promise absolute, nor in any way affect the assignee of the subcontractor in the last pay- ment.-^ § 597. Same. Defenses arising subsequent to assignment. "Where trustees enter into a contract to build a schoolhouse, and issue an order to pay instalments payable to the con- tractor, and the architect makes an estimate, upon whicli the order was made, and the auditor was required to draw his warrant therefor upon the requisition of the county superin- tendent, and the order was assigned by the contractor in sat- isfaction of a prior debt in part, and as to the remainder for cash before notices of certain claims were served, equities or defenses not existing when the order was assigned and pre- sented for a warrant for payment do not affect the assignee, nor do any equities subsequently arising against the con- tractor in favor of the school district. Thus where the school district receives notice of sub- claimants' demands after the assignment and presentation of such order, no liability is incurred by the district, nor is its liability increased under the contract ; nor are the rights of the assignee affected thereby; and such assignee may demand payment, whenever there are funds applicable 2« Pohlman v. Wilcox, 146 Cal. 440, 442, 80 Pac. Rep. 625. « Pohlman v. Wilcox, 146 Cal. 440, 442, 80 Pac. Rep. 625. 545 THIRD PERSONS. §§598, 599 thereto, where the contractor subsequently commits a breach of the contract, even if increased expense is thereby incurred by the school district to complete the contract.-* § 598. Same. Assignment to surety on contractor's bond. The subject of the rights of sureties on the original con- tractor's bond will be considered in the following chapter, and their right to claim a lien, it will be observed, has been questioned. According to the general doctrine relative to sureties in California, it is held that while an assignment of a claim of lien to a surety on a contractor's bond that no lien should be filed does not estop the assignee from suing on the elaim,^^ yet he is under a legal obligation not to enforce a lien, which may be urged as a set-off or counterclaim. § 599. Same. Insolvency. Bankruptcy. Where the origi- nal contractor becomes insolvent, the mere presentation of a note made by him, and assigned by the payee to another person, the payee having also assigned the moneys due under a building contract, as security to the payee, and the payee having assigned such moneys to a further party, the mere presentation of the note is an unsecured claim against the estate of the insolvent, and the rejection of it, as having been secured by the assignment of the moneys due on the building contract, without further effort to enforce the note against the estate of the insolvent contractor, cannot preclude the enforcement, by the holder of the note, of the security of the contractor's demand against the owner of the building.-'^" =■'' Lons Beach School Dist. v. i^utg-c, 129 Cal. 409, 62 Pac. Rep. 36. Assignment of publio contract, with consent of surety and nninici- pality, not valid without consent of parties entitled to sue upon bond: See French v. Powell, 135 Cal. 636, 642, 68 Pac. Rep. 92. ='» Stimson M. Co. v. Riley (Cal., Dec. 20, 189.5), 42 Pac. Rep. 1072. See " Sureties," §§ 605 et seq., post. Hawnii. Assig-nment to material-man, by contractor, of all moneys payable under the contract, accepted by the owner, "subject to all the conditions of the contract," does not estop the material-man from enforcing a lien; the contract not being assigned, but only moneys payable under it. and the action being for the enforcement of a lien under the statute, and not for moneys payable under the terms of the contract: Allen v. Redward, 10 Hawn. 151, 157. 80 Perry v. Parrott, 135 Cal. 238, 244, 67 Pac. Rep. 144. Assignee of note of contractor filins claim ivitli assignee in insol- vency: See Perry v. Parrott, 135 Cal. 238, 67 Pac. Rep. 144. Mech. Liens — 35 §§ 600. 601 mechanics' liens. 546 § 600. Same. Premature payments. Premature payments amount to nothing, under certain circumstances, as against subclaimants, but, under other circumstances, or against other persons, such as assignees, they are payments in every sense of the word,^^ and the general principles of law relat- ing to assignments apply in such cases. § 601. General creditors. Claimants losing lien. This section and those following relate to the persons who have no lien upon the property or upon the fund. Where lien claimants are not entitled to enforce a lien upon the building, by not filing their claims of lien in time, or otherwise, they stand upon the same footing as general creditors,^^ and it is immaterial to them, and likewise to their assignees, whether any portion of the moneys due under the original contract was unpaid at the time the contractor abandons the contract, nor is it any concern of theirs whether a proper disposition of the unpaid portion of the contract price was made by the owner.^^ They are not concerned with the correctness or incorrectness of the findings of the court as to the liens of other plaintiffs, either in the lower court, or upon appeal from a personal judgment in their favor against the con- tractor.^* A contractor's trustee in bankruptcy, and the contractor's general assignee for the benefit of his creditors, so far as mechanics' liens are concerned, are alike: In re Grissler, 136 Fed. Rep. 754, 69 C. C. A. 406. As to the liens mentioned in the banlsruptcy act, giving higher rights to the trustee than to the bankrupt, mechanics' liens perfected by proper filing of the claim therefor, even if within four months of the commencement of bankruptcy proceedings, are not included: In re Grissler, 136 Fed. Rep. 754, 69 C. C. A. 406 (act July 1, 1898, ch. dxli, §67; 30 Stats, at L. 564; U. S. Comp. Stats. 1901, p. 3449; Fed. Stats. Ann., p. 688). Construction given by state courts as to preferential statutory claims, under statute for assignment for the benefit of creditors: See In re Grissler, 136 Fed. Rep. 754, 69 C. C. A. 406. and In re Roeber, 121 Fed. Rep. 449, 57 C. C. A. 565, 9 Am. Bank. Rep. 303. Bankruptcy. Buildings in course of erection by bankrupt. Lien claimants considered, in so far as they affect arnounts due from owners to bankrupt: See In re Hobbs & Co. (D. C, W. Va.), 145 Fed. Rep. 211. « Ganahl v. "^'eir, 130 Cal. 237, 239, 62 Pac. Rep. 512. 32 Johnson v. La Grave, 102 Cal. 324, 326, 36 Pac. Rep. 651; Pacific Mut. L. Ins. Co. V. Fisher, 106 Cal. 224, 234, 39 Pac. Rep. 758. 33 Johnson v. La Grave, 102 Cal. 324, 326, 36 Pac. Rep. 651. "■* Kennedy & Shaw L. Co. v. Priet, 113 Cal. 291, 293, 45 Pac. Rep. 336. See "Appeal," § 982, post. 547 THIRD PERSONS. § 601 Balance of fund after satisfaction of liens. "While they may recover a personal jiulgineut against the contractor to whom they furnished the materials, '^^ yet they cannot recover a judgment that the amount remaining due to the contractor from the owner, after all lien claims are satisfied, shall be distributed between them.^" A judgment against the original contractor, in favor of a claimant who had filed no claim of lien, providing that such claimant is entitled to have the debt satisfied out of any " residue " that may appear in the hands of the owner, and from the product of the sale of the property, after all lien claims have been satisfied, is erroneous, in so far as it directs such payment ; and if the word " residue " means surplus moneys due from the owner to the contractor after payment of all liens, this, also, is objectionable.'^ Judgment against owner. General creditors are not en- titled to a judgment for the unpaid portion of the purchase price against the owner ; ^* nor, in an action for the fore- closure of mechanics' liens, have they any recourse against the owner's property; nor, in the absence of privity, any personal judgment against him.^** Such persons are not deemed included in an offer of the owner to pay the amount due the contractor to the persons claiming to be lien-holders in proportion to their respective claims whenever the respective amount due to each lien- holder is determined.*'^ 3= Kennedy & Shaw L. Co. v. Priet, 113 Cal. 291, 293, 45 Pac. Rep. 336; Kennedy & Shaw L. Co. v. Dusenbery, 116 Cal. 124, 126, 47 Pac. Rep. 1008. •■" Kennedy & Shaw L. Co. v. Priet, 113 Cal. 291, 293, 45 Pac. Rep. 336, 337. ^' Hampton v. Christensen, 148 Cal. 729, 740, 84 Pac. Rep. 200. 3s Kennedy & Shaw L. Co. v. Dusenbery, 116 Cal. 124, 126, 47 Pac. Rep. 1008. =» Kennedy & Shaw L. Co. v. Priet, 115 Cal. 98, 99, 46 Pac. Rep. 903. And see Kennedy & Shaw L. Co. v. Dusenbery, 116 Cal. 124, 126, 47 Pac. Rep. 1008. *" Kennedy & Shaw L. Co. v. Priet, 115 Cal. 98, 99, 46 Pac. Rep. 903. See Kennedy & Shaw L. Co. v. Dusenbery, 116 Cal. 124, 126, 47 Pac. Rep. 1008. Utah. A mechanic'.s lien which has attached is not affected by Sess. I^aws 1892, ch. xxx, giving certain laborers a preferred claim upon attachment, etc.: Salt Lake L. Co. v. Ibex M. & S. Co., 15 Utah 440, 49 Pac. Rep. 768, 62 Am. St. Rep. 944. §§ 602, 603 mechanics' liens. 548 § 602, Same. Attachment or process. Materials. Sec- tion eleven hundred and ninety-six*^ provides: " Whenever materials shall have been furnished for use in the construc- tion, alteration, or repair of any building or other improve- ment, such materials shall not be subject to attachment, execution, or other legal process, to enforce any debt due by the purchaser of such materials, except a debt due for the purchase-money thereof, so long as in good faith the same are about to be applied to the construction, alteration, or repair of such building, mining claim, or other improve- ment." § 603. Same. Garnishment. It has been seen that a gen- eral creditor of the contractor who garnishes money due the contractor in the hands of the owner does not gain priority over the claimant, who, after such garnishment, serves notice on the owner of his claim for labor and materials, which relates back to a time prior to the garnishment.*- Where the subcontractor's material-man garnishes moneys due from the contractor to the subcontractor, and the con- tractor pays to the sheriff the amount due by him to the sub- contractor, the material-man can make no further demand upon the contractor.*^ Garnishment subsequent to lien. Where the garnishment of the general creditor is subsequent to the lien of claimant, and the owner appears in answer to the notice of garnish- ment and states that the claimant has filed a lien which has priority over the garnishment, the court should either discharge the owner from liability under the garnishment, or postpone decision until the claim of claimant is enforced, " Kerr's Cyc. Code Civ. Proc., § 1196. See Germania B. & L. Assoc. V. Wag-ner, 61 Cal. 349, 353. See "Provisional Remedies," §§645 et seq., post. AVashington. See Potvin v. Denny H. Co., 37 Wash. 323, 79 Pac. Rep. 940. ^- See "Priorities," §§486 et seq., ante; Board of Education v. Blake (Cal., Dec. 3, 1894), 38 Pac. Rep. 536. This case differs from Kennedy & Shaw L. Co. v. Priet, 115 Cal. 98, 99, 46 Pac. Rep. 903, 113 Cal. 291, 45 Pac. Rep. 336, and Kennedy & Shaw L. Co. v. Dusenbery, 116 Cal. 124, 126, 47 Pac. Rep. 1008, in that there was no garnishment in the latter cases. « Kruse v. Wilson, 3 Cal. App. 91, 84 Pac. Rep. 442. 549 THIRD PERSONS. § 604 and then any remainder in the hands of the owner will be justly subject to the claim of the garnishing creditor.** § 604. Mortgagees. Obligation to advance moneys for con- struction. The priority of a mortgage for future advances, executed by the owner for the purpose of securing money to erect a structure, has already been discussed.*^ As between the mortgagee and the mortgager, however, there is a marked distinction, recognized by the eases, between a payment of future advances which are optional with the mortgagee, and those which are obligatory for a definite sum agreed upon, for a sufficient consideration.*" Where a deed of trust or mortgage and a note of the owner are given to a mortgagee, they are sufficient consideration for a loan agreed upon, and the mortgagee is under an enforceable obligation to furnish the money as agreed.*^ " Tuttle V. Montford, 7 Cal. 358, 360 (1855). In Board of Education V. Blake (Cal.), 38 Pac. Rep. 536, the court ordered the balance of the money after satisfying the Hens to be paid over to the garnishing creditor, who had been interpleaded. See "Priorities," §§486 et seq., ante. *^ See " Priorities," §§ 486 et seq., ante. " liien secured by mortgage, deeds of trust, or otherwise, for ad- vances made or to be made for the construction of a building or otlier improvement on land, is ordinarily superior to a mechanic's lien sub- sequently attaching, although some of the money may have been advanced after the mechanic's lien attached": Valley L. Co. v. Wright, 2 Cal. App. 288, 293, 84 Pac. Rep. 58. See Piatt v. Griffith, 27 N. J. Eq! 207; Mutual L. Ins. Co. v. Walling, 51 N. J. Eq. 99, 26 Atl. Rep. 453. « Valley L. Co. v. Wright, 2 Cal. App. 288, 291, 84 Pac. Rep. 58. This distinction is stated in Savings & L. Soc. v. Burnett, 106 Cal. 514, 532, 533, 39 Pac. Rep. 922, wherein the court seems to regard Tapia v. Demartini, 77 Cal. 383. 19 Pac. Rep. 641, 11 Am. St. Rep. 2SS, as stating the rule as to optional advances, as also does Hall v. Glass, 123 Cal. 500, 56 Pac. Rep. 336, 69 Am. St. Rep. 77. Money loan a.sNociation lias agreed to furnisli, and for whicli a note and mortgage has been given, in no proper sense can be said to l)e future advances, as advances are regarded In the cases: Valley L. Co. V. Wright, supra. « Valley L. Co. v. Wright, 2 Cal. App. 288, 291, 84 Pac. Rep. 58. See §§ 497 et seq., a7ite. AVasliington. Home S. & L. Assoc, v. Burton, 20 Wash. 688, 56 Pac. Rep. 940, cited as autliority for ruling in Valley L. Co. v. Wright, supra. ^Vlle^e niortgaRce receives conveyance of mortgaged premises under an agreement that the lien shall remain intact, there is no merger: and hence general laborers' liens covering all the property of the company, acquired after the execution of such mortgage, did not take precedence of the mortgage lien, as the law is well settled tliat there is no merger of the mortgage when the mortgager conveys to the mortgagee, as against subsequent encumbrancers, where it would be inequital)le, or where the intention of the parties was other- wise: Fitch V. Applegate, 24 Wash. 25, 64 Pac. Rep. 147. 605 mechanics' liens. 550 CHAPTER XXX. THIRD PERSONS (CONTINUED). SURETIES. § 605.- Scope of chapter. § 606. Statutory requirement of contractor's bond. § 607. Same. Application of provision. § 608. Statutory bond. Formalities. § 609. Same. Statutory bond void. § 610. Same. Contract void. Bond valid. § 611. Same. Liability on statutory bond. § 612. Same. Statutory bond, when enforceable as a common-law obligation. § 613. Common-law bonds. Formalities. § 614. General rule of surety's liability. § 615. Original contract as basis of liability. § 616. Auditing accounts, as provided in contract. § 617. Construction of bond. § 618. Surety's rights. Notice. § 619. Surety as lien claimant. § 620. Surety under legal obligation not to foreclose lien. § 621. Obligee of bond destroying security of surety. § 622. Premature payments. Generally. § 623. Same. Intermediate instalments. § 624. Same. Final instalment. § 62.5. Liability of sureties. Damages. § 626. Bond of contractor on public work. § 605. Scope of chapter.^ The general subject of surety- ship will not be considered herein, but the title will be 1 See "Bond," §§ 281 et seq., ante; "Appeal," §§971 et seq.. post; "Cumulative Remedies." §638, post. Surety linishing building; after abandonment: See Green v. Cliffoid, 94 Gal. 49, 29 Pac. Rep. 331. Liability of .sureties on oontractor'.s bond to laborers* and material- men not entitled to a lien, when bond conditioned against liens or claims: See note 9 L. R. A. (N. S.) 889. Arizona. See, generally, Prescott Nat. Bank v. Head (Ariz., May 25, 1907), 90 Pac. Rep. 328, 330. Colorado. Sureties on bond for re'ease of attachment of moneys due contractor; consideration: See Schradsky v. Dunklee, 9 Colo. App. 394, 48 Pac. Rep. 666. • Oregon. No issue raised by answer -in action on contractor's bond: See Enterprise H. Co. v. Book (Oreg-., May 1, 1906), 85 Pac. Rep. 333, 334. 41 551 THIRD PERSONS SURETIES. § 606 treated only in so far as it relates to the bonds of contractors for the faithful performance of their contracts, and to stipu- lations against the filing of claims or liens against the em- ployer or his property. § 606. Statutory requirement of contractor's bond. It has already been seen that the provisions of section twelve hun- dred and three,- requiring the statutory original contract to be accompanied by a bond of the original contractor, to inure to the benefit of any and all persons performing labor for or furnishing materials to the contractor, and making the stipulating as to action for breacli of contract. The parties to a contract may stipulate tliat an action for its breach shaU be brought within a reasonable specified period, but, where the amount of the liability for liens could not be determined until they were foreclosed, which was after the period of time for commencing suit on the bond, such limitation was, under the circumstances, unreasonable and in- operative; and where such liens are filed by reason of the failure of the surety in carrying- out the principal's contract to pay claimants, such limitation is waived: Ausplund v. ^tna I. Co., 47 Oreg. 10, 81 Pac. Rep. 577 (pleading special limitation). AVashington. The sureties have a right to complete the building after abandonment by the contractor: Brodek v. Farnum, 11 Wash. 565, 572, 40 Pac. Rep. 189. As to counterclaim of surety, and liability of sureties for damages for delay, and defective material and workmanship, see Brodek v. Farnum, supra. Corporation as surety: See Wheeler v. Everett L. Co., 14 Wash. 630, 45 Pac. Rep. 316. Owner may waive breacli of contract, caused by the mere filing of subclaimants' liens, on the theory that the contractor's bond is not broken thereby until a lien is charged against his property by judg- ment, so that an action brought on the bond within the time limited therein from the date of such judgment is in time: Denny v. Spurr, 38 Wash. 347, 80 Pac. Rep. 541; Washington S. I. Co. v. Flynn, 38 Wash. 701, SO Pac. Rep. 544. See Friend v. Ralston, 35 W^ash. 422, 77 Pac. Rep. 794 (compensated surety); Ovington v. /Etna I. Co., 36 W'ash. 473, 78 Pac. Rep. 1021: Beebe v. Redward, 35 Wash. 615, 77 Pac. Rep. 1052 (surety not prejudiced). Distinction between voluntary guarantor and compensated surety: See Cowles v. United States F. & G. Co., 32 Wash. 120, 72 Pac. Rep. 1032, 98 Am. St. Rep. 838. Contractor having partner unknown to owner and surety does not release surety: Crowley v. United States F. & G. Co., 29 W'ash. 26S, 69 Pac. Rep. 784. = Kerr's Cyc. Code Civ. Proc, § 1203. This section, in 1885, required no bond to be given, but if a bond was given, it was required to be filed, otherwise it was void, etc. This section continued in force until 1887, when it was repealed, and no provision was made with reference to bonds until the enactment of tlie section in the form suggested in tne text. Bond on contract for street-work, under Street Improve- ment Act of March 18, 1885, § 6Vi (new), Stats. 1899, p. 23, Ueuuing's General L.aws, p. 1310. §§ 607-609 mechanics' liens. 552 owner and contractor liable in damages to lien-holders for a ' failure so to do, has been declared unconstitutional.^ Under the circumstances, no extended discussion of the statutory bond Avill be made. § 607. Same. Application of provision. The bond re- quired by the provisions of section twelve hundred and three,* which, as heretofore stated, was declared unconstitu- tional, was a statutory bond, and was applicable only to statutory original contracts, and not to non-statutorj' origi- nal contracts ; and the general principles applicable to statu- tory bonds are pertinent in this connection.^ § 608. Statutory bond. Formalities. Where, however, the statutory bond is never filed, although signed by the sureties and left in the possession of a third party, no recovery can be had on the bond against the sureties ; the individuals com- posing the class of the obligees not being known at the time of the execution of the contract, and it being impossible to deliver the bond to them personally, or to any agent for them, and a filing for record being such delivery, as in the case of an official bond.® § 609. Same. Statutory bond void. The statutory bond of a contractor, given under the provisions of section twelve hundred and three of the Code of Civil Procedure, being held unconstitutional, it is immaterial whether the failure of the subclaimant to file a claim of lien does or does not relieve the sureties, as they were not obligated under it.^ ^ See § 39, and §§ 2S1 et seq., ante. * Kerr'.s Cyo. Code Civ. Proc § 1183. ^ Penalty of " failure to comply Avitli the provi.sions of this sec- tion " did not render void any bond that may be filed, but gave rise to an action for damages: See "Cumulative Remedies." §§638 et seq., post. Bond valid as a common-law bond: See Central L. & M. Co. v. Center, 107 Cal. 193, 196, 40 Pac. Rep. 334; and §612, post, and §§281 et seq., ante. « Mang-rum v. Truesdale. 128 Cal. 145, 146, 60 Pac. Rep. 775. Approved: Carpenter v. Furrey, 68 Cal. 665, 669, 61 Pac. Rep. 369. Distinguished: Gibbs v. Tally, 133 Cal. 373, 378, 65 Pac. Rep. 970, 63 Id. 168, 60 L. R. A. 815. ' San Francisco L. Co. v. Bibb, 139 C^l. 325, 73 Pac. Rep. 864. 553 THIRD PERSONS — SURETIES. § 610 § 610. Same. Contract void. Bond valid. The owner's failure to record a statutory original contract does not in- crease the obligation of the sureties for the principal obli- gors named in the bond, whereby the sureties might be dis- charged, but a stipulation may be inserted in the bond that the original contract should be filed, as a condition precedent to their liability as sureties;* in which case the rule would be otherwise. Hence where the statutory original contract is void, a bond given by a contractor to the owner, guarantee- ing performance of all the conditions of the contract, and that the building should be delivered free from all liens that might arise from or be filed against the building on account of material or labor furnished by the contractor, and used in or about the structure, is valid, and binding upon the sureties.'' And this is the rule where the bond is given after the execution of an unrecorded or void statutory original contract, and refers to the contract as the inducement or con- sideration for its execution ; ^° for a bond to secure the owner against the payment of liens is so far an independent under- taking that the right to enforce it does not depend upon the subsequent or continued validity of the building contract; and the act of the contractors in giving the bond as such in- dependent security, and thereby inducing the owner of the building to make full payment of the contract price to them, estops them from disputing the truth of the recital of the bond as to the contract, and from denying their liability upon it for liens which they failed to discharge, and which the owner was compelled to pay." « Klesslg V. AHspaugh, 99 Cal. 452, 455, 34 Pac. Rep. 106, overriiUne Schallert-Ganahl L. Co. v. Neal, 90 Cal. 213, 27 Pac. Rep. 192, and Kiesslg V. AHspaugh, 91 Cal. 234, 27 Pac. Rep. 662, 13 L. R. A. 418. » Blyth V. Robinson, 104 Cal. 239, 241, 37 Pac. Rep. 904 (before amendment of § 1203 in 1893): Summerton v. Hansen, 117 Cal. 252, 253, 49 Pac. Rep. 135; Kiessig v. AHspaugh. 91 Cal. 234, 237, 27 Pac. Rep. 662, 13 L. R. A. 418, s. c. 99 Cal. 452, 453, 34 Pac. Rep. 106; McMenomy V. White, 115 Cal. 339, 344, 47 Pac. Rep. 109, overriilinK Scliallert- Ganahl L. Co. v. Neal, 90 Cal. 213, 215, sub nom. Stovell v. Neal, 27 Pac. Rep. 192. " Klessig V. AHspaugh, 91 Cal. 234, 238, 27 Pac. Rep. 662, 13 L. R. A. 418 (under Code Civ. Proc, S 1203, as it stood at the time of the contract, the bond was required to be filed with the contract: otherwise it was void; but in this case the bond was given after the contract was made). See Union S. M. Works v. Dodge, 129 Cal. 390, 394, 62 Pac. Rep. 41. " Kiessig v. AHspaugh, 91 Cal. 234, 237, 27 Pac. Rep. 662, 13 L. R. A. 418; Union S. M. Works v. Dodge, 129 Cal. 390, 394, 62 Pac. Rep. 41. §§ 611-613 mechanics' liens. 554 § 611. Same. Liability on statutory bond. Where the condition of a bond is that the contractors " shall duly pay " the value of materials to persons furnishing the same, and that it should be void if so paid, the obligation is accessory and collateral, and can be enforced against the sureties only to the extent that the same obligation can be enforced against the contractor. ^^ § 612. Same. Statutory bond, when enforceable as a common-law obligation. A bond may be enforceable as a common-law bond, where it makes no reference to section twelve hundred and three of the Code of Civil Procedure, requiring the contractor to file a bond, which was held un- constitutional, and therefore void, the bond deriving its force from its own provisions, and not from any statute, nor from the contract, which was void for failure to comply with the statute. ^^ § 613. Common-law bonds. Formalities. It is not neces- sary for the contractor to sign the bond.^* A joint and sev- " Towle V. Sweeney, 2 Cal. App. 29, 83 Pac. Rep. 74 (apparently a statutory bond, the requirement for which has been held unconstitu- tional: See §39, ante). See Paige v. Carroll, 61 Cal. 211; Sonoma County V. Hall, 132 Cal. 589, 62 Pac. Rep. 257, 312, 65 Id. 12, 459; also Farmers' & M. Bank v. Klngsley, 2 Doug. (Mich.) 378, 403. Washington. A surety of a building contractor held not bound by a final settlement made without notice to it by the owner, contractor, and architect: Exposition Amusement Co. v. Empire State Surety Co. (Wash.), 96 Pac. Rep. 158. In an action by the owner against the surety of the building con- tractor on its agreement to hold the owner free from claims for materialJ, the owner held entitled to show the amount of such claims, though claimant, made a party, did not appear: Exposition Amusement Co. v. Empire State Surety Co. (Wash.), 96 Pac. Rep. 158. " People's L,. Co. v. Gillard, 136 Cal. 55, 62, 68 Pac. Rep. 576. See §§ 39, 281 et seq., ante, and authorities cited. See also Union S. M. W'orks v. Dodge. 129 Cal. 390. 62 Pac. Rep. 41; Summerton v. Hanson, 117 Cal. 252, 49 Pac. Rep. 135; Kiessig v. Alls- paurh. 99 Cal. 452, 34 Pac. Rep. 106. AVsishington. Bond running to city, as obligee, instead of state, as reciuired by statute, good as a common-law bond: See Pacific B. Co. V. United States F. & G. Co., 33 W^ash. 47, 73 Pac. Rep. 772. » Stimson M. Co. v. Riley (Cal., Dec. 20, 1895), 42 Pac. Rep. 1072; Kurtz V. Forquer, 94 Cal. 91, 94, 29 Pac. Rep. 413, distingutshing Sac- ramento V. Dunlap, 14 Cal. 421, and People v. Hartley, 21 Cal. 585, 82 Am. Dec. 758. See Weir v. Mead, 101 Cal. 125, 129, 35 Pac. Rep. 567, 40 Am. St. Rep. 4 6. Montana. Cockrill v. Davie, 14 Mont. 131, 35 Pac. Rep. 958 (he having bound himself by the original contract). 555 THIRD PERSONS — SURETIES. §614 eral bond is not void merely owing to the fact that all obligors mentioned in the bond do not sign the same,^^ and the sureties, signing the bond and delivering the same to the obligee without the signature of the principal, are liable thereunder.^*' But it is otherwise if the bond is joint, ^" or if several persons are named in the body of the instrument as parties thereto, and it appears on the face of the instrument, or by proof, that the person sought to be charged signed upon the consideration that the other persons named would also sign.^® § 614. General rule of surety's liability. A surety has the right to stand upon the terms of his contract, and any altera- tion in the contract price, whereby his obligations are in- creased, made by the parties thereto, without his consent, " Stimson M. Co. v. Riley (Cal., Dec. 20, 1895), 42 Pac. Rep. 1072. Oregon. Sureties signing contract as principals: Thompson v. Coff- man, 15 Oreg. 631, 16 Pac. Rep. 713. " Kurtz V. Forquer, 94 Cal. 91, 93, 29 Pac. Rep. 413. See Weir v. Mead, 101 Cal. 125, 35 Pac. Rep. 567, 40 Am. St. Rep. 46. Arizona. Obligee of bond sued without joining principal: See Pres- cott N. Bank v. Head (Ariz., May 25, 1907), 90 Pac. Rep. 328. Montana. Cockrill v. Davie, 14 Mont. 131, 35 Pac. Rep. 958. VVashing^ton. As to consideration of bond, although contractor was In possession and had commenced work before its execution, see De Mattos V. Jordan, 15 Wash. 378, 46 Pac. Rep. 402. " Kurtz V. Forquer, 94 Cal. 91, 29 Pac. Rep. 413. See Weir v. Mead, 101 Cal. 125, 35 Pac. Rep. 567, 40 Am. St. Rep. 46 (probate bond). 1* Cavanaugh v. Casselman, 88 Cal. 543, 26 Pac. Rep. 515; Kurtz v. Forquer. 94 Cal. 91, 94, 29 Pac. Rep. 413. Colorado. Purchaser of property, executing bond after delivery of material, where no lien was created on property: See Burleigh B. Co. V. Merchant B. & B. Co., 13 Colo. App. 455, 59 Pac. Rep. 83. Blontana. See Cockrill v. Davie, 14 Mont. 131, 35 Pac. Rep. 958. Oregon. Surety bound, on the principle of estoppel, where he signed a bond and delivered it to the principal on the understanding that an- other surety should be procured, tlie bond being regular on its face, and delivered to the obligee in tlie absence of any showing of notice to the obligee as to the condition: Wollenberg v. Sykes (Oreg., Marcli 19, 1907), 89 Pac. Rep. 148. AVaMhington. Where the surety delivers a bond to the contractor for the purpose of closing a building contract with tlie owner, the contractor is tliereby constituted the surety's agent, and tlie surety is bound, in the absence of an.vthing on the face of tlie bond tending to put the owner on inquiry: Gritman v. United States F. & G. Co. (W^ash., Dec. 20, 1905), 83 Pac. Rep. 6. As to consideration of l>ond, although contractor was in possession and had commenced work before its execution, see De Mattos v. Jor- dan, 15 Wash. 378, 46 Pac. Rep. 402. Date of bond antecedent to date of oootract: See Spokane & I. L. Co. V. Loy, 21 Wash. 501, 58 Pac. Rep. 672. § 614 mechanics' liens. 556 will discharge him from liability.^® An alteration of the plans, under a statutory original contract calling for a build- ing to cost sixteen thousand three hundred dollars, whereby the cost was increased three hundred and fifteen dollars, released the sureties on the contractor's bond given to secure the performance of such contract by the contractor, as, under the general rule laid down in section two thousand eight hundred and nineteen of the Civil Code,^° such altera- tion is material.-^ The expression found in the opinions in some cases, that a surety is discharged by any " material " alteration of the contract, has no reference to such an alteration as will merely vary the form of the contract without changing its sub- stance, but it does include such an alteration as will increase the obligation for which the indemnity was given. An in- crease of upward of three hundred dollars is a material alteration. ^- " Alcatraz M. H. Assoc, v. United States F. & G. Co., 3 Cal. App. 338, 85 Pac. Rep. 156, 157; Tally v. Ganahl (Cal. App., June 19. 1907), 90 Pac. Rep. 1049; Cadenasso v. Antonelle, 127 Cal. 382, 59 Pac. Rep. 765; Boas V. Maloney, 138 Cal. 105, 70 Pac. Rep. 1004. See: Arkan-sas. O'Neal v. Kelley, 65 Ark. 550, 47 S. W. Rep. 409. Georgia. Bethune v. Dozier, 10 Ga. 235. Indiana. Judah v. Zimmerman, 22 Ind. 388. Mi.<«»iouri. Beers v. Wolf, 116 Mo. 179, 22 S. W. Rep. 620; Eldridge V. Fuhr, 59 Mo. App. 44. Oregon. Corporation surety has same right as private surety to stand upon its strict rights: Ausplund v. JEtnn I. Co., 47 Oreg. 10, 81 Pac. Rep. 577. Federal. Miller v. Stewart, 22 U. S. (9 Wheat.) 680, bk. 6 L. ed. 190. fSuretles are entitled to stand upon tlie strict terms of tlieir con- tract: Boas V. Maloney, 138 Cal. 105, 107, 70 Pac. Rep. 1004; Cadenasso V. Antonelle, 127 Cal. 382, 59 Pac. Rep. 765; Tally v. Parsons, 131 Cal. 516, 518, 63 Pac. Rep. 833. =™ Kerr's Cyc. Civ. Code, § 2819, and see note thereto. *i Alcatraz M. H. Assoc, v. United States F. & G. Co., 3 Cal. App. 338, 85 Pac. Rep. 156 (contract price, $16,300; increased costs, $315). See § 615, post. Colorado. Any change in the contract for the performance of Which a surety is bound, without his consent, relieves him from lia- bility, and the burden rests upon the one seeking to charge the surety to prove the latter's assent to such change: United States v. Mclntyre (Colo.), Ill Fed. Rep. 590 (Cir. Ct.). " Alcatraz M. H. Assoc, v. United States F. & G. Co., 3 Cal. App. 338, 85 Pac. Rep. 156, 158. There is evidently a mistake in the statement of the court in this case. Undoubtedly, the rule, as stated in the text, was intended to be expressed. Material alteration vitiating contract. Increased cost, $25, in O'Neal V. Kelley, 65 Ark. 550, 47 S. W. Rep. 409; increase of $231 over con- tract price of $31,000, in Beers v. Wolf, 116 Mo. 179, 22 S. W. Rep. 620. 557 THIRD PERSONS — SURETIES. § 615 § 615. Original contract as basis of liability. The sure- tias liave a right to sliow that the original contract sued on was not the contract under which tlie work was done, in those cases where there has been a modification of the origi- nal contract, and the building completed in accordance with the contract as thus modified.-" Changes in contract authorized by contract. Where a con- tract was made by a school board for the construction of a public school building, and the contractor gave a bond for the performance of the contract, under which the board could alter the contract, and the alterations should in no way affect or avoid the same, etc., changes as to the plan of' the building, within the scope of the provision of the con- tract, do not relieve the sureties from liability.-* Oregon, Changes* in contract, materially changing, varying, or in- creasing the risk, release sureties, but otherwise if with their con- sent: Enterprise H. Co. v. Book (Oreg., May 1, 1906), 85 Pac. Rep. 333, 334. Provision in contract for benefit of contractor, that alterations sliould be made in ^vritinj?, may be waived by him; and where the bond provides that any' departure from the specifications or alterations in the same should not avoid the bond, the sureties are liable: Enter- prise H. Co. v. Book (Oreg., May 1, 1906), 85 Pac. Rep. 333, 334. W'ashington. A surety cannot insist upon anything constituting a breach which the owner does not insist upon, unless he shows that the breach operated in some manner to his prejudice: Beebe v. Red- ward, 35 TVash. 615, 77 Pac. Rep. 1052. 1055. Guaranty company -tvliicli, for a couiiien.sation, becomes .surety upon a l»ond, given by a building c«(ntractor for the faithful performance of hia contract, cannot escape liability by reason of variance from the exact terms of the contract, where such provisions were waived by t!)e contractor, and no damage is shown as resulting to the surety by reason thereof: Friend v. Ralston, 35 W^ash. 422, 77 Pac. Rep. 794, 7D7 (failure of owner to pay contractor in full). Surety's Iial>ility on cliange of plans at additional co.st : See Oving- ton V. ^^iltna I. Co., 36 Wash. 473, 78 Pac. Rep. 1021; and, generally, unless such notice is given within the time specified, the damages are waived: Trinity Parish v. ^tna I. Co., 37 Wash. 515, 79 Pac. Rep. 1097. See Remington v. Fidelity & D. Co., 27 Wash. 429, 67 Pac. Rep. 989. Application of payment.s for benefit of surety: See Crane Co. v. Pacific H. & P. Co., 36 W^ash. 95, 78 Pac. Rep. 460, 86 Id. 849. Alterations in work, order of architect: See Drumheller v. American S. Co., 30 Wash. 530, 71 Pac. Rep. 25, 29. Contract providing tliat owner should pay receipted bills as they became due does not release the surety, where the owner required sucli bills to be approved by the foreman in charge: Crowley v. United States F. & G. Co.. zO Wash. 268, 69 Pac. Rep. 784. '■" People's L. Co. v. Gillard, 136 Cal. 55. 62, 68 Pac. Rep. 576. " People's L. Co. v. Gillard, 136 Cal. 55, 62, 68 Pac. Rep. 576. See li 614, ante. Action on bond; change of contract: See People's L. Co. v. Gillard, 136 Cal. 55, 61, 68 Pac. Rep. 576. §§ 616, 617 mechanics' liens. 558 § 616. Auditing accounts, as provided in contract. Where the owner finishes an abandoned contract at a cost greater than the price provided in the contract, a clause therein, that, under such circumstances, " the expense incurred by the owner shall be audited and certified by the architects, whose certificate thereof shall be conclusive between the parties," makes the certificate a condition precedent, and the sureties on the contractor's bond for the faithful performance of the contract are not liable without such certificate ; and even where the owner discharged the architects on the ground that they were careless, incompetent, and dishonest, unless found to be so by the court, or there was a sufficient excuse for not having the amount audited and certified by the archi- tects, such as a refusal on their part to do so, or that they acted fraudulently or corruptly, or through mistake, no re- covery can be had against the sureties.-^ § 617. Construction of bond. The general subject of the construction of bonds will not be considered, but the cases decided in the jurisdictions herein considered, relating to the title of this work, will onl.y be set forth. Kvidence and pleading. Contract for liquidated damages against sureties: See Long Beach School Dist. v. Dodge, 135 Cal. 401, 405, 67 Pac. Rep. '499. Oregon. Surety bound by the express terms of contract: Enter- prise H. Co. V. Book (Oreg., May 1, 1906), 85 Pac. Rep. 333, 334. Bond conilitioned for the faithful perforniance by tlie contractor of " all the terms, covenants, and conditions " of his contract, incor- porates contract in bond: Ausplund v. ^Etna I. Co.. 47 Oreg. 10, 81 Pac. Rep. 577. See McKinnon v. Higgins, 47 Oreg. 44, 81 Pac. Rep. 581. AA'ashington. Where a compensated surety is not damaged by an extension of time for contractor to complete the work, surety is Hable for contractor's failure to pay claims for labor and materials: Henry V. JEtna I. Co., 36 W^ash. 553, sub nom. Henry v. Flynn, 79 Pac. Rep. 42. See Cowles v. United States F. & G. Co., 33 Wash. 120, 72 Pac. Rep. 1032, 98 Am. St. Rep. 838. Surety is liable, even though variances from the contract are made by tlie original contractor and subcontractor, if they were allowed by the original contract. Such bonds are contracts for compensation, and not insurance contracts: Pacific B. Co. v. United States F. & G. Co., 33 Wash. 47, 73 Pac. Rep. 772. Where contract and bond contemplate employment of subcon- tractors, performance of part of work by owner not discharging sureties: See Drumheller v. American S. Co., 30 W^ash. 530, 71 Pac. Rep. 25. =5 Tally V. Parsons, 131 Cal. 516, 520, 63 Pac. Rep. 833. See §§ 238 et seq., ante. 559 THIRD PERSOXS — SURETIES. §617 " Claims accruing." A provisiou in a bond, whereby the sureties bound themselves to pay all " claims that may have accrued against the said building by reason of the aforesaid erection," does not make the sureties liable for releasing liens which could not be legally enforced against the build- ing, as such claims cannot be said to have " accrued " against it.-« Performing obligation of void contract. Where there is no covenant in a building contract that the building shall be delivered free from liens, nor that liens shall not be placed upon it, and the contractor completed the work within the time and according to the plans and specifications of the contract, and he was paid the full amount of the contract price, and no complaint is made as to the contract not being complied with, the sureties are not responsible for subclaira- ants' liens on the building, although the contract was void and the liens were valid, such liability not falling within the condition of the bond that the contractor should perform the obligations of his contract.-' Money advanced not " materials," within obligation. Where the undertaking of the sureties is to pay all persons performing labor or furnishing materials to the contractor, the sureties are not liable to third parties who advanced money to the contractor, such money not being materials, within the meaning of the contract of suretyship.^^ ==« Brill V. De Tvirk, 130 Cal. 241, 244, 62 Pac. Rep. 462. =' Boas V. Maloney, 138 Cal. 105, 107, 70 Pac. Rep. 1004. See Gato v. Warrington, 37 Fla. 542, 19 So. Rep. 883; Crowley v. United States F. & G. Co., 29 Wash. 268, 69 Pac. Rep. 784. ^ Cadenasso v. Antonelle, 127 Cal. 382, 386, 59 Pac. Rep. 765, ap- proved in Boas v. Maloney, 138 Cal. 105, 108, 70 Pac. Rep. 1004. See Boas V. Maloney, 138 Cal. 105, 107, 70 Pac. Rep. 1004; Godeffroy v. Caldwell, 2 Cal. 489, 492. Hawaii. See Haokfeld v. Hilo R. Co., 14 Hawn. 448, 454. Illinois. City of Sterling v. Wolf, 163 111. 467, 45 N. E. Rep. 218. Minnesota. Simonson v. Grant, 36 Minn. 439, 31 N. W. Rep. 861. See §§ 87 et seq., ante. Oregon. Bond construed as indemnity against damages, rather than against liability — -nominal damages: See Henry v. Hand, 36 Oreg. 492, 59 Pac. Rep. 330. AVasIiing-ton. Bond to be construed with reference to the gathered intention of the parties to the contract, and whatever is binding upon them is binding upon the surety, who becomes a party to the contract, identified with the contractor: Cowles v. United States F. & G. Co., 32 Wash. 120, 72 Pac. Rep. 1032, 98 Am. St. Rep. 838. § 618 MECHzVNICS' LIENS. 560 § 618. Surety'5 rights. Notice. It has been intimated that the surety is entitled to notice of the action to foreclose the liens and have the same properly defended.^^ But, how- ever this may be, in the absence of a provision therefor in the bond, no notice or demand was required, with respect to the contractor's bond, under section twelve hundred and three of the Code of Civii Procedure, which was subse- quently declared unconstitutional, although the provision was held constitutional in the case cited.^'* Where the bond provided that the contractor ^vould " faithfully comply with all the terms " of the contract, one of the terms being that he should furnish all the materials, the sureties are liable to the owner for materials unpaid for. and the owner need not previously have paid tlie claims therefor: Trinity Parish v. .^tna I. Co., 37 Wash. 515, 79 Pac. Rep. 1079, explaining: and distinguishing Friend v. Ralston, 35 Wash. 422, 77 Pac. Rep. 794. ProvLsion in contract for the faithful performance of -t^hieh a bond is given, requiring contractor to furnish materials, means that he should pay for them, and not that he should simply supply them and leave the owner to pay for them: Crowley v. United States F. & G. Co., 29 Wash. 268, 69 Pac. Rep. 784; Wheeler, Osgood & Co. v. Everett L. Co., 14 Wash. 630, 45 Pac. Rep. 316. -^ Ernst V. Cumniings, 55 Cal. 179, 183. But see Kerr's Cyc. Civ. Code, §§ 2831 et seq., and notes. "^ Carpenter v. Furrey, 128 Cal. 665, 668, 61 Pac. Rep. 369. See § 39, ante. Arizona. The provision of Rev. Stats. 1901, par. 3551, apply to a contractor's bond, and the surety may require, by notice in writing, the creditor or obligee forthwith to institute suit, and a notice pre- cisely following the language of the statute complies therewith, without reciting that the right of action has accrued, or that the surety's intention was to avail himself of the discharge provided for by par. 3552: Prescott N. Bank v. Head (Ariz., May 25, 1907), 90 Pac. Rep. 328. Colorado. Notice to surety company, by one of its agents, at the request of obligee, sufficient, where a bond required notice to com- pany at its principal office, by mail: See Routt v. Dils (Colo., May 6, 1907), 90 Pac. Rep. 67. Xotice to surety of contractor's failure to perform contract " forth- with," or "as soon as possible," or "immediately," satisfied by due diligence, under the circumstances of the case, and is ordinarily a question of fact, unless the facts are undisputed: Routt v. Dils (Colo., May 6, 1907), 90 Pac. Rep. 67. Sureties completing contract on death o£ contractor, reaffirming obligation, and agreeing to pay Ijills arising out of original contract, although lien fails, personal judgment obtained against owner: See Hughes V. Gibson, 15 Colo. App. 318. 62 Pac. Rep. 1037. Idaho. Surety has the right to complete contract, when so pro- vided in bond: American B. Co. v. Regents, 81 Pac. Rep. 604, 610 (com- pensated surety). Where the surety is n.otified that the contractor had defaulted, and assumes to carry out the terms of tlie contract, as permitted by the bond, the surety becomes liable to the obligee for all inferior work done by the contractor, and agrees to make good any defects in his 561 THIRD PERROXS — SURETIES. §619 § 619. Surety as lien claimant. But, under a void con- tract,^^ as well as under a valid contract,''- it has been held that a claimant is not barred from coming into court with his cause of action to foreclose a lien, even though he is a work or materials, both before and after it assumed the contract: American B. Co. v. Regents (Idaho, July 11, 1905), 81 Pac. Rep. 604, 610 icompensated surety). Oregou. Surety, carrying out contract of contractor, is subrogated to the latter's rights and obligations under the contract: Ausplund v. ^Etna I. Co., 47 Oreg. 10, 81 Pac. Rep. 577. Contractor failing to keep building free from liens, as agreed, last payment cannot be demanded lay sureties: See Henry v. Hand, 36 Oreg. 492, 59 Pac. Rep. 330; and see Hand M. Co. v. Marks, 36 Oreg. 523, 59 Pac. Rep. 549, 552 (deed of land and part payment). Washington. Where the bond provided for immediate notice of the breach of the contract, and fixed a period within which suit must be brought thereafter, action must be commenced by the owner within the prescribed period after knowledge of the breach, and he should notify the sureties: Novelty M. Co. v. Heinzerling, 39 Wash. 244, 81 Pac. Rep. 742. See Henry v. Flynn, 36 Wash. 553, 79 Pac. Rep. 42. AViiere bond provide.s that surety should be notified of any act of contractor which inight create a liability on the part of the surety, immediately after owner's knowledge of act, notice of subclaimants' demands, given on the day succeeding that on which the various claims of lien were filed against the building, is in time, although the owner had previous notice of the furnishing of such materials to the contractor: W'ashington S. I. Co. v. Flynn, 38 W^ash. 701, 80 Pac. Rep. 544: Denny v. Spurr, 38 Wash. 347, 80 Pac. Rep. 541. See Ovington v. ..Etna I. Co., 36 Wash. 473, 78 Pac. Rep. 1021: Heffernan v. United States F. & G. Co.. 37 W^ash. 477, 79 Pac. Rep. 1095. Surety Is estopped, in action on bond, by a judgment of o^vner against contractor for breach of contract, obtained 'in good faith, witliout fraud or collusion, where surety had due notice of suit against contractor, and was offered the defense thereof: Friend v. Ralston, 35 Wash. 422, 77 Pac. Rep. 794; Henry v. Flynn, 36 Wash. 553, 79 Pac. Rep. 42. See Douthitt v. MacCulsky, 11 Wash. 601, 40 Pac. Rep. 186; Doremus v. Root, 23 Wash. 710, 716; 63 Pac. Rep. 572, 54 L. R. A. 649; Trinity Parish v. ^Etna I. Co., 37 W'ash. 515, 79 Pac. Rep. 1097. Refusal of owner to arbitrate. Kvidence. Tlie fact tliat an owner had refused to arbitrate the reasonable value of extras, as provided In the contract, was admissible, in an action on the bond, since the surety was entitled to have the same offset pro tanto against the owner's claim: Crowley v. United States F. & G. Co., 29 W'ash. 268, 69 Pac. Rep. 784. Notice or knowledge of default t>t contractor by owner: See Henry V. Flynn, 36 Wash. ^,^o. 79 Pac. Rep. 42. =■ Schallert-Ganahl I.. Co. v. Neal, 90 Cal. 213, 215, 27 Pac. Rep. 192; Blyth V. Torre (Cal., Dec. 14, 1894), 38 Pac. Rep. 639. •''- Patent B. Co. v. Moore, 75 Cal. 205, 207, 16 Pac. Rep. 890; Blyth V. Torre (Cal.. Dec. 14, 1894), 38 Pac. Rep. 639. See Bragg v. Shain. 49 Cal. 131, 136. Pleading estoppel: See Hubbard v. I.,ee (Cal. App.. Oct. 11, 1907), 92 Pac. Rep. 744. Arizona. Bond requiring the contractor to pay lien claim.<:: See Prescott Nat. Bank v. Head (Ariz., IMay 25, 1907), 90 Pac. Rep. 328. 330. Montana. Eakins v. Frank, 21 Mont. 192, 53 Pac. Rep. 538, contra. Mech. Liens — 36 § 620 mechanics' liens. 562 surety for the contractor, to protect the owner against the default or negligence of the contractor; for, until the damages have been alleged and proven in some proper action, it is rather a question of cross-complaint or set-ofE than of estoppel."^ This doctrine of estoppel, however, in the light of a subsequent decision, stated in the following section, loses much force and meaning, even if the authorities here cited have not been impliedly overruled. § 620. Surety under legal obligation not to foreclose lien. Notwithstanding the fact, as stated in the last preceding section, that it had been held that a surety on a contractor's bond, conditioned against the filing of liens, was not estopped to foreclose such lien, it was subsequently deter- mined that — • Where the contractor's sureties furnish materials to him, and duly file a claim of lien against the building therefor, and the owner gives them a note to cancel the lien, there being no evidence that the note was given to compromise a doubtful claim, it is without any legal consideration to sup- port it, and as to the forbearance of the sureties to foreclose the lien, they w^ere already under a legal obligation not to foreclose the same, the bond providing that the structure 33 Blyth V. Torre (Cal., Dec. 14, 1894), 38 Pac. Rep. 639. In this case the bond seems to indemnify against damage, but in the syUabus, against liens. The case was dismissed, after rehearing granted. The question of mere waiver was not discussed in the opinion. See Man- grum V. Truesdale, 128 Cal. 145, 146, 60 Pac. Rep. 775. Arizona. Prescott N. Bank v. Head (Ariz., May 25, 1907), 90 Pac. Rep. 328, 330. ColoraUo. Aste v. WMlson, 14 Colo. App. 323. 59 Pac. Rep. 846 (sub- contractors). Hawaii. Under a bond to deliver the building free from liens and claims, surety is not estopped to assert lien: Allen v. Lincoln, 9 Hawn. 364. Montana. See Eakins v. Frank, 21 Mont. 192, 53 Pac. Rep. 538. Oregon. Surety estopped to file claim of lien, but if owner dis- charges surety from obligation of bond, lien may be enforced: Hand M. Co. v. Maries, 36 Oreg. 523, 59 Pac. Rep. 549, 551. W'asliington. But, in this state, it is held that such surety cannot file and enforce a lien against the building, although the owner may in fact be indebted at the time to the contractor: Spears v. Lawrence, 10 Wash. 368. 38 Pac. Rep. 1049, 45 Am. St. Rep. 789; Moise v. Mans- field, 10 Wash. 373, 38 Pac. Rep. 1050; Todd v. Franzvog (Wash., Nov. 27. 1906), 87 Pac. Rep. 831; Kent L. Co. v. Ward, 37 Wash. 60, 79 Pac Rep. 485. 563 THIRD PERSONS — SURETIES. § 621 should be delivered free from all liens ; and in canceling this lien they conferred no benefit upon the defendant to which he wa3 not already legally entitled, and themselves suffered no detriment they were not already legally bound to suffer, and this is not a sufficient consideration for the note ; and even if it has sufficient consideration to support it, the sure- ties cannot recover, at least not beyond the amount of damage counterclaimed by the owner; for it was given for the purpose of discharging one of the liens against which plaintiffs, as sureties, undertook to indemnify the defendant, and immediately upon the payment of such note, a cause of action would arise by virtue of the bond in favor of the owner against the sureties for the amount so paid; and, under such circumstances, and to avoid circuity of action, the defendant should be permitted to interpose the plaintiff's liability upon the bond as a defense. The sureties are not released from their obligation as sureties for tlie contractor, and no such legal effect was worked out by the mere fact that the owner executed the note sued on, under the circumstances stated ; and even if the note were given under the mistaken belief that the bond was void because the statutory original contract was void, it did not destroy the obligation of the bond.^'* § 621. Oblig-ee of bond destroying security of surety. When the principal has left a sufficient fund in the hands of " Blyth V. Robin.son, 104 Cal. 239, 242, 37 Pac. Rep. 904. In this case there was no evidence that the note was given to compromise a doubtful claim. See Stimson M. Co. v. Riley (Cal., Dec. 20, 1895), 42 Pac. Rep. 1072. See "Answer," §§ 746 et seq., post; "Estoppel," §§ 816 et seq., post. Utah. Surety on bonds conditioned against liens or claims not en- titled to lien: Smith v. Bowman (Utah, Jan. 15, 1907), 88 Pac. Rep. 687, 9 L. R. A. (N. S.) 889. \Vasliins'ton. But see Dibble v. De Mattos, 8 Wash. 542, 36 Pac. Rep. ISfi. in which it was held that wliere surety paid the laborers of the absconding contractor, upon the promise of tlie owner to repay the same to tlie surety, so that work could progress at once, there was a sufficient consideration for tlie promise (Stiles and Hoyt, JJ., dis- senting), and that it was not within the statute of frauds as a promise to answer for the del)t of another, but an original under- taking: Dibble V. De Mattos, S Wash. .''.42, 36 Pac. Rep. 485. The contract may be rescinded by the o^vner and surety, so far as the surety is concerned, in the absence of the principal: Gottstoin v. Seattle L. & C. Co., 7 Wash. 424, 35 Pac. Rep. 133. § 622 mechanics' liens. 564 the obligee, and he thinks fit, instead of retaining it in his hands, to pay it back to the principal, the surety cannot be called upon.^° Where a contractor assigns to one of his sureties checks given him for government work, as security, at least, for such surety's advances to him, under section two thousand eight hundred and forty-nine of the Civil Code, the other surety is entitled to the benefit of the securities thus held by the first surety.^*^ § 622. Premature payments. Generally. Premature pay- ments made by owner, not authorized by the contract, ei5;on- erate the sureties.^^ Results following the failure of the ^ Kiessig- V. Allspaugh, 91 Cal. 231, 232, 27 Pac. Rep. 662, 13 L. R. A. 418. See note 13 L. R. A. 418. 3» National Bank v. Schirm, 3 Cal. App. 696, 86 Pac. Rep. 981. See IverrVs Cyc. Civ. Code, § 2849, and note. Oregon. Second bond, taken as additional security, does not dis- charge surety: Hand M. Co. v. Marks, 36 Oreg. 523, 59 Pac. Rep. 549, 552. "' Glenn County v. Jones, 146 Cal. 518, 80 Pac. Rep. 695, distin^fuiNli- ing Hand M. Co. v. Marks, 36 Oreg. 523, 52 Pac. Rep. 512, criticizing Fidelity & D. Co. v. Robertson, 136 Ala. 379, 34 So. Rep. 933, and Meyers v. Wood, 26 Tex. Civ. App. 591, 65 S. W. Rep. 671. Arizona. See Prescott N. Bank v. Head (Ariz., May 25, 1907), 90 Pac. Rep. 328. Montana. A surety upon a contract providing that the men shall be paid by the owner upon time-checks signed by the contractor, who, with knowledge of such provision, and that the contract price is ex- hausted, instructs the owner to pay the men, thereby waives the right to object that the time-checks were not signed by the contractor: Hamilton v. Woodworth, 17 Mont. 327, 42 Pac. Rep. 849. Nevada. Where the bond provides that " it is to secure the plain- tiff, and keep it harmless from all liens and claims of liens," it is purely a contract of indemnity, and is not violated by simply permit- ting liens to be filed: Carson Opera House Assoc, v. Miller, 16 Nev. 327. See Jones v. Childs, S Nev. 121, 125. Sureties are exonerated -wlien the owner retains a portion of the contract price to pay such claims before suit brought thereon, the statute allowing such retention only " during the pendency of such action": Carson Opera House Assoc, v. Miller, supra. See Truckee Lodge V. Wood, 14 Nev. 293, 309, for various acts of owner exonerat- ing sureties, such as failure to make weekly payments and to retain certain moneys as agreed, and changing terms of contract. Olvlalionia. Changes in work, permitted by contract and bond, held not to relieve sureties: American S. Co. v. Scott (OkL, Feb. 14, 1907), 90 Pac. Rep. 7. Advanee.s to contractor., prematurely made, where no loss accrued to surety or contractors, do not release surety: American S. Co. v. Scott (Okl., Feb. 14, 1907), 90 Pac. Rep. 7, 565 THIRD PERSONS — ■ SURETIES. § 622 owner to comply with section eleven hundred and eighty- four ^^ are not material upon matters pertaining to the bond. Advances must be proiierly made: See 4 Am. & Eng. Ann. Cas. 615. Oregon. Premature pa>'ment absolutely discharges surety: Weh- rung V. Denham, 42 Oreg. 386, 71 Pac. Rep. 133, 135, overruling Cochran V. Baker, 34 Oreg. 555, 56 Pac. Rep. 641, 52 Id. 520. Unle.ss payment ^vas made with the knowledge and eon.sent of the surety: Enterprise H. Co. v. Book (Oreg., May 1, 1906), 85 Pac. Rep. 333, 334. See Hand M. Co. v. Marks, 36 Oreg. 523, 52 Pac. Rep. 512, 53 Id. 1072, 59 Id. 549; Wehrung v. Denham, 42 Oreg. 386, 71 Pac. Rep. 133, 135 (no compensated surety). It was formerly held that the sureties are only exonerated pro tanto, if a payment Is prematurely made: Cochran v. Baker, 34 Oreg. 555, 56 Pac. Rep. 641. See also Thompson v. CofEman, 15 Oreg. 631, 635, 16 Pac. Rep. 713. Bond providing payments made prematurel.v should not siffect the obligation of sureties, held not to release sureties: hJnterprise H. Co. V. Book (Oreg., May 1, 1906), 85 Pac. Rep. 333, 334 (extra work). AVaiver of defense of premature payment by provision in bond: See Enterprise H. Co. v. Book (Oreg., May 1, 1906), 85 Pac. Rep. 333, 334. Where owner pays amounts due on contractor's orders on arclii- tect's certificates, as required in the bond, under agreement with con- tractor, surety not exonerated: Hand M. Co. v. Marks, 36 Oreg. 523, 59 Pac. Rep. 549, 552. Washington. Peters v. Mackay, 20 W^ash. 172, 54 Pac. Rep. 1122. Sureties are not discharged l»y deviations from specifications in tlie construction of the building, nor even by material alterations, where the contract itself permits such alterations: De Mattos v. Jordan, 15 Wash. 378, 46 Pac. Rep. 402; especially where the suretj', with the knowledge of the proposed changes, agrees to furnish tlie necessarj^ mill-work therefor: WHieeler v. Everett L. Co., 14 Wash. 630, 45 Pac. Rep. 316. Nor are the sureties released where the payments under the con- tract were to be made monthly, as the work progressed, upon the architect's estimates, and the owner accepts an order from the con- tractor in favor of the material-man, payable upon the day the esti- mate becomes due, although a small amount thereof is paid in advance as an accommodation to the material-man: De Mattos v. Jordan, supra. Nor are they released, it seems, even if the owner pays the contractor part of the contract price by returning notes made by the contractor (dictum): Id. Nor because the contractor was compelled to pay his (the contractor's) debts to other parties: Id. Damages, burden of proving, on Ganahl v. W^eir, 130 Cal. 237, 239, 62 Pac. Rep. 512. " Brag-g V. Shain, 49 Cal. 131, 135. Affirmed in Kiessig v. Allspaugh, 91 Cal. 231, 233, 27 Pac. Rep. 655. 13 L. R. A. 418. Di-stinsuished in Foster v. Gaston, 123 Ind. 96, 107, 23 N. E. Rep. 1092. Followed in Backus v. Archer, 109 Mich. 666, 668, 67 N. W. Rep. 913; Simonson v. Grant. 36 Minn. 439, 443, 31 N. W. Rep. 861; Bell V. Paul, 35 Neb. 240. 24 5, 52 N. W. Rep. 1110; Gray v. School Dist.. 35 Neb. 438, 448, 53 N. W". Rep. 377; Board of Comm'rs v. Branham, 57 Fed. Rep. 179, 182. See Glenn County v. Jones, 146 Cal. 518. 522. 80 Pac. Rep. 695; Parke & L. Co. V. White River Co., 110 Cal. 658, 665, 43 Pac. Rep. 202; Eppin- ger V. Kendrick, 114 Cal. 620, 626. 46 Pac. Rep. 613. Indiana. Foster v. Gaston, 123 Ind. 96, 107, 23 N. E. Rep. 1092. Io%va. Stillman v. Wickham. 106 Iowa 597, 599, 76 N. W. Rep. 1008. Michigan. Marquette O. H. Co. v. Wilson. 109 Mich. 223. 230. 67 N. W. Rep. 123. Minne.<4ota. Pioneer S. & L. Co. v. Freeburg, 59 Minn. 230. 234. 61 N. W. Rep. 25; Graves v. Merrill. 67 Minn. 463, 475, 70 N. W. Rep. 562; Fidelity Mut. L. Assoc, v. Dewey, 83 Minn. 389, 393, 86 N. W. Rep. 423. Missouri. Taylor v. Jeter, 23 Mo. 244; Evans v. Graden. 125 Mo. 72, 77, 28 S. W. Rep. 439; Burley v. Hitt, 54 Mo, App. 272, 276. Nebraska. Brennan v. Clark. 29 Neb. 385, 399, 45 N. W. Rep. 472. 567 THIRD PERSONS — SURETIES. § ti2-l Where the owner, under the statutory original contract, is to pay a portion of the price in instalments, and the bal- ance of twenty-five per cent thirty-five days after the com- pletion and acceptance of the work, the surety upon the con- tractor's bond, in the sum of such balance, conditioned that the contractor should deliver the building within the con- tract time free from all liens, demands, and claims, is liable only for sums paid by the owner above such amount to satisfy valid liens on the structure, as the surety is entitled to the application of this balance to the payment of such ivalid liens, and he is liable only for enforceable liens.*^ Where the contractor is under the obligation of placing all the materials on the building site before he is entitled to any money under the terms of the contract, a payment made to him, without the consent of his sureties, before he did so, materially alters the obligation of such sureties on his bond, conditioned that he should do and perform all things neces- sary to the erection of a public school building, according to the plans, specifications, and contract, and they are com- pletely exonerated, and not alone to the limit of the amount prematurely paid.*^ § 624. Same. Final instalment. Where the owner was to retain one quarter of the contract price as additional security against liens upon the building, and for the benefit of the sureties, until final settlement between the parties, in addition to a bond referring to a void statutory original con- Nevuda. Truckee Lodge v. Wood, 14 Nev. 293, 310. Oreii^un. Hand Mfg-. Co. v. Marks, 36 Oreg. 523, 531, 52 Pac. Rep. 512, 53 Id. 1072, 59 Id. 459. South CaroHna. City Council v. Ormand, 51 S. C. 121, 226, 28 S. B. Rep. 147. Virginia. Kirsclibaum v. Blair. 98 Va. 35, 45, 34 S. E. Rep. 895. Wa-sliinf^ton. Peters v. Mackay, 20 Wash. 172, 54 Pac. Rep. 1122. AViiscunMiii. KimbaU W. W. Co. v. Baker, 62 Wis. 526, 531, 22 N. W. Rep. 730; Stephens v. Elver, 101 Wis. 392, 398, 77 N. TV'. Rep. 737. Federal. Mundy v. Stevens, 61 Fed. Rep. 77, 84; United States v. Freel, 92 Fed. Rep. 299, 303. En^'llNli. Calvert v. London Dock Co., 2 Keen Ch. 638, 639. *• Alcatraz M. H. Assoc, v. United States F. & G. Co., 3 Cal. App. 338, 85 Pac. Rep. 156. *3 Glenn County v. Jones, 146 Cal. 518, 520, 80 Pac. Rep. 695, dis- tinguiHbiui; Hand M. Co. v. Marks. 36 Oreg. 523, 52 Pac. Rep. 512. See Kerr's Cyc. Civ. Code, §§ 2480, 2819. § 625 mechanics' liens. 568 tract as its inducement/* the balance is a special fund to which the sureties may look for their indemnity, and without the consent of the sureties the owner cannot apply it to pay- ing the contractor instead of lien-holders, and after such payment to the contractor, the sureties are relieved of responsibility for any liens paid over and above the contract price. ^^ § 625. Liability of sureties. Damages. Where the origi- nal contractors' bond provided that they should complete the building within a specified time, and deliver it to the owner " free from all liens and claims that may be made or filed against the same for or in respect to any labor or materials performed or furnished in or for said building," and the amount of liens was ascertained and paid into court to discharge those claimed against the owner's property, one hundred dollars, paid for attorneys' fees, was allowed as reasonable damages, witliin the terms of the bond, approxi- mately caused by the breach of the agreement to deliver the building free from liens, the owner acting in good faith ; and loss of rent, owing to such default of the contractors, is also damage directly caused b}' the breach of the bond, and is properly allowed.*" ■" Such a statutory bond was, however, later held void, the provision being unconstitutional: See § 39, and §§ 281 et seq., ante. *'^ Kiessig- v. Allspaugh, 91 Cal. 231, 232, 27 Pac. Rep. 655, 13 L. R. A. 418. "Wyoming. But where an owner paid the contractor in full, although the latter was liable in damages, it was held, under the facts of the case, that the owner was not estopped to hold the suretias on the contractor's bond for the amount of the damage: Halleck v. Bresnahen, 3 Wyo. 73, 2 Pac. Rep. 537. « Tally V. Ganahl (Cal. Sup., June 19, 1907), 90 Pac. Rep. 1049. See Tally V. Parsons, 131 Cal. 516, 63 Pac. Rep. 833. Ijiability of Nureties on contractors' bond on failure of o^vner to secure certificate of architect, strictly as provided in contract: See Tally V. Ganahl (Cal. Sup., June 19, 1907), 90 Pac. Rep. 1049. See Tally V. Parsons, 131 Cal. 516, 63 Pac. Rep. 833. Oklaiionia. Surety not released for damages of a certain amount per day for delay, where contractor continues work beyond the stipu- lated time, with the mere knowledge of the owner, there being no agreement for extension: American S. Co. v. Scott (Okl., Feb. 14, 1907), 90 Pac. Rep. 7. \Va»)liiugton. Liability of surety on su'bcontractor's bond: See Pacific B. Co. V. United States F. & G. Co., 33 Wash. 47, 73 Pac. Rep. 772. 569 THIRD PERSONS SURETIES. § 625 Where a bond is for the performance of a contract to deliver a building free from all liens, claims, and demands, expenses incurred by the obligee, for services of attorneys and other expenses in defending actions to foreclose liens, are not chargeable against the sureties, when the owner was to pay twenty-five per cent of the contract price thirty-five days after the completion of the structure, and before the expiration thereof it was held that he could ascertain the amount of liens claimed thereon and satisfy them by appro- priating the money in the owner's hands therefor.^' But, it has been seen, notwithstanding this decision, that there is no obligation on the part of the owner to determine at his own risk the validity of such liens. ^^ Excess of cost on abandonment. Where a material-man gives a bond to furnish certain materials to the contractor, and his contract provides that the contractor can pay in advance of delivery, but the materials should be acceptable to the architects before payment, the contractor can recover the difference between the contract price and the price paid in open market for the materials, to the extent of the under- taking ; and it is no defense that the architects did not accept the materials, and that the contractor made advances to the material-man to enable him to properly manufacture the materials, the obligors not being injuriously affected, and the money paid by the contractor being mere voluntary Interest as damages in action on bond of judgment against one of joint sureties, bond being joint and several: See Spokane & I. L. Co. v. Loy, 21 Wasli. 501, 58 Pac. Rep. 672. Objection to items of damage not in bill of particulars: See Spokane & I. L. Co. V. I^oy, 21 Wash. r,()l, 58 Pac. Rep. 672. Question of surety's liability, and amount thereof, for jury: See Spokane & I. L. Co. v. Loy, 21 Wash. 501. 58 Pac. Rep. 672. " Alcatraz M. & H. Assoc, v. United States F. & G. Co., 3 Cal. App. 338, 85 Pac. Rep. 156, 158. <» See §§ 535 et soq., ante. Oregon. Pond conditioned to keep building free from lien.s: dam- ages, owner's costs and expenses in defending foreclosure suits: See Henry v. Hand, 36 Oreg. 492, 59 Pac. Rep. 330. Washington. Failure to defend suits, neglect to pay liens, the owner entitled to recover, in addition to the amount of the liens which he had been compelled to pay, his reasonable expenses, including attorneys' fees in defending such suits: Crowley v. United States F. & G. Co., 29 Wash. 268, 69 Pac. Rep. 784. See Henry v. Hand, 36 Oreg 492, 59 Pac. Rep. 330. § 626 mechanics' liens. 570 loans to the material-man, and no recovery being sought on account of them.*" Extras. Amounts which are paid by the owner, in addi- tion to the contract cost, for correcting imperfections in the work of a contractor, who abandoned his contract, the work being completed by another contractor, the latter not being bound to know of defects that were not apparent to a com- petent and careful observer, or which were not called to his attention at the time ^ he entered into his contract, are for extra work, and the sureties of the first contractor are chargeable therefor; and the same rule applies to defective material.^" § 626. Bond of contractor on public work. Where a con- tractor for a public-school house gives a bond to secure its performance, providing that all persons furnishing material or labor should be paid, and containing a recital that it is for a valuable consideration, and that the bond shall inure to the benefit of all such persons, and guaranteeing such pay- ment, it is independent of the mechanic's-lien statute. The sureties are estopped from claiming that the bond is not such an undertaking as is required by the statute, the bond not being prohibited, nor against public policy or good morals, nor in contravention of any statute.^^ « Bateman Bros. v. Mapel, 145 Cal. 241, 244. 78 Pac. Rep. 734. Colorado. Measure of damages in action on bond as against con- tractor, the difference between the amount paid to the contractor and the value of improvements placed upon the property by him: See Routt V. Dils (Colo., May 6, 1907), 90 Pac. Rep. 67, 68; O'Driscoll v. Doyle, 31 Colo. 193, 73 Pac. Rep. 27. '^ Long Beach School Dist. v. Dodge, 135 Cal. 401, 406, 67 Pac. Rep. 499. See Long Beach School Dist. v. Lutge, 129 Cal. 409, 62 Pac. Rep. 36. Oklahoma. Failure to complete contract within the time specified in contract is not abandonment of the work for which damages, under the contract, should be allowed: American S. Co. v. Scott (Okl., Feb. 14, 1907), 90 Pac. Rep. 7. 51 Union S. M. Works v. Dodge, 129 Cal. 390, 394, 62 Pac. Rep. 41. See People's L. Co. v. Gillard, 136 Cal. 55, 58, 68 Pac. Rep. 576. Bond of contractor on state building: See Stats. 1875-76, p. 427, § 4, HenningN General Laws, p. 1092. See also "Notice," §§547 et seq., ante, and "Public Contract." §§192, 257, ante. rtah. Mechanic's lien cannot be filed on public building without express statutory permission: See Smith v. Bowman, 88 Pac. Rep. 687, 9 Lu R. A. (N. S.) 889. 571 THIRD PERSONS — SURETIES. § 626 It is not necessary for a material-man to first sue a school board for materials sold and delivered to the contractor for a schoolhouse, but the contractor's sureties are directly liable therefor when their undertaking secures the payment for such materials; and the fact that the board had funds on hand, more or less, at any given time, applicable to payment therefor, is no defense.^- Bond by trustees of State Agricultural College, securing- payment for material and labor used in construction of public building, valid, and enforceable by beneficiaries: Smith v. Bowman (Utah, Jan. 15, 1907), 88 Pac. Rep. 687, 9 L. R. A. (N. S.) 889. Liability of suretie.*^: See Montgomery v. Rief, 15 Utah 495, 50 Pac. Rep. 623. ^Vho may resort to bond. Persons performing labor upon or fur- nishing materials for a public building, not being entitled to a lien upon the property, a bond, conditioned for the payment of the penal sum to all persons who may become entitled to liens, cannot be ex- tended by implication beyond its terms to the payment of claims for such material or labor, under the rule that the liability of sureties cannot be extended by implication beyond the terms of their con- tract: Smith V. Bowman (Utah, Jan. 15, 1907), 88 Pac. Rep. 687, 9 L. R. A. (N. S.) 889. Washington. Bond given by contractor on public work: See Crane Co. v. ^tna I. Co., 43 Wash. 516, 86 Pac. Rep. 849. Bond on public contract: See Spokane & I. L. Co. v. Loy, 21 Wash. 501, 58 Pac. Rep. 672. ^ People's L,. Co. v. Gillard, 136 Cal. 55. 62. 68 Pac. Rep. 576. §627 MECHANICS LIENS. 572 CHAPTER XXXI. WAIVER, FORFEITURE, AND RELEASE OF LIEN. § 627. Waiver of lien. General principle. § 628. Same. Statutory provision. § 629. Same. Knowledge of lack of authority of employer, § 630. Same. Taking additional security. § 631. Same. Entry of judgment. § 632. Forfeiture by false or excessive claim or notice. § 633. Same. Illustrations. § 634. Release of lien. § 635. Same. Composition agreement. Definition. § 636. Same. Agreement to assign claims to owner. § 637. Same. Effect of composition agreement. § 627. Waiver of lien.^ General principle. It is not in- tended to cover the general subject of waiver. It is a gen- ' See "Release," §§634 et seq., post; "Impairment of Liens," §§284 et seq., ante; "Alterations of Contract," §§326 et seq., ante. Extinction of lien, generally, see Kerr's Cyc. Civ. Code, §§ 2909 et seq., und notes. See note 41 Am. Dec. 221. Owner cannot waive final certificate of arcliitect, which is a con- dition upon which the completion payment should be made, so far as concerns sublien-holders, who have served notice by way of gar- nishment of the payment, under Kerr's Cyc. Code Civ. Proc., § 1184; but such payment is sufficient, so far as concerns claimants who fail to give such notice: Valley L. Co. v. Struck, 146 Cal. 266. 272. 276. 80 Pac. Rep. 405, per Shaw, J. (Beatty, C. J., and Angellotti, J., specially concuriing, and holding that Sweeney v. Meyer, 124 Cal. 512, 57 Pac. Rep. 479, to the contrary, should be overruled). Lien not waived by sureties: See Ganahl v. Weir, 130 Cal. 237, 239, 62 Pac. Rep. 512. Colorado. Waiver of lien: See Aste v. Wilson, 14 Colo. App. 323, 59 Pac. Rep. 846. Hawaii. Claimant may rely upon personal liability of subcon- tractor, and also on lien against property: Hackfeld v. Hilo R. Co., 14 Hawn. 448, 453. Ltah. W^aiver, under Rev. Stats., §1391 (Laws 1894, ch. xli, §8): See Sandberg v. Victor G. & S. M. Co., 24 Utah 1, 66 Pac. Rep. 360; Elwell V. Morrow, 28 Utah 278, 78 Pac. Rep. 605 (lien not waived by failure to be made a party). AVasiiington. Absence of intention to enforce lien, no waiver: See Knudson-Jacob Co. v. Brandt (Wash., Sept. 25, 1906), 87 Pac. Rep. 43; Stringham v. Davis, 23 Wash. 568, 63 Pac. Rep. 230; Blumauer v. Clock, 24 Wash. 596, 64 Pac. Rep. 844, 85 Am. St. Rep. 966. But, in the early case of Heald v Hodder, 5 Wash. 677, 32 Pac. Rep. 728, it was held that lien claimant who performs labor upon the sole credit of the contractors, and with no intent to claim a lien, waives 573 WAIVER, FORFEITURE, AND RELEASE. § 627 eral principle, where no polic.y of the law is violated, that a party may, by as'reement. Avaive - a riglit created by the statute for his own benefit, and this applies to the meehanic's- lien statute also.^ his lien. The fact that the judgrnent of foreclosure was not ren- dered until after the time limited for the commencement of the action had expired will not defeat the lien: Pacific Mfg-. Co. v. Brown, 8 Wash. 347, 36 Pac. Rep. 273 (under Gen. Stats., § 1670). = See Kerr's Cye. Civ. Code, §§ 3268. 3513. and notes. = Bowen V. Aubrey, 22 Cal. 566. 571 (1858). See Levy v. Magnolia Lodg-e I. O. O. F., 110 Cal. 297, 309, 42 Pac. Rep. 887. UiKtin!;iii»4he(l: Griffith v. New York Life Ins. Co., 101 Cal. 627, 641, 36 Pac. Rep. 113, 4 Am. St. Rep. 96. See Kerr's Cyc. Civ. Code, § 3268, and note. Under act of 1S56, which required liens to be exhibited within a certain time, or be deemed waived, it was held that the act applied to liens created under the act, and not to other liens: Whitney v. Higgins, 10 Cal. 547, 551, 70 Am. Dec. 748. Montuna. See Miles v. Coutts, 20 Mont. 47, 49 Pac. Rep. 393: Wag- ner V. St. Peter's Hospital, 32 Mont. 206, 79 Pac. Rep. 1054, 1056; Missoula M. Co. v. O'Donnell, 24 Mont. 65, 60 Pac. Rep. 594. Nevada. Under the act of 1875, claimants were obliged to prove up their claims in an action pending, or be held to have waived them: Hunter v. Truckee Lodge, 14 Nev. 24, 29. Oregon. Hughes v. Lansing, 34 Oreg. 118, 55 Pac. Rep. 95, 75 Am. St. Rep. 574. A waiver of all claims for materials furnished the con- tractors is equivalent to the waiver of the right or privilege of claiming a lien therefor; and where an owner relies on a waiver of a subclaitnant, and pays tlie balance due to the contractor, as against the owner, such waiver is not void as a unilateral agreement: Id. And in the same case it is held that the right to claim a mechanic's lien for building material is not an interest in land, which, under the statute of frauds, the agent of the material-man cannot waive with- out written authoritj^ from the principal; and that where the agent has authority to represent the principal in carrying on the business of manufacturing and selling lumber and in filing mechanics' liens, the agent's waiver of a mechanic's lien for lumber sold by him for the principal is binding upon the principal. Any contract or agree- ment inconsistent with the existence of lien is deemed such waiver: Gray v. Jones, 47 Oreg. 40, 81 Pac. Rep. 813. Where the legal owner- ship of the land and the absolute ownership of the lien become vested in the same person, the intention governs the merger in equity. If this intention has been expressed, it controls. In the absence of such an expression, the intention will be presumed from what appear to be the best interests of the party, as shown by the circumstances: Title G. & T. Co. v. W^renn, 35 Oreg. 62, 56 Pac. Rep. 271, 275, 76 Am. St. Rep. 454. See S§ 586 et seq., ante, and "Rights of Owner," §§ 510 et seq., ante. Utali. Dwyer v. Salt Lake City Mfg. Co., 14 Utah 339, 47 Pac. Rep. 311 '(stipulation with the vendee of the premises that claimant will look to some other person for the payment of his claims for services performed thereon, and that all the claims have been paid). AVnsiiinglon. Stringham v. Davis, 23 Wash. 568, 63 Pac. Rep. 230. See Campl'Oll v. Vincent. S Wash. 650, 36 Pac. Rep. 685; Maris v. Clevenger, 29 W'ash. 395, 69 Pac. Rep. 1089 (loggers' liens). § 628 mechanics' liens. 574 § 628. Same. Statutory provision. Under the present statute it is not competent for the owner and contractor, or either of them, by any term of their contract, or otherwise, to waive, affect, or impair the claims and liens of other persons, whether with or without notice, except by their written con- sent, and any term of their contract to that effect is null and void.* * Kerr's Cye. Code Civ. Proc, § 1201. See Whittier v. Wilbur, 48 Cal. 175. 177. See §§ 510 et seq., ante. Xon-statutory original contract. As to whether this rule is appli- cable to non-statutory original contracts, see Sidlinger v. Kerkow, 82 Cal. 42, 22 Pac. Rep. 932. And see "Impairment of Liens," §§284 et seq., ante. ruder statute of 1858 it was held that where a contractor ex- pressly, by his valid contract, waived his right to the lien, his sub- contractor could not claim any such right, there being nothing in the statute prohibiting such forfeiture: Bowen v. Aubrey, 22 Cal. 566, 571 (1858). See Dore v. Sellers, 27 Cal. 588. 593. Colorado. It was intimated that the contractor could not cut off the right of the subcontractor to a lien by the original contract, at least not unless such was the clear intention: Jarvis v. State Bank, 22 Colo. 309, 45 Pac. Rep. 505, 55 Am. St. Rep. 129. A provision in a contract that the original contractor would not suffer any liens to be pleaded, set up, or asserted by any subclaimant, or if so done, would cause the same to be satisfied and canceled of record, is not a waiver of the contractor's lien: Aste v. 'Wilson, 14 Colo. App. 323, 59 Pac. Rep. 846. See '■ Sureties," §§ 605 et seq., ante. There may be a question whether or not the contractor may, merely by his contract with the owner, waiving his right to a lien, cut off the right of a subcontractor: Aste v. Wilson, 14 Colo. App. 323, 59 Pac. Rep. 846. Montana. Same ruling as text, independent of statute: Miles v. Coutts, 20 Mont. 47, 49 Pac. Rep. 393 (the case refers to the Pennsyl- vania rule followed in Dore v. Sellers, 27 Cal, 588, 593; but follows Whittier v. Wilbur, 48 Cal. 175, 177). Nevada. Lien not waived, where the contract provides that title remain in vendor of machinery until payments fully made: See Salt Lake H. Co. v. Chainman M. & E. Co., 128 Fed. Rep. 509, 137 Fed. Rep. 632. Aew Mexico. Voluntary deed of trust to third party for payment of lien claim does not bind claimant, and is waiver of lien, unless so expressly excepted by claimant: Post v. Fleming, 10 N. M. 476, 62 Pac. Rep. 1087, 1089. Oresion. W^aiver of lien by original contractor, by covenant in contract, that he will not allow "any lien or liens" to be filed, and that the premises shall be at all times free from any and all liens: Gray v. Jones. 47 Oreg. 40, 81 Pac. Rep. 813: Hand M. Co. v. Marks. 36 Oreg. 523, 52 Pac, Rep. 512, 53 Id. 1072, 59 Id. 549; Spears ^v. Law- rence, 10 Wash. 368. 38 Pac. Rep. 1049, 45 L. R. A. 789. See §§ 255 et seq., ante. 575 W.UVER, FORFEITURE, AXD RELEASE. §§ 629, 630 § 629. Same. Knowledge of lack of authority of em- ployer. Where the credit is given to the persou who is known by the claimant to have no authority from the owner, and there is no estoppel present, it may be considered a Avaiver of the lien.^ A contractor's surety may be regarded as waiving his lien, rather than as being estopped to assert one, as the elements of equitable estoppel are not present. § 630. Same. Taking additional security. The fact that the claimant has another lien, or that a note and mortgage were to be given for a part of the contract price under the contract,® or that an order was given to the subclaimant," is not thought to operate as a waiver of the lien. The acceptance of a note for an antecedent debt, generally speaking, does not operate to discharge or extinguish the 5 Ayers V. Green Gold M. Co., 116 Gal. 333. 336, 48 Pac. Rep. 221; Jurgenson v. DiUer, 114 Gal. 491, 492, 46 Pac. Rep. 610, 55 Am. St. Rep. 83. See "Agency," §§572 et seq., ante. AVashiuglon. As to waiver of lien by giving credit solely to con- tractor, see Huttig Mfg. Co. v. Denny Hotel Co., 6 Wash. 122, 126, 32 Pac. Rep. 1073. « See O'Connor v. Dingley, 26 Gal. 11, 18; Skym v. Weske Cons. Go. (Cal., Dec. IS, 1896), 47 Pac. Rep. 116. See, generally, waiver of lien by taking notes or other securities, note 41 Am. St. Rep. 761. Colorado. Claimant may abandon his lien claim at any time before judgment, and proceed by attachment, as in any action on contract: See Eagle G. M. Go. v. Bryarly, 28 Colo. 262, 65 Pac. Rep. 52, 53. New Mexico. Armijo v. Mountain E. Co., 11 N. M. 235, 67 Pac. Rep. 726. The lien is lost, where collateral security is taken, under Gomp. Laws, §2235; but a note is not such collateral security: Mountain Ei. Co. v. Miles, 9 N. M. 512, 56 Pac. Rep. 284. Oregron. Contra: Trullinger v. Kofoed, 7 Greg. 228, 33 Am. St. Rep. 708 (for whole contract price). Utah. Institution of an attacliment suit and levy of the writ is not a waiver of the lien: Salt Lake L. Co. v. Ibex M. & S. Co., 15 Utah 440, 49 Pac. Rep. 768, 62 Am. St. Rep. 944. ' Adams v. Burbank, 103 Cal. 646, 648, 37 Pac. Rep. 640; Clancy v. Plover, 107 Gal. 272, 275, 40 Pac. Rep. 394. Under act of IS.'iC, a party, having secured a mechanic's lien under the statute, did not forfeit or waive it by causing an attachment to be levied upon the property of the debtor to secure the same demand: Brennan v. Swasey, .16 Cal. 140, 142, 76 Am. Dec. 507. See SS 602 et seq., ante. Nevada. Skyrme v. Occidental M. Co., 8 Nev. 219 (note). AVaNliington. And the assignment of the moneys to be paid (by way of an accepted order), as security, will not be a waiver of his lien: Potvin v. Denny Hotel Co., 9 Wash. 316, 37 Pac. Rep. 320, 38 Pac. Rep. 1002. § 631 mechanics' liexs. 576 debt, unless it is received by express agreement as payment ; and in such case the right of action on tlie debt is merely suspended until the maturity of the note, and suit may be brought on the original debt in case of the non-payment of the accepted note.^ Where a material-man gives a receipt expressly stating the receipt of " payment by note," it is prima facie, though not conclusive, evidence that the note was taken as payment of the debt, and the lien is waived.^ By giving orders on a mining company for portions of the amount due, a miner is not divested of his right to his lien for labor, where the orders were not received by the trans- feree in payment of his demand against the lien claimant nor paid nor accepted by the mining company, but returned to the lien claimant before the filing of his claim of lien.^" § 631. Same. Entry of judgment. Under the present California code,^^ the right of personal action is preserved against the one personally liable. In an early case it was held that a claimant does not lose or waive his lien by commencing and i)rosecuting to judg- ment an action against the owners for the indebtedness to secure which the claim of lien was filed, the court saying, " ' There are two controlling reasons why a mechanic's lien will not be destroyed by the entry of a judgment. First, because there is merger of the claim, and not of the security. The first we have already considered ; the second is fully set forth by the supreme court of Pennsylvania, in the case of John Thompson, substantially as follows : "Whenever the law works an extinguishment, the creditor has gained a higher security ; the thing substituted is more beneficial to the cred- itor than the thing contracted for. Now, the debts of the mechanic or material-man were originally simple contract « Jenne v. Burger, 120 Cal. 444, 447, 52 Pac. Rep. 706. See Griffith v. Grog-an, 12 Cal. 317; Smith v. Owens. 21 Cal. 11; Welch v. Allington, 23 Cal. 322; Brown v. Olmstead, 50 Cal. 162; Comptoir D'Escompte v. Dresbach, 78 Cal. 15, 20 Pac. Rep. 28. Xew Mexico. Mountain E. Co. V. Miles, 9 N. M. 512, 56 Pac. Rep. 284 (note). ' Jenne v. Burger. 120 Cal. 444. 447, 52 Pac. Rep. 706. " Palmer v. Uncas Min. Co., 70 Cal. 614, 615, 11 Pac. Rep. 666. " Kerr's Cyc. Code Civ. Proc., § 1197. 577 WAIVER, FORFEITURE, AND RELEASE. § 632 debts, but for their security the act has created a lien on the building, so that the security which the creditors have in relation to the safety of the debts ranks with that of a judg- ment or mortgage. Therefore the acceptance of a bond and warrant of attorney, and the entering of a judgment on the bond, it not a waiver or extinguishment of a mechanic's lien.' The rule seems to us not only reasonable and just, but in accordance with the analogies of the laAv in cases of mort- gages, pledges, etc.. and we have been referred to no author- ity to the contrary'." ^- The right to a money judgment against the person who employetl C'e mechanic, or who purchased the materials, on the other hand, is not lost nor waived by a proceeding to enforce the lien, or in an attempt to recover from the owner the balance of the contract price remaining in his hands." § 632. Forfeiture by false or excessive claim or notice.^* Statutory provisions. It has already been seen that the lien is not forfeited by mere misstatement of the amount due, in the absence of fraud. ^^ " Germanla B. & L. Assoc, v. Wagner, 61 Cal. 349, 355, 356. Colorado. The recovery of a judgment for a debt does not bar an action to foreclose a Hen for the same debt: Marean v. Stanley, 5 Colo. App. 335 (1889). "It would seem, upon principle and authority, that notliing short of the payment of the debt by .satisfaction of the judgment would extinguish the right to enforce the lien against the security": Id. 337 (Gen. Stats., §2161. expressly reserved all other remedies). Utah. But see Garland v. Bear Lake & R. "W. & I. Co., 9 Utah 350, 34 Pac. Rep. 368. ^^ Bates V. Santa Barbara County, 90 Cal. 543, 548, 27 Pac. Rep. 438. See Kerr's Cyc. Code Civ. Proc., §1197. and note: "Cumulative Remedies," §§638 et seq., post; "Obligations of Owner," §§523 et seq., ante. Colorado. Remedy under a contract not affected by a lien or judg- ment thereon: See American Nat. Bank v. Barnard, 15 Colo. App. 110, 61 Pac. Rep. 200. Idaho. Waiver by coming into court of equity and asking that claim be paid out of the purchase price on sale on judgment on prior lien: See Idaho G. M. Co. v. Winchell, 6 Idaho 729, 59 Pac. Rep. 533, 9C Am. St. Rep. 290. " Montana. No court of equity ought, in the absence of an ex- press and positive statute, to liold that a person claiming a lien for more than he was entitled, lost his Hen, unless it clearly appeared that there was some fraud connected therewith: Nolan v. Lovelock, 1 Mont. 224, 229; Mason v. Germaine, 1 Mont. 263, 271; Black v. Appo- lonio, 1 Mont. 342. •= See §§412 et seq.. ante. Mech. Liens — 37 § 632 mechanics' liens. 578 Claim of lien. A recently enacted provision ^* enunciates the general law as follows : " No mistakes or errors in the statement of the demand, or of the amount of credits and offsets allowed, or of the balance asserted to be due to claim- ant, nor in the description of the property against which the claim is filed, shall invalidate the lien, unless the court finds that such mistake or error in the statement of the demand, credits, and offsets, or of the balance due, was made with the intent to defraud." The statute ^^ provides that " any person who shall wilfully include in his claim filed under section eleven hundred and eighty-seven, work or materials not performed upon or fur- nished for the property described in the claim, shall forfeit his lien." • As to notice to owner. The provision of the code ^^ is : " Any person who shall wilfull}' give a false notice of his claim to the owner under the provisions of section eleven hundred and eighty-four, shall forfeit his lien." It is not clear whether section twelve hundred and three a, passed in 1907, has any application to the notice to owner provided for in section eleven hundred and eighty-four. This provision seems to be applicable only to the notice to the owner, dis- cussed in a preceding part of this work, and not to the claim of lien.^® Construction. The provisions of section twelve hundred and two, above quoted, are penal in their character, and must be strictly construed,^" and the evidence should be clear and convincing that the violation was wilful.^^ " Kerr's Stats, and Anidts. 1906-07, p. 482: Kerr's Cyc. Code Civ. Proc, § 1203a. !• Kerr's Cyc. Code Civ. Proc., § 1202. Hawaii. Abandonment of contract by contractor may work for- feiture of his right to lien without working forfeiture of that of material-man: Pacific H. Co. v. Lincoln, 12 Hawn. 358, 361. " Kerr's Cyc. Code Civ. Proc, § 1202. " See "Notice," §§547 et seq., ante; Schallert-Ganahl L. Co. v. Neal, 91 Cal. 362, 366, 27 Pac. Rep. 743. »> Schallert-Ganahl L. Co. v. Neal, 91 Cal. 362,' 365, 27 Pac. Rep. 743; Pacific Mut. L. Ins. Co. v. Fisher, 106 Cal. 224, 235, 39 Pac. Rep. 758. See "Construction," §§24 et seq., ante; "Evidence," §§822 et seq., post. ^ Schallert-Ganahl L. Co. v. Neal, 91 Cal. 362, 365, 27 Pac. Rep. 743; Pacific Mut. L. Ins. Co. v. Fisher. 106 Cal. 224. 235. 39 Pac. Rep. 758; Barber v. Reynolds, 44 Cal. 519, 533 (under § 11 of the act of 1862; the 579 WAIVER, FORFEITURE, AND RELEASE. § 633 § 633. Same. Illustrations. The subject of forfeiture having already been considered to some extent,-- we shall at this time content ourselves with a few illustrations of the general rule. Excessive material. Excessive price. Where the claim filed contains no ai'ticles, except such as are the subject of lien, the bare fact that a claimant has filed a claim for too much lumber, or set too high a price on it, would not, in the absence of fraud, defeat his right to foreclose the lien for so much material as was actually used in the improvement.^^ Non-lienable materials. Although a claim of lien may be, in part, for articles not the subject of lien, the court should permit the lien claimant, by proof, to make the necessary segregation, take out the value of such articles, and declare a lien for the balance, unless there is something to show a court saying-, "There is no such discrepancy appearing here between the liens claimed and tlie amounts adjudged to have been really due, as would suggest a doubt as to the good faith of the parties filing their claims under the statute"). And where the record does not contain any evidence concerning the claim, a finding of the court in favor of the validity of the notice will not be set aside upon a mere surmise that the statute was wilfully and intentionally violated: Pa- cific ]\Iut. L. Ins. Co. v. Fisher, supra. See " Evidence," §§ 822 et sea-, post. Montana. INIason v. Germaine, 1 -Mont. 271. " Kerr's Cyc. Code Civ. Proc., §§412 et seq., ante. ^ Harmon v. San Francisco & S. R. R. Co., 86 Cal. 617, 619, 25 Pac. Rep. 124. See Continental B. & L. Assoc, v. Hutton, 144 Cal. 609, 611, 78 Pac. Rep. 21. Colorado. See Cannon v. Williams, 14 Colo. 21, 23 Pac. Rep. 456. New Mexico. Springer L,. Assoc, v. Ford, 168 U. S. 513, bk. 42 L. ed. 562, IS .Sup. Ct. Rep. 170. Oregfon. Fitch v. Howitt, 32 Oreg. 396. 52 Pac. Rep. 192. So an innocent mistake in addition will not vitiate the lien: Harrisburg L. Co. V. Washburn, 29 Oreg. 150, 170, 44 Pac. Rep. 390. So where the claim did not allow sufficient credit, it being done in good faith: Rowland v. Harmon, 24 Oreg. 529, 34 Pac. Rep. 357; Ainslie v. Kohn, 16 Oreg. 363, 375, 19 Pac. Rep. 97. The lyireneral rule, in tlie absence of statute, being that where, in tlie claim filed, there is an honest mistake in the amount or price of labor, or the quantity or value of material furnished, about which there might be a difference of opinion, requiring evidence to ascertain the truth of the facts, It will not defeat tlie lien: Nicolai v. Van Fri- dagh, 23 Oreg. 1^9, 31 Pac. Rep. 2SS. \Vasliiug'ton. Too much material: Mhittier v. Stetson & P. M. Co., 6 Wash. 190, 33 Pac. Rep. 393, 36 Am. St. Rep. 149; Peterman v. Mil- waukee B. Co., 11 Wash. 199, 39 Pac. Rep. 452. See Bolster v. Stocks, 12 Wash. 460, 469, 43 Pac. Rep. 532, 534, 1099. And see Dexter, H. & Co. v. Spurkman, 2 Wash. 165, 25 Pac. Rep. 1070; Dexter, H. & Co. v. Wiley, 2 Wash. 171, 25 Pac. Rep. 1071. §§ 634, 635 mechanics' liens. 580 wilful attempt to claim for iioii-lienable items or to assert a wilfully false claim. -^ § 634. Release of lien. The general subject of release will not be here considered.-"' A release obtained by fraud, from one who was only inter- ested in a share of the profits of the contract, has no effect upon another's interest.-® § 635. Same. Composition agreement. Definition. A composition agreement is a contract made upon a sufficient consideration, between an insolvent or embarrassed debtor -* Gordon H. Co. v. San Francisco & S. R. R. Co., 86 Cal. 620, 622, 25 Pac. Rep. 125; Malone v. Big- Flat G. M. Co., 76 Cal. 578, 586, 18 Pac. Rep. 772; Snell v. Payne, 115 Cal. 218, 222, 46 Pac. Rep. 1069 ("it must be so wilfully false as to amount to a fraud "). See Continental B. & L. Assoc. V. Hutton, 144 Cal. 609, 611, 72 Pac. Rep. 21. Nevada. The mere fact that charges have been included in the statement for which the law allows no lien will not defeat the por- tion for which a lien is given, when the charges are separately stated: Maynard v. Ivey, 21 Nev. 241, 29 Pac. Rep. 1090. Oregon. Fitch v. Howitt, 32 Oreg. 396, 52 Pac. Rep. 192; Harris- burg L. Co. V. Washburn, 29 Oreg. 150, 44 Pac. Rep. 390; Allen v. El- wert, 29 Oreg. 428, 44 Pac. Rep. 823, 48 Pac. Rep. 54. See Getty v. Ames, 30 Oreg. 573, 48 Pac. Rep. 515, 60 Am. St. Rep. 835; Title G. & T. Co. V. Wrenn, 35 Oreg. 62, 56 Pac. Rep. 271, 76 Am. St. Rep. 454. This is the rule if they are susceptible of being segregated: Cochran v. Baker, 34 Oreg. 555, 56 Pac. Rep. 641. But where the items for which a lien is given cannot be segregated upon the face of the claim from those for which a lien is not given, the lien is lost: Hughes v. Lansing, 34 Oreg. 118, 55 Pac. Rep. 95, 75 Am. St. Rep. 574; Williams v. Toledo Coal Co., 25 Oreg. 426, 36 Pac. Rep. 159, 42 Am. St. Rep. 799; Dalles L. Co. V. Wasco Mfg. Co., 3 Oreg. 527; Kezartee v. Marks, 15 Oreg. 529, 16 Pac. Rep. 407. AVashington. So where a claim stated that certain material was furnished, specifying the wrong kind by mistake, tlie amount not being increased: Bolster v. Stocks, 13 Wash. 460, 468, 43 Pac. Rep. 532, 534, 1099. '■'■' See Kerr's Cyc. Civ. Code, §§ 1541 et seq., and notes. See " Waiver and Forfeiture," §§ 527 et seq., ante. Note for release of sureties' lien ^vitliout consideration: Blyth v. Robinson, 104 Cal. 239, 242, 37 Pac. Rep. 904. See " Sureties," §§ 605 et seq., ante. Release of assignor of contract: See "Assignees," §§588 et seq., ante. Nevada. Unsatisfied judgment against agent, no release: Dickson V. Corbett, 11 Nev. 277. AVasIiington. Release as to one of several houses: See Powell v. Nolan, 27 W^ash. 318, 67 Pac. Rep. 712, 720. ■" South Fork C. Co. v. Gordon, 73 U.S. (6 Wall.) 561, bk. 18 L. ed. 894. 581 WAIVER, FORFEITURE, AND RELEASE. § 636 and his creditors, or a considerable proportion of them, whereby the latter, for the sake of immediate or earlier pay- ment, agree to accept a dividend less than the Avhole amount of their claims, to be distributed pro rata in discharge and satisfaction of the whole.^^ § 636. Same. Agreement to assign claims to owner. In view of the definition given in the last preceding section, a contract that is not one for the payment by the debtor of any sum or thing, and does not purport to be, and is not intended as, a release of the debtor, is not technically a composition agreement. Such an agreement is one where the owner contracts to pay the money still due to the contractor, first paying all the claims for labor in full, and the remainder among all the other lien claimants, in proportion to the whole amount of such claims, and the claimants agree to assign their claims to the owner, and if any claimant should refuse to accept his proportion, to prove their claims valid or return the amount paid. Such an agreement does not amount to an accord, but constitutes a valid and binding agreement. "Where the lien claimants thus mutually agree to forego their right to pursue the usual method of enforcing their demands in consideration of being paid at a given time, the engage- ment of each is a sufficient consideration for the engagement of the others to do the same, and the owner's acceptance of the contract, and his payment thereunder, are a sufficient consideration to support the agreement of the claimants.-- Pro rata amount left blank. The fact that, in such an agreement, blanks are left therein, relative to tlie pro rata to be paid the lien claimants, does not make the agreement incomplete, as the contract affords the means of supplying the blanks with certainty, namely, the amount due from the owner to be applied ratably among demands of record, and especially where the amount was known to the parties at the time of making the agreement. IMoreover, if such agreement simply is to divide the sum due from the owner of the build- er Wilson V. Samuels, 100 Cal. 514, 518. 35 Pac. Rep. 148. See S 67 of the Act to EstablLsh a Uniform System of Bankruptcy throughout the United States, approved .Tuly 1. 1898, 1 Fed. htats. Ann. 688. ** Wilson V. Samuels, 100 Cal. 514, 518, 35 Pac. Rep. 148. § 637 MECHAXICS' LIENS. 582 ing among the subelaimants, without other or more accurate specification, it would be ascertainable and valid, and would afford a criterion by which to ascertain the amount due. and its disposition. -'^ Such agreement does not constitute an accord between the parties, but constitutes a valid and binding agreement, authorizing the owner to disburse the fund in hand; and to permit a claimant to repudiate such an executed agreement as to all the other parties, and recover from the owner the entire sum due him from the contractor, would be to permit him to take advantage of his own wrong.^" Where the owner does not seek any compromise or compo- sition of the claims for which his property is liable, and is at all times willing to pay all that he owes the contractor, in the mode provided by law, it is not for his benefit that such agreement is made, but for that of the creditors of the con- tractor.^^ § 637. Same. Effect of composition agreement. A com- position agreement, executed by claimant and other creditors of the contractor, agreeing to release the contractor and owner upon the terms specified, operates to extinguish the liability which the lien was filed to secure, and the considera- tion therefor consists of the mutual promises of the signing creditors to take something less than or different from what they were entitled to under their previous contracts. ^- AU of the creditors need not sign such an agreement, to make it valid, in the absence of a condition in the contract to that effect ; but it is sufficient if two or more sign the same, the signature and promise of each being sufficient considera- tion for the agreement of the others.^^ » WMlson V. Samuels, 100 Cal. 514, 518, 35 Pac. Rep. 148. 20 Wilson V. Samuels, 100 Cal. 514, 518, 35 Pac. Rep. 148; Schroeder V. Pissis, 128 Cal. 209, 213, 60 Pac. Rep. 758. See § 637, post. 31 Wilson V. Samuels. 100 Cal. 514, 519, 35 Pac. Rep. 14& ^ Schroeder v. Pissis, 128 Cal. 209, 213, 60 Pac. Rep- 758. ^ Schroeder v. Pissis, supra. See § 636, ante. Modifying agreeiiient of eompo.sition by oral qiialiftention and con- ditions to the written "contract: See Schroeder v. Pissis, 128 Cal. 209, 2i3. 60 Pac. Rep. 758. Oregon. Release by contractor of all claims ag-ainst owner for breach of contract: Hand M. Co. v. Marks, 36 Oreg. 523, 59 Pac. Rep. 549, 552. PAET II. PLEADING AND PROCEDUEE. CHAPTER XXXII. REMEDIES. § 638. Cumulative remedies. Personal action. § 639. Same. Election, when several suits commenced. § 640. Same. Nature of action to foreclose lien. § ()41. Same. Actions by original contractor. § 642. Same. Actions by subclaimants. § 643. Same. Actions by owner's laborers and material-men. § 644. Same. Actions by owner. § 645. Provisional remedies. Statutory provision. § 646. Same. Attachment. § 647. Same. Materials exempt from attachment. § 648. Same. Injunction. § 638. Cumulative remedies. Personal action. Gener- ally speaking, an action in personam lies by the lien claimant against the person liable, under the general principles of contract.^ 1 Central L. & M. Co. v. Center, 107 Cal. 193, 197, 40 Pac. Rep. 334; Bates v. Santa Barbara County, 90 Cal. 543, 547, 27 Pac. Rep. 438; McMenomy v. White, 115 Cal. 339, 343, 47 Pac. Rep. 109; Kerr's Cyc. Code Civ. Proc, § 1197, and note. See Marchant v. Hayes, 117 Cal. 669, 671, 49 Pac. Rep. 840, s. c. 120 Cal. 137, 139, 52 Pac. Rep. 154. See "Liability of Owner," §§523 et seq., ante; "Liability of Con- tractor," §§64 et seq., ante; "General Rights of Original Contractor," §§ 61 et seq., ante. Cumulative remedie.s: See Bianchi v. Hughes, 124 Cal. 24, 56 Pac. Rep. 610. Montana. O'Rourke v. Butte Lodge, 19 Mont. 541, 48 Pac. Rep. 1106. !>iplittiug denuindM: See Boucher v. Powers, 29 Mont. 342, 74 Pac. Rep. 942. Oregon. At law: Willamette L. Co. v. McLeod, 27 Oreg. 272. Utah. Remedial provisions liberally construed: Elwell v. Morrow, 28 Utah 27S, 78 Pac. Plep. 605, 607. \Vn.shinston. Potvin v. Wickersham, 15 Wash. 646, 647, 47 Pac. Rep. 25. See Peterman v. Milwaukee B. Co., 11 Wash. 199, 200, 39 Pac. Rep. 452; Fairhaven L. Co. v. Jordan, 5 Wash. 729, 736, 32 Pac. Rep. 729. (583) I § 639 mechanics' liens. 584 Express contract. Common counts. A valid contract be- tween the owner and the contractor may be sued on specially, without foreclosing the lien, or the common counts in as- sumpsit may be used, in accordance with the general rules applicable to such counts.- Where the remedies given are cumulative, both may be pursued at the same time.' But there can be but one sat- isfaction of the claim, with costs and counsel fees, when allowed.* § 639. Same. Election, when several suits commenced. In case of an attempt to pursue cumulative remedies in sepa- rate actions, such as an action to foreclose the lien upon the property, and a suit upon the account with an attachment, plaintiff may be put to his election.^ 2 Castag-nino v. Balletta. 82 Cal. 250, 256, 23 Pac. Rep. 127. See "Pleadings," §S 670 et seq., post. Action on qnantiiiu meruit, based upon request: De Prosse v. Royal E. D. Co., 135 Cal. 408, 410, 67 Pac. Rep. 502. 3 Kerr's Cyc. Code Civ. Proc, §§ 1197, 1203; Brennan v. Swasey, 16 Cal. 140, 142, 76 Am. Dec. 507; Bates v. Santa Barbara County, 90 Cal. 543, 548, 27 Pac. Rep. 438. See "Waiver of Lien," §§ 627 et seq., ante. Colorado. Marean v. Stanley, 5 Colo. App. 335, 38 Pac. Rep. 395. Ha-n-aii. Election of remedies: See Bierce v. Hutchins, 16 Hawn. 418, 717. Montana. O'Rourke v. Butte Lodge, 19 Mont. 541, 48 Pac. Rep. 1106; American S. & L. Assoc, v. Burghardt, 17 Mont. 545, 43 Pac. Rep. 923. Personal judgment allowed in action to foreclose lien: Western P. Co. V. Fried, 33 Mont. 7, 81 Pac. Rep. 394, 114 Am. St. Rep. 799. See Goodrich L. Co. v. Davie, 13 Mont. 76, 32 Pac. Rep. 282; Aldritt v. Panton, 17 Mont. 187, 42 Pac. Rep. 767; Riale v. Roush, 1 Mont. 474. Utah. But see Garland v. Irrigation Co., 9 Utah 350, 34 Pac. Rep. 368. AVashington. Potvin v. Wickersham, 15 Wash. 646, 647, 47 Pac. Rep. 25. * Kerr's Cyc. Code Civ. Proc, § 1203. As to bond, see Malone v. Big Flat G. M. Co., 76 Cal. 578, 586, 18 Pac. Rep. 772. Colorado. Marean v. Stanley, 5 Colo. App. 335, 38 Pac. Rep. 395; but compare Orman v. Ryan, 25 Colo. 383, 55 Pac. Rep. 168. ' Brennan v. Swasey, 16 Cal. 140, 142, 76 Am. Dec. 507. Attachment for money due is not waiver of lien, under mechanic's- lien law: Brennan v. Swasey, supra: Bates v. Santa Barbara County, 90 Cal. 543, 548, 27 Pac. Rep. 438. See Roberts v. Wilcoxson, 36 Ark. 363; Salt Lake L. Co. v. Ibex M. & S. Co., 15 Utah 440, 444, 49 Pac. Rep. 768. See notes 79 Am. Dec. 277; 35 Am. St. Rep. 553. 585 REMEDIES. § 640 § 640. Same. Nature of action to foreclose lien. The action to foreclose the lien is a suit in equity," and in many Hawaii. Principles of election of remedy: See Bierce v. Hutchins, 16 Hawn. 717. TIS. Nevada. Personal judgment against agent of owner; subsequent foreclosure of lien against owner allowed: Dickson v. Corbett, 11 Nev. 277. « Brock V. Bruce, 5 Cal. 279, 280; Curnow v. Happy Valley G. & H. Min. Co., 68 Cal. 262, 264, 268, 9 Pac. Rep. 149. See Worden v. Ham- mond, 37 Cal. 61, 65, and Barber v. Reynolds, 33 Cal. 497, 502. Action to foreolo.se lieu against property and fund, equitable suits: Weldon v. Superior Court, 138 Cal. 427, 429, 71 Pac. Rep. 502. See Dunlop V. Kennedy (Cal., Aug. 31, 1893), 34 Pac. Rep. 92, 95 (rehear- ing granted). Suit to foreclose lien for labor on threshing-machine, suit in equity: Clark V. Brown, 141 Cal. 93, 95, 74 Pac. Rep. 548. Actions to enforce meclianics' liens: See note 11 L. R. A. 743. Alaska. Russell v. Hayner, 2 Alas. 703 (Dig.), 130 Fed. Rep. 90, 64 C. C. A. 424. Colorado. Joralmon v. McPhee, 31 Colo. 26, 71 Pac. Rep. 419, 422; San Juan etc. Co. v. Finch, 6 Colo. 214 (prior to code); Williams v. Uncompahgre C. Co., 13 Colo. 469, 22 Pac. Rep. 806; Cary Hardware Co. V. McCarty, 10 Colo. App. 200, 208, 50 Pac. Rep. 744; Marean v. Stanley, 5 Colo. App. 335; Bradbury v. Butler, 1 Colo. App. 430, 29 Pac. Rep. 463. Idaho. Idaho & O. L. Imp. Co. v. Bradbury, 132 U. S. 509, bk. 33 L. ed. 433, 10 Sup. Ct. Rep. 177. See Robertson v. Moore, 10 Idaho 115, 77 Pac. Rep. 218; Christensen v. Hollingsworth, 6 Idaho 87, 53 Pac. Rep. 211; Sandstrom v. Smith (Idaho, June 20, 1906), 86 Pac. Rep. 416. Montana. Cook v. Gallatin R. Co., 28 Mont. 340, 72 Pac. Rep. 678; Marsh v. Morgan, 18 Mont. 19, 44 Pac. Rep. 85; Simonton v. Kelley, 1 Mont. 483; Riale v. Roush, 1 Mont. 474; Montana O. P. Co. v. Boston & M. C. & S. Min. Co., 27 Mont. 288, 70 Pac. Rep. 1114; Gilchrist v. Helena H. S. Co. (Mont.), 58 Fed. Rep. 708; O'Rourke v. Butte Lodge, 19 Mont. 541, 48 Pac. Rep. 1106. See Marsh v. Morgan, 18 Mont. 19, 44 Pac. Rep. 85; Alvord v. Hendrie, 2 Mont. 115; Mason v. Germaine, 1 Mont. 263, 267; Mochon v. Sullivan, 1 Mont. 470, 473; Davis v. Alvord, 94 U. S. 545. bk. 24 L. ed. 2S3. Fact tliat pergonal judgment is rendered for the amount due, with directions that if the same should not be satisfied out of other prop- erty of the debtor, the property upon which the lien is adjudged to exist should be sold and the proceeds applied to the payment, does not change the character of the suit from one of equitable cognizance and convert it into an action at law: Davis v. Alvord, 94 U. S. 545, bk. 24 L. ed. 283. New Mexico. Ford v. Springer L. Assoc, 8 N. M. 37, 41 Pac. Rep. 541: Hobbs V. Spiegelberg, 13 N. M. 363, 5 Pac. Rep. 529; Straus v. Finane, 3 N. M. 398, 5 Pac. Rep. 729; Finane v. Hotel & Imp. Co., 3 N. M. 411, 5 Pac. Rep. 725; Rupe v. New Mexico L. Assoc, 3 N. M. 397. 555, 9 Pac. Rep. 301; Houghton v. Hotel Co., 3 N. M. 419, 5 Pac. Rep. 729. See Post v. Miles, 7 N. M. 317, 34 Pac. Rep. 586. Oregon. Allen v. Elwert, 29 Oreg. 428, 44 Pac. Rep. 823, 48 Id. 54; Ming Yue v. Coos Bay R. Co., 24 Oreg. 392. rtah. Mammoth M. Co. v. Salt Lake M. Co., 151 LT. S. 447, 450, bk. 38 L. ed. 229, 14 Sup. Ct. Rep. 384. Washington. Powell v. Nolan, 27 Wash. 318, 67 Pac Rep. 712, 718. § 641 mechanics' liens. 586 particulars it resembles an action to foreclose a mortgage/ It is also in the nature of a proceeding in rem.* But in this form of action questions of title cannot be adjudicated." § 641. Same. Actions by original contractor. The ori- ginal contractor has an action in personam against his em- ployer for the contract price on a valid original contract performed by the contractor. It is only when the plan of the owner has been substantially embodied in the work that the court can have an occasion to estimate the deficiency. The authorities are very clear upon this point. There is a variety of cases to which the so-called modern equitable E^quitnble lu its nature: Harrington v. Miller, 4 Wash. 808, 811, 31 Pac. Rep. 325 (under §1677); Wheeler v. Ralph, 4 Wash. 617, 630, 30 Pac. Rep. 709; Fox v. Nachtsheim, 3 Wash. 684, 29 Pac. Rep. 140; In- stallment B. & L. Co. V. Wentworth, 1 Wash. 467, 469, 25 Pac. Rep. 298. See Washington I. W. Co. v. Jensen, 3 Wash. 584, 28 Pac. Rep. 1019. And it cannot be converted into a suit at law by setting up a legal defense by way of counterclaim: Kilroy v. Mitchell, 2 Wash. 407, 26 Pac. Rep. 865; Installment B. & L. Co. v. Wentworth, 1 Wash. 467, 25 Pac. Rep. 298. Wyoming. The district court had " full jurisdiction, upon its law side, to administer the mechanic's lien": Fein v. Davis, 2 Wyo. 118, 122. ' Whitney v. Higgins, 10 Cal. 547, 551, 70 Am. Dec. 748. See Worden V. Hammond, 37 Cal. 61, 65. See " General Nature of Lien," § 9, ante. New Mexico. Hobbs v. Spiegelberg, 3 N. M. 364, 5 Pac. Rep. 529. Washington. Harrington v. Miller, 4 W'ash. 808, 811, 31 Pac. Rep. 325. See Washington I. W. Co. v. Jensen, 3 Wash. 584, 28 Pac. Rep. 1019; Fox v. Nachtsheim, 3 Wash. 684, 29 Pac. Rep. 140. s Van Winkle v. Stow, 23 Cal. 457; Booth v. Pendola, 88 Cal. 36, 44, 23 Pac. Rep. 200, 24 Id. 714, 25 Id. 1101. See " Nature of Lien," § 9, ante. Colorado. Marean v. Stanley, 5 Colo. App. 335. But is it not, as to the principal basis of the action, such a proceeding: Davis v. Mouat L. Co., 2 Colo. App. 381, 31 Pac. Rep. 187. Montana. O'Rourke v. Butte Lodge, 19 Mont. 544, 48 Pac. Rep. 1106; Mochon V. Sullivan, 1 Mont. 470, 472. Nevada. Under the act of 1875, it was a proceeding to enforce not only the lien of the plaintiff, but also all the recorded liens: Hunter V. Truckee Lodge, 14 Nev. 24, 29. Oregon. Under Hill's Ann. Laws, §3677, "a suit to enforce a par- ticula.- mechanic's lien is, in effect, a proceeding to enforce the liens of all lien claimants, parties to the record": Title G. & T. Co. v. Wrern, 35 Oreg. 62, 56 Pac. Rep. 271, 76 Am. St. Rep. 454. AVasliington. Douthitt V. MacCulsky, 11 Wash. 601, 606, 40 Pac. Rep. 186; Chevret v. Mechanics' M. & L. Co., 4 Wash. 721, 31 Pac. Rep. 24. B Worden v. Hammond, 37 Cal. 61, 65; Williams v. Mountaineer G. M. Co., 102 Cal. 134, 143, 34 Pac. Rep. 702, 36 Pac. Rep. 388. 587 REMEDIES. § 64:1 rule has iDeen applied. These have already been considered, and what was elsewhere said will not be repeated.^" Breach of valid contract. Where the original contract is valid, the original contractor has also an action for dam- ages for breach of contract by the owner, and may recover the profits which he would have made had he been allowed to complete the work.^^ Action upon implied contract. Upon a rescission by reason of a breach justifying the contractor in abandoning the contract/- or upon prevention of performance, he may have an action in personam on the implied contract, for the value of the work done and materials furnished. ^^ Upon breach of contract by the owner, preventing performance, the contractor may treat contract as terminated, and recover profits, and the original contract is continued in force for that purpose.^* And he may foreclose a lien upon such im- plied contract.^^ And the contractor, on his failure to carry out the exact terms of the valid contract, under certain cir- " See "Performance," §§334 et seq., ante; Perry v. Quackenbush, 105 Cal. 299, 307, 38 Pac. Rep. 740; Marchant v. Hayes, 117 Cal. 669, 49 Pac. Rep. 840; Harlan v. Stufflebeem, 87 Cal. 508, 512, 25 Pac. Rep. 686. See "Liability of Owner," §§523 et seq., ante; "Complaint," §§659 et seq., post. AViiMliing-ton. The contractor who deliberately furnishes inferior materials or work cannot recover on the contract: Schmidt v. City of Nortli Yakima, 12 Wasli. 121, 40 Pac. Rep. 790. 11 Cox V. McLaughlin, 54 Cal. 605, 606. So of breach of contract by a county: McPherson v. San Joaquin County (Cal., March 24, 1S99), 56 Pac. Rep. 802. And also expenditures made in preparing to do the work: O'Connell v. Main etc. Hotel Co., 90 Cal. 515, 27 Pac. Rep. 373. As to damages arising from subcontracts, see same case. Coloratlo. See Florence O. & R. Co. v. Reeves, 13 Colo. App. 95, 56 Pac. Rep. 674 (for delay and expenses). '- See "Abandonment," §§358.et seq., ante, and "Performance," §§ 334 et seq., ante. " Porter v. Arrowhead R. Co., 100 Cal. 500, 502, 35 Pac. Rep. 146; Golden Gate L. Co. v. Sahrbacher, 105 Cal. 114, 116, 38 Pac. Rep. 635; Cox V. McLaughlin, 54 Cal. 605, 606; Adams v. Burbank, 103 Cal. 646, 649, 37 Pac. Rep. 640; Cox v. Western Pac. R. Co., 47 Cal. 87, 89. See " Performance," §§ 334 et seq., ante. Colorndo. McGonigle v. Klein, 6 Colo. App. 306, 40 Pac. Rep. 465. Actiou on quantum meruit: See Cox v. McLaughlin, 76 Cal. 60, 64, 18 Pac. Rep. 100, 9 Am. St. Rep. 164. " McConnell v. Corona City W. Co., 149 Cal. 60, 64, 85 Pac. Rep. 929. '= Golden Gate L. Co. v. Sahrbacher, 105 Cal. 114, 116, 38 Pac. Rep. 635. See Porter v. Arrowhead R. Co., 100 Cal. 500, 502, 35 Pac. Rep. 146; Adams v. Burbank, 103 Cal. 646, 650, 37 Pac, Rep. 640; Neihaus v Morgan (Cal., June 2, 1896), 45 Pac. Rep. 255. § 612 mechanics' liens. 588 cumstances elsewhere stated, may recover on the implied contract, less damages sustained by the owner.^*^ Where the statutory original contract is void, the con- tractor has no action on the express contract, for dam- ages or otherwise, against the owner ; ^^ but he has an action on the implied contract, in personam, against the owner, for the reasonable value of the labor performed and materials furnished; the owner deriving a benefit thereby.^* Under such void contract, however, he has no action to foreclose a lien on the implied contract.^'' Against subclaimants. The contractor also has an action against subclaimants for breach of the contract betweea himself and such subclaimants.-" § 642. Same. Actions by subclaimants. Subclaimants have an action in personam against the contractor,-^ subcon- tractor,-- or person with whom they contracted, on the con- tract, or for breach of it ; -^ and, under the general prin- ts Perry v. Quackenbush, 105 Cal. 299, 307, 38 Pac. Rep. 740. See " Performance," §§ 334 et seq., ante. " Palmer v. White, 70 Cal. 220, 11 Pac. Rep. 647. See Rebman v. San Gabriel V. L. & W. Co., 95 Cal. 390, 394, 30 Pac. Rep. 564. " Rebman v. San Gabriel V. L. & W. Co., 95 Cal. 390, 394, 30 Pac. Rep. 564; Spinney v. Griffith, 98 Cal. 149, 154, 32 Pac. Rep. 974; Hol- land V. Wilson, 76 Cal. 434, 18 Pac. Rep. 412; Covell v. Washburn, 91 Cal. 560, 27 Pac. Rep. 859; Morris v. Wilson, 97 Cal. 644, 647, 32 Pac. Rep. 801; Kuhlman v. Burns, 117 Cal. 469, 49 Pac. Rep. 585; Marchant V. Hayes, 117 Cal. 669, 672, 49 Pac. Rep. 840. See Kiessig v. Allspaugh, 91 Cal. 234, 27 Pac. Rep. 655. 13 L. R. A. 418. See §§ 523 et seq., and " Effect of Void Contract," §§ 319 et seq., ante. " Spinney v. Griffith, 98 Cal. 149, 154, 32 Pac. Rep. 974. But see Cummings v. Ross, 90 Cal. 68, 71, 27 Pac. Rep. 62, where an action upon an implied contract was allowed in the case of a non-statutory original contract, void by reason of fraud. -" See §§ 61 et seq., ante. 21 Utah. See Garland v. McMartin, 8 Utah 150, 30 Pac. Rep. 365. Wa.>»liington. Potvin v. W*ickersham, 15 Wash. 646, 47 Pac. Rep. 25; and where copartners enter into the original contract, the subsequent withdrawal of one of the partners does not relieve the contractor from liability: Stetson & P. M. Co. v. McDonald, 5 Wash. 496, 32 Pac. Rep. 108. ^ Davies-Henderson L. Co. v. Gottschalk, 81 Cal. 641, 647, 22 Pac. Rep. 860. See McMenomy v. White, 115 Cal. 339, 343, 47 Pac. Rep. 109; Marchant v. Hayes, 120 Cal. 137, 139, 52 Pac. Rep. 154; Humboldt L. M. Co. v. Crisp, 146 Cal. 686. 688, 81 Pac. Rep. 30, 106 Am. St. Rep. 75, 2 Am. & Eng. Ann. Cas. 811". =3 See "Rights of Subcontractors," §§70 et seq., ante; "Material- men," §101, ante; "Laborers," §§112 et seq., ante. Montana. See Gilliam v. Black, 16 Mont. 217, 40 Pac. Rep. 303. 589 REMEDiEg, § 643 ciples of contracts, upon rescission or breach of their own contracts, they may sue such person in personam on the implied contract for the reasonable value of the labor or materials.-* Subclaimants, under a valid contract, also have an action against the owner to foreclose a lien upon the property, to the extent of the amount due the contractor at the time of filing the claim of lien,^^ or of service of notice on the owner ; -" and to foreclose a lien upon the fund, or in per- sonam against the owner or employer, to the extent of the amount due at the time of such service, or to become due thereafter.-^ Under a void contract, or where the provisions of section eleven hundred and eighty-four of the Code of Civil Proce- dure, as to payments, have not been substantially complied with, subclaimants have an action to foreclose a lien for the value of the labor done or materials furnished, indepen- dently of the amount due the contractor ; -* and an action to foreclose a lien upon the fund, or in personam against the owner or employer, to the extent of the amount due at the time of the service of the notice.^® § 643. Same. Actions by owner's laborers and material- men. The owner's laborers and material-men, being in privity with the owner or employer, have a right of action in personam against the person so contracting with them,^*^ and also a right of action to foreclose the lien on the prop- erty.^^ " See §S 334 et seq., ante. Action for dainn;ireN for failure to Rive bonil, under § 1203 of the Code of Civil Procedure (lield unconstitutional): See Gibbs v. Tally, 63 Pac. Rep. 168, reverwed 133 Cal. 373, 65 Pac. Rep. 570. =" "Obligations of Owner," §§523 et seq., ante; "Notice," §§547 et seq., ante; "Validity of Contract," §§ 315 et seq., ante. -" See §§ 547 et seq., ante. " First Nat. Bank v. Perris Irr. Dist., 107 Cal. 55, 65, 40 Pac. Rep. 45; Bates V. Santa Barbara County, 90 Cal. 543, 547, 27 Pac. Rep. 438; Board of Education v. Blake (Cal., Dec. 3, 1894), 38 Pac. Rep. 536. »* §§ 559 et seq., ante. » See §§ 547 et seq., ante. ^ Central L. & M. Co. v. Center, 107 Cal. 193, 197, 40 Pac. Rep. 334. See iverr's Cjo. Code Civ. Proc, § 1197. ^ See §§ 101, and §S 112 et seq., ante. §§ 644, 645 mechanics' liens. 590 § 644. Same. Actions by owner. The owner has an action against the original contractor under a valid original contract, and against his own laborers and material-men, ^- for breach of the contract; but he has no action on the contract under a void contract.^^ But in such an action against the material-man, when the contract w^s to be per- formed within a certain time, it is not prematurely com- menced when brought a few months after that time, if defendants w^ere still working thereunder with plaintiff's consent, there being no waiver of the claim for damages.^* Damages. Where the cause of action for a breach of the contract for materials was complete when the suit was com- menced, and plaintiff could not maintain another suit for the damages, it is proper to allow damages accruing after the commencement of the action ; and the loss of profits is a natural and necessary consequence of a failure to furnish and remodel an ice plant, as agreed.^" The owner has also an action on the contractor's bond, when such is given in connection with the original contract.^* § 645. Provisional remedies.^' Statutory provision. The statute ^^ provides : " Except as otherwise provided in this ■chapter, the provisions of part two [relating to civil actions] are applicable to, and constitute the rules of practice in, the proceedings mentioned in this chapter." The provisions of the Code of Civil Procedure relating to provisional reme- dies,^" including injunction, attachment, and receivers, are found in part two of the Code of Civil Procedure. 32 Bryson v. McCone, 121 Cal. 153, 53 Pac. Rep. 637, 639. Wyoming. Halleck v. Bresnahen, 3 "Wyo. 73, 2 Pac. Rep. 537. ^ See §§ 510 et seq., §§ 319 et seq., ante. 3-1 Bryson v. McCone, 121 Cal. 153, 53 Pac. Rep. 637, 639. Action by owner to bring in all parties, and deposit of money in court: See Stimson v. Dunham, 146 Cal. 281, 283. 79 Pac. Rep. 968. ^' Bryson v. McCone, 121 Cal. 153, 53 Pac. Rep. 637, 639. Repudiation of part of contract '«vitli arcliitect by o^'ner, optional •with architect to treat entire contract as brolvcn, or waive breach as to part not expressly repudiated and continue work: De Prosse v. Royal E. D. Co., 135 Cal. 408, 410, 67 Pac. Rep. 502. =>« Kurtz V. Porquer, 94 Cal. 91, 29 Pac. Rep. 413. See "Bond," §§ 281 et seq.. ante; "Sureties," §§ 605 et seq., ante. \%"yoming. Halleck v. Bresnahen, 3 Wyo. 73, 2 Pac. Rep. 537. " See " Waiver," §§ 627 et seq., ante. »» Kerr's Cyc. Code Civ. Proc, § 1198. 39 See Kerr's Cyc. Code Civ. Proc., §§ 478-574, and notes. I< 591 REMEDIES. § 646 § 646. Same. Attachment. It is thought that a mechan- ic's lien, when perfected, is a " security " upon real property, under subdivision one of section five hundred and thirty- seven of the Code of Civil Procedure, relating to attachments in the case of residents ; *" and as the affidavit requires a statement, in the case of residents, that the " payment of the same has not been secured by any mortgage or lien upon real . . . property, ... or if originally so secured, that such security has, without any act of plaintiff, or the person to whom the security was given, become valueless," it would seem that no attachment could issue, unless the security has become valueless, as stated; but that an attachment could issue in the case of a non-resident.'*^ Garnishment before suit. It has been shown that a proceeding in the nature of an attachment is allowed to subclaimants, before suit, to garnish funds due from the employee to the contractor.''- Garnishment after suit commenced. In an action by a sub- contractor's material-inan against the subcontractor, where the contractors, upon being served with a garnishment, deliver to the sheriff the money in their hands, which they owe the subcontractor, the material-man has no further claim upon them by virtue of the writ of attachment, and until he obtains a judgment against the subcontractor, he is not entitled to demand from the sheriff the moneys held under the garnishment.*^ *o See Hill V. Grigsby, 32 Cal. 55, 59. See also Kerr's Cyc. Code Civ. Proe., § 537, and note. Attachment for dnm:i;;eM cluiiiied for breach of contract by delay tn delivery of steel for building: See Hale Bros. v. Milliken, 142 Cal. 134. 75 Pac. Rep. 653. Oregon. Elirman v. Astoria & P. R. Co., 26 Oreg-. 377, 38 Pac. Rep. 306. ■" Under the act of 1856 an attachment was allowed in connection with the rig-ht to foreclose a mechanic's lien: Brennan v. Swasey, 16 Cal. 140, 142, 76 Am. Dec. 507. The lien, however, was not perfected by the filing- of a claim of lien at the time of the commencement of the attachment suit, although perfected later, on tlie same day. See " Rights of Material-men," § 101, ante. " S§ 547 et seq., ante. " Kruse v. Wilson. 3 Cal. App. 91, 84 Pac. Rep. 442. As to ^iiiiiiNhinent of public uioneys, see Simpson v. Gamache, 134 Oal. 216, 218, 66 Pac. Rep. 222. §§ 647, 648 mechanics' liexs. 592 § 647. Same. Materials exempt from attachment. Ma- terials furnished are exempt from attachment, execution, or other legal process, except in favor of the one furnishing the same, so long as, in good faith, they are about to be applied to the construction, alteration, or repair of the building, mining claim, or other improvement.** § 648. Same. Injunction. In an action to foreclose a lien, claimants are entitled to an injunction to restrain a judgment creditor of a lessee, whose judgment is younger than the lien, from removing a building from the lot, when the security is insufficient without such building; and an amended complaint, by leave of court, or a judge thereof, may be filed without prejudice to an injunction previously granted, and no new cause of action being introduced when thus filed, the injunction will not be dissolved by reason thereof.*^ Fund not deposited in court. Where the fund in the hands of the owner was not actually brought into court by the owner, the court will not restrain lien claimants from filing their claims of lien and enforcing such liens in regular course for the preservation of their rights.*^ ** Kerr's Cyc. Code Civ. Proc., § 1196. Washington. It is immaterial whether it was to be so used by the owner, or the one succeeding to his riglits; nor would the fact that litigation had been pending- a number of years affect that question, or necessarily require a finding that there was no intention to use the materials in the completion of the building: Potvin v. Wickersham, 15 Wash. 646, 4 7 Pac. Rep. 25. *' Barber v. Reynolds, 33 Cal. 497, 503. See "Forum," §§651 et seq., post. Injunction refused where building had already been removed, al- though not beyond center line of street: See Stowell v. W'addingham, 100 Cal. 7, 34 Pac. Rep. 436; and compare, generally, Miller v. Wad- dingham, 91 Cal. 377, 27 Pac. Rep. 750, 13 L. R. A. 680; Buckout v. Swift, 27 Cal. 433, 87 Am. Dec. 90; Hill v. Gwin, 51 Cal. 47. Impair- ment of mortgage security: Lavenson v. Standard Soap Co., 80 Cal. 245, 22 Pac. Rep. 184, 13 Am. St. Rep. 147; Miller v. Waddingham, supra; Perrine v. Marsden, 34 Cal. 14. Protection of mechanics' liens by enjoining sales under other pro- cess: See note 30 L. R. A. 128. Arizona. Injunction to restrain sale of property: See Bogan v. Roy (Ariz., May 28, 1906), 86 Pac. Rep. 13, 15. Washington. Enjoining levy of execution on materials: See Potvin V. Denny H. Co., 37 Wash. 323, 79 Pac. Rep.- 940. Injunction against sale of property on foreclosure of lien, ^vife not being made a party: See Peterson v. Dillon, 27 Wash. 78, 67 Pac. Rep. 397. « Stimson v. Dunham, 146 Cal. 281, 284, 79 Pac. Rep. 968. 593 COMMENCING ACTIONS — WHEN, WHERE, HOW. § 649 CHAPTER XXXIII. TIME, PLACE, AND MANNER OF COMMENCING ACTIONS TO FORECLOSE LIEN. § 649. Time of commencing actions to foreclose. § 650. Same. Action to foreclose lien upon the fund. § 651. Place of commencing action to foreclose. Generally. § 652. Same. Statutory provision. § 653. Same. Jurisdiction of superior court. § 654. Same. Amount less than jurisdictional limit. § 655. Same. Foreclosure of lien in Federal courts. § 656. Manner of commencing actions to foreclose. § 657. Same. Summons. § 658. Same. Lis pendens. § 649. Time of commencing actions to foreclose.' Suit to foreclose the lieu must be commenced within the time » First Nat. Bank v. Perris Irr. Dist., 107 Cal. 55, 62, 40 Pac. Rep. 45. See "Intervention," §§873 et seq., post; "Notice," §§ 547 et seq., ante. Time of commencing action: See Hughes Bros. v. Hoover, 3 Cal. App. 145, 84 Pac. Rep. 681 (credit given); but see Provident Mut. B. & L. Assoc, v. Shaffer, 2 Cal. App. 216, S3 Pac. Rep. 274. A.<4 to running; of statute of liniitationisi agrainst enforcement of me- ehauic'N lien, see 7 Am. & Eng-. Ann. Cas. 940, 947. I.iniltation.s, action against .seliool iioard by architect: See Todd v. Board of Education, 122 Cal. 106, 54 Pac. Rep. 527. Time of commencing; action. Thresliiug;-machine: See Blackburn v. Bell, 125 Cal. 171, 57 Pac. Rep. 775. Alaslia. Action to foreclose within six months after filing lien: Jorgenson Co. v. Sheldon, 2 Alas. 607, 610. Colorado. See Small v. Foley, 8 Colo. App. 435; Orman v. Crystal River R. Co., 5 Colo. App. 493, 39 Pac. Rep. 434. AVitliin six months after filing; statement: .Johnson v. Bennett. 6 Colo. App. 362, 40 Pac. Rep. 847. Limitations, four mouths: Burleigh B. Co. v. JSlerchant B. & B. Co., 13 Colo. App. 455, 59 Pac, Rep. S3, 86. Oklahoma. Time of commencing action: See Fulkerson v. Kilgore, 10 Okl. 655, 64 Pac. Rep. 5. Oreg;on. Limitation: 2 Hill's Ann. Laws, p. 1906 (miners' liens), ex- ception to 1 Hill's Ann. Laws, § 16: Burns v. White Swan M. Co., 35 Oreg. 305, 57 Pac. Rep. 637. Utah. Action must be commenced within one year from filing statement (under Sess. Laws 1890, § 21): Culmer v. Caine, 22 Utah 216, 61 Pac. Rep. 1008. AVashington. Time to commence action: See Peterson v. Dillon, 27 Wash. 78, 67 Pac. Rep. 397; Service v. McMahon, 42 Wash. 452, 85 Pac. Rep. 33. Mech. Liens — 38 §649 mechanics' liens. 594 limited by statute; otherwise the lien is lost.^ Limitations relied upon, however, must be specifically pleaded.^ The Code of Civil Procedure * provides : " No lien provided for - Green v. Jackson W. Co., 10 Cal. 374 (1855); Flandreau v. White, 18 Cal. 639, 641; Van W'inkle v. Stow, 23 Cal. 457, 458. Vnder Practice Act, providing tliat a suit was commenced upon the filing of a complaint and the issuing of a summons thereon, it was held that an action to foreclose tlie lien, not commenced witliin the statutory time after the filing of the claim of lien with the recorder, could not be maintained: Green v. Jackson 'W. Co., supra. And when there is a general provision, as in the General Limitations Act of 1851, that the filing of the complaint should be deemed the commence- ment of the action, a provision of the General Practice Act, that the complaint must be filed and summons issued in order to constitute the commencement of the action, was held to govern: Flandreau v. "White, supra. Cross-coinplainant, skh actor, must coiuiuence snit to foreclose ^ritbin the statutory time: See Hughes Bros. v. Hoover, 3 Cal. App. 145, 84 Pac. Rep. 681. Colorado. Cornell v. Conine-Eaton L. Co., 9 Colo. App. 225, 47 Pac. Rep. 912; Orman v. Crystal River R. Co., 5 Colo. App. 493, 39 Pac. Rep. 434 (1893). Oklalioma. The law exempts the owner of the property from suit for sixty days after the completion of the improvement; but it was held that if he defends the action, he waives the exemption: El Reno E. Co. V. Jennison, 5 Okl. 759, 50 Pac. Rep. 144. Oregon. No process was served thereon, nor did they make ser- vice thereof on the owners of the property within six months after the filing of their respective claims: Title G. & T. Co. v. W^renn, 35 Oreg. 62, 56 Pac. Rep. 271, 76 Am. St. Rep. 454. But see Coggan v. Reeves, 3 Oreg. 275, where, under an early statute, the failure to bring the action within the statutory time precluded a defendant claimant from enforcing his lien after the statuory period (one year), by way of answer. See Willamette Falls Co. v. Perrin, 1 Oreg. 182 (1851; one year). Washington. Gen. Stats., § 1670, provided that the action must be commenced within eight months after the claim had been filed, or if a credit was given, then within eight months from the expiration of such credit; and the following clause, "but no lien shall continue in force under this chapter for a longer time than two years from the time the work is completed by agreement or credit given," means that such credit cannot be extended for a longer time than two years and the lien maintained: Pacific Mfg. Co. v. Brown, 8 Wash. 347, 36 Pac. Rep. 273. 3 Towle v. Sweeney, 2 Cal. App. 29, S3 Pac. Rep. 74. Court must determine issue as to limitations: Towle v. Sweeney, 2 Cal. App. 29, 83 Pac. Rep. 74. See note 7 Am. & Eng. Ann. Cas. 947. Action against sureties on contractor's bond is governed by same limitation as action against contractor: Paige v. Carroll, 61 Cal. 211; Sonoma County v. Hall, 132 Cal. 589, 62 Pac. Rep. 257, 312, 65 Id. 12, 459; Towle v. Sweeney, 2 Cal. App. 29, 33, 83 Pac. Rep. 74. See Farmers' & M. Bank v. Kinsley, 2 Doug. (Mich.) 378, 403. * Kerr's Cyc. Code Civ. Proc, § 1190. I 595 COMMENCING ACTIONS — WHEN, WHERE, HOW. § 649 in this chapter binds any building, mining claim, improve- ment, or structure, for a longer period than ninety days after the same has been filed, unless proceedings be com- menced in a proper court within that time to enforce the same; or, if a credit be given, then ninety days after the expiration of such credit ; but no lien continues in force for a longer time than two years from the time the work is completed, by an agreement to give credit." The general rule under this provision is, that recorded claims bind the building only ninety days after the date of record, unless in the mean time suits are commenced to fore- close them.^ An amendment to the complaint, based upon the same cause of action, relates back to the date upon which the original complaint was filed, and hence is commenced within ninety days after the claim of lien, if the original complaint is so filed.** Debt must be payable. However, there can be no fore- closure of a mechanic's lien until the debt for which the lien is given as security has become payable. The complaint must show this fact, otherwise it will not support the judg- ment/ 5 White V. Soto, 82 Gal. 654, 658, 23 Pac. Rep. 210; Goss v. Strelitz, 54 Gal. 640, 643 (dictum). See Roylance v. San Luis Hotel Go., 74 Gal. 273, 278, 20 Pac. Rep. 573. " White V. Soto, 82 Cal. 654, 658, 23 Pac. Rep. 210. See " Amendment," §§ 865 et seq., post. See Jones v. Frost, 28 Cal. 245. 246; Barber v. Reynolds, 33 Gal. 497, 501; Easton v. O'Reilly, 63 Gal. 305, 308; McFadden v. Ellsworth M. & M. Co., 8 Nev. 57, 60; Louisville & N. R. Go. v. House, 104 Tenn. 110, 111. 6'! S. W. Rep. 836. ' Harmon v. Ashniead. 60 Cal. 439, 441. A right in tlie plaintilT and a correlative ^vrone in tiic defenilnut are essential to a right to maintain the action: Harmon v. Ashmead, supra. See Abbe v. Marr, 14 Gal. 210; Prisch v. Galer, 21 Cal. 71; Kin- sey V. Wallace, 36 Gal. 463; Ghoynski v. Cohen, 39 Cal. 501, 2 Am. Rep. 476; Roberts v. Treadwell. 50 Cal. 520. And where, as under the insolvency act of 1880, a debt secured by a meclianic's lien was not provable tliereunder, and a suit to foreclose the lien was not stayed by any of its provisions, it was held that the action to foreclose must be commenced within the ninety days, not- withstanding the insolvency proceedings: Bradford v. Dorsey, 63 Gal. 122. 123. See §§ 11, 56, 57, and 67 of the "Act to Establish a Uniform System of Bankruptcy throughout the United States," approved July 1, 1898 (1 Fed. Stats. Ann., pp. 685-688). § 650 mechanics' liens. 596 Credit given. Suit may be brought by an original con- tractor within ninety days after the expiration of a credit given. ^ § 650. Same. Action to foreclose lien upon the fund. Suits to foreclose the lien upon the " fund," or in personam against the owner, based on the notice to the owner under section eleven hundred and eighty-four,'' are not required, under the section quoted in the preceding section, to be commenced within ninety days after the filing of a claim of lien.^" Nevada. An assignee in bankruptcy took the realty of the bank- rupt charged with mechanics' liens theretofore arising for labor per- formed on the same, and thereafter to be enforced by the filing of an account, etc., as provided in the law: Sabin v. Connor, 21 Fed Cas., p. 124 (1871). Oklahoma. See Stats. 1893 (4531). "Wliere a person has a lien on property securing several different demands, or demands due at sep- arately stated intervals, it is not necessary that he should wait to bring his suit until all become due. He may bring an action to fore- close the lien upon any default. The court, of course, cannot render judgment for more than is due at the time the judgment is rendered. . . . But an instalment falling due before the trial, although not due when the suit was brought, may be included in the decree": El Reno E. L. & T. Co. V. Jennison, 5 Okl. 769, 50 Pac. Rep. 144. Oregon. The lien law then in force was not opposed to the terms and policy of the bankruptcy act of 1867: In re Coulter, 2 Sawy. 42, 6 Fed. Cas., p. 637, 6 Nat. Bank. Reg. 64, 1 Am. L. T. Rep. Bank. 257, 3 Chic. Leg. News 377, 4 Am. L. T. 131. Under 2 Hill's Ann. Laws, § 3675, it was held that when more than six months had elapsed after the expiration of credit on certain in- stalments, no recovery could be had on such instalments. The plain- tiff " was not required to wait until the last instalment became due before bringing its suit, but could have brought it at any time within six months after the filing of the lien, and obtained a decree, as pro- vided in § 421, which is made applicable to suits to foreclose mechan- ics' liens, by §3677": Capital L. Co. v. Ryan, 34 Oreg. 73, 54 Pac. Rep. 1093. AVasliington. Under the assignment statute, it was held that the lien could not be enforced against the property after it had passed into tlie hands of the assignee for the benefit of creditors, but all those having claims against the estate were required to present them in the insolvency proceeding: Quinby v. Slipper, 7 Wash. 475, 35 Pac. Rep. 116, 38 Am. St. Rep. 899. « Knowles v. Baldwin, 125 Cal. 224, 226, 57 Pac. Rep. 988. Time of oommeneing; action accruing after the expiration of credit: Hughes Bros. v. Hoover, 3 Cal. App. 145, 84 Pac. Rep. 681. » Kerr's Cyc. Code Civ. Proc, § 1184. " First Nat. Bank v. Perris Irr. Dist., 107 Cal. 55, 65, 40 Pac. Rep. 45. See " Notice," §§ 547 et se"q., ante. I 597 COMMENCING ACTIONS — WHEN, WHERE, HOW. §§651,652 § 651. Place of commencing action to foreclose." Gen- erally. Under the California constitution of 1879,'- the superior court has original jurisdiction of all cases in equity,^^ and, apparently, to enforce ail liens upon real property; and it is also provided that all suits for the enforcement of liens upon real estate must be commenced in the county in which the real estate, or an^^ part thereof, affected by such action or actions, is situated. The pro- visions as to forum, found in part two of the Code of Civil Procedure, are applicable to proceedings to enforce mechanics' liens. ^* § 652. Same. Statutory provision. Section three hun- dred and ninety-two ^^ provides : " Actions for the following causes must be tried in the county in which the subject of the action or some part thereof is situated, subject to the power of the court to change the place of trial as provided in this code : 1. For the recovery of real property, or of an estate or interest therein, or for the determination, in any form, of such right or interest. ... 3. For the foreclos- ure of all liens and mortgages on real property. Where the real property is situated partly in one county and partly in another the plaintiff may select either of the counties, and " Colorado. Amount of each separate claim determined the juris- diction of county court: Keystone M. Co. v. GaHagher, 5 Colo. 23 (1872). Superior court of Denver has jurisdiction over the contract and person of non-resident owner contracting for building- erected in Den- ver: Weiner v. Rumble, 11 Colo. 607, 19 Pac. Rep. 760. Jurisdiction of supreme court, wliere none of tlie claims amount to $2,500: Spangler v. Green, 21 Colo. 505, 42 Pac. Rep. 674, 52 Am. St. Rep. 259 (constitutional question involved). ^Vasllington. Under Ballinger's Ann. Codes and Stats., § 5910 (Laws 1893, §11, p. 36), "no person can begin an action to foreclose a lien upon any property while a prior action begun to foreclose another lien on the same property is pending" (Laws 1893, § 11, p. 36); but the language of this provision, "another lien," does not refer to an action to foreclose a mortgage then pending, but only to the "liens provided by this act": Nason v. Northwestern M. Co., 17 Wash. 142, 49 Pac. Rep. 235. 1- Article vi, § 5. '^ See Kerr's Cyc. Code Civ. Proc, § 76, and note. » Kerr's Cyc. Code Civ. Proc, § 1198. Utali. Action to be brought in county where mining claim situate: Fields v. Daisy G. M. Co., 26 Utah 373. 73 Pac. Rep. 521. " See Kerr's Cyc. Code Civ. Proc, g 392, and note. §§ 653, 654 mechanics' liens. 598 the county so selected is the proper county for the trial of such action ; provided, that in the case mentioned in this subdivision, if the plaintiff prays in his complaint for an injunction pending the action, or applies pending the action for an injunction, the proper county for tlie trial shall be the county in which the defendant resides or a majority of the defendants reside at the commencement of the action." ^^ § 653. Same. Jurisdiction of superior court. The su- perior court has jurisdiction in equity, not only of a suit to foreclose a mechanic's lien on the real property of the owner, even where the amount claimed is less than three hundred dollars, but likewise of an action, under section eleven hundred and eighty-four, to subject funds owing to the contractor by such owner, which would necessitate an accounting and an apportionment among the several claim- ants of the fund, after the liability of the contractor had been fixed.^^ § 654. Same. Amount less than jurisdictional limit. In California and other code states, legal and equitable remedies may be pursued and granted by the same tribunal, and in a single action, and the fact that the equitable relief of fore- closure of the lien is not obtained in the superior court, by failure to establish the lien, furnishes no reason, in itself, for the refusal of the legal relief of judgment for the amount claimed, even if it be less than the jurisdictional amount of " Under the act of 1850, county courts had no jurisdiction to en- force a mechanic's lien, where the amount in controversy exceeded two hundred dollars: Brock v. Bruce, 5 Cal. 279; but, under the act of 1861, county courts had jurisdiction to enforce mechanics' liens: McNeil v. Borland, 23 Cal. 144; Van V^inkle v. Stow, 23 Cal. 457. In Davis v. Livingston, 29 Cal. 283, an action was commenced in the justice's court for $124, and the case was transferred to the district court for trial (under act of 1862, Stats. 1862, p. 385). " Weldon v. Superior Court, 138 Cal. 427, 431, 71 Pac. Rep. 502. See' next note, post. Place of foreolosins Hen by trustee in bankruptcy, in state court: See In re Grissler, 136 Fed. Rep. 754, 69 C. C. A. 406. WashinKton. Jurisdiction of court: See Powell v. Nolan, 27 Wash. 818, 67 Pac. Rep. 712, 718. • 699 COMMENCING ACTIONS — WHEN, WHERE, HOW. §§655,656 three hundred dollars, in the absence of an attempt to fraud- ulently confer jurisdiction on the court/^ § 655. Same. Foreclosure of lien in Federal courts. "Where the action to foreclose a mechanic's lien, created under the, provisions of a state statute, is brought in the circuit court of the United States, the bill in equity must show the jurisdictional facts of citizenship, in order that the court may entertain the bill.^^ § 656. Manner of commencing actions to foreclose. An action to foreclose a mechanic's lien upon real property is commenced like civil actions, by the filing of a complaint.-" 's Becker v. Superior Court (Cal. Sup., May 21, 1907), 90 Pac. Rep. 689, overruling; MHler v. Carlisle, 127 Cal. 327, 59 Pac. Rep. 785; and see Williams v. Rowell, 145 Cal. 259, 261, 78 Pac. Rep. 725; Weldon v. Superior Court, 138 Oal. 427, 429, 71 Pac. Rep. 502. CcHts, in action to foreclose lien on tlire8hln$(-ninctiine, for less tlian jurisdictional amount: See Clark v. Brown, 141 Cal. 93, 95, 74 Pac. Rep. 548. Action to cancel contract, amount less tlian tliree hundred dollars, Jurisdiction of superior court: See Sullivan v. California R. Co., 142 Cal. 201, 206, 75 Pac. Rep. 767. Colorado. Attorneys' fees not a part of debt, damage, or claim, lim- iting jurisdiction of county court: See Eagle G. M. Co. v. Bryarly, 28 Colo. 262, 65 Pac. Rep. 52, 54. '' Idaho. Jurisdiction of Federal courts: See Holt v. Bergevin (Idaho), 60 Fed. Rep. 1. Nevada. Hampton v. Truckee C. Co., 9 Sawy. 381, 19 Fed. Rep. 1, 1 West Coast Rep. 17. -" Kerr's Cyc. Code Civ. Proc, §§405, 1198. Under the act of 1801 (Stats. 1861, p. 495), the proceeding to fore- close a mechanic's lien was changed from an action to a special pro- ceeding, and required the filing of a petition; and the clerk was recjuired to issue a notice, which had to be published, but the act re- quired no issuance of summons; and, under this, it was held that the suit was sufficiently commenced if the petition was filed and the notice issued by the clerk: Van Winkle v. Stow, 23 Cal. 457, 459. Before the Practice Act, as it stood in 1857, a suit was not com- menced until the summons was issued: Green v. Jackson W. Co., 10 Cal. 374. See ■' Time of Commencing," §§ 649 et seq., ante. Alaska. Procedure as on foreclosure of mortgage: Jorgenson v. Sheldon, 2 Alas. 607, 610. Hawaii. Filinfr declaration is commencement of action: Hackfeld V. Hilo R. Co., 14 Hawn. 448, 457. Tlirce months' limitation: Pacific H. Co. v. Lincoln, 12 Hawn. 35S. Oregon. Action! when commenced: Burns v. White Swan M. Co., 35 Oreg. 305, 57 Pac. Rep. 637. Utali. Publishing notice, inviting presentation of claims: See Sand- berg V. Victor G. & S. M. Co., 24 Utah 1, 66 Pac. Rep. 360. § 657 mechanics' liens. 600 § 657. Same. Summons.-^ Where the affidavit of service of sumnious on a corporation states that affiant personally ^> Before the amendment of 1897 to § 407, Code Civ. Proc, omitting the requirement as to " the statement of the nature of the action in general terms," it was held that it was not necessary to state whether the right to the money sought to be recovered accrued from work and labor, or from goods sold and delivered, or to state the kind of lien souglit to be foreclosed, or on what property such lien attached. The object of the requirement of the statute as to what the summons shall contain is carried out by a general statement of what is specialized in the complaint to which the summons points, expressly, or by implica- tion of law; and it was held immaterial whether a copy of the com- plaint was served with the summons or not. (Before amendment of 1893 to § 410, reqiiiring the service of a copy of the complaint with the summons): Bewick v. Muir, 83 Cal. 368, 369, 23 Pac. Rep. 390. Appearance of infants: See § 668, post. Service of summons: See Berentz v. Belmont O. Co., 148 Cal. 577, 580, 84 Pac. Hep. 47, 113 Am. St. Rep. 308. Colorado. Under act of 1872, notice to other claimants to present claim; summons returned as in chancery proceedings: Decker v. Myles, 4 Colo. 558 (1872); Keystone M. Co. v. Gallagher, 5 Colo. 23 (1872; service by publication). In Davis v. Mouat L. Co., 2 Colo. App. 381, 31 Pac. Rep. 187 (1889), it was held that publication of summons would not support a judgment against a non-resident contractor, since the recovery of the debt from the contractor is the principal object of the suit, and the right to enforce the lien on the property against the owner is collateral and incident. See also Loma.x v. Besley, 1 Colo. App. 21, 27 Pac. Rep. 167. Publication of summons: See Eagle G. M. Co. v. Bryarly, 28 Colo. 262, 65 Pac. Rep. 52, 55. Issuance of alias summons in consolidated action, under 3 Mills's Ann. Codes and Stats., 1st ed., § 2867, not necessary: Eagle G. M. Co. v. Bryarly, 28 Colo. 262, 65 Pac. Rep. 52, 55. Montana. Service of summons: See Missoula M. Co. v. O'Donnell, 24 Mont. 65, 60 Pac. Rep. 991. IVevada. Service of summons: See Lonkey v. Keyes S. M. Co., 21 Nev. 312, 31 Pac. Rep. 57, 17 L. R. A. 351. Publication of notice to other lien-holders: Id. Xe«- Mexico. Service of summons by publication against non- resident, valid, as far as proceeding in rem is concerned: Gunst v. Las Vegas M. B. Assoc, 11 N. M. 251, 67 Pac. Rep. 743. Orei^on. Coggan v. Reeves, 3 Oreg. 275 (decided in 1871). See, as to contents of summons, Willamette Falls Co. v. Riley, 1 Oreg. 183. Time of service on foreiira corporations: See Burns v. White Swan M. Co., 35 Oreg. 305, 57 Pac. Rep. 637. Sufficiency of publication of summons: Goodale v. Coffee, 24 Oreg. 346, 33 Pac. Rep. 990 (sufficiency of affidavit for publication). Utah. Service of summons within one year of filing complaint, under Comp. Laws, §§ 3203, 3204, and service of summons on cross- complaint: See Culmer v. Caine, 22 Utah 216, 61 Pac. Rep. 1008. Washingrton. Failure to serve husband, community property, time to commence action on lien having expired: See Powell v. Nolan, 27 Wash. 318, 67 Pac. Rep. 712, 721. Service of summons on one spouse; community property: See Powell V. Nolan, 27 Wash. 318, 67 Pac. Rep. 712, 716. Service of summons on cross-complaint unnecessary: See Powell V. Nolan, 27 Wash. 318, 67 Pac. Rep. 712, 717. 601 COMMENCING ACTIONS — WHEN, WHERE, HOW. § 658 served the same upon E., " the managing agent " thereof, " by delivering to said E., the said managing agent of said defendant (corporation), personally, a copy of said summons attached to a true copy of the complaint, and that he knows the person so served to be the person acting as managing agent for said defendant (corporation)," it shows that the corporation was served, and is prima facie proof that E. was such managing agent, and the statute authorizes the service to be made upon him for the corporation.-- § 658. Same. Lis pendens.-^ Contrary to the general rule, it has been held that a purchaser or encumbrancer of property upon which a claim of mechanic's lien is filed, and suit is brought to foreclose the same, is chargeable with notice thereof, by virtue of the mechanic's-lien statute, with- out the necessity of filing a lis pendens.^* =2 Keener v. Eagle Lake L. & I. Co., 110 Cal. 627, 629, 43 Pac. Rep. 14. 25 Horn V. Jones, 28 Cal. 194, 203; Reeve v. Kennedy, 43 Cal. 643 (tax sale); and see Kerr's Cjc. Code Civ. Proc., §§ 409, 1186, 1196, and notes. See note 56 Am. St. Rep. 853-878, especially p. 856. As to the necessity of filing a lis pendens, see " Priorities," §§ 486 et seq., ante. " Colorado. Empire L. & C. Co. v. Engley, 18 Colo. 388, 33 Pac. Rep. 153. See " Priorities," §§ 486 et seq.. ante. Nevada. Kee Lonkey v. Keyes S. M. Co., 21 Nev. 312, 31 Pac. Rep. 57, 17 L. R. A. 351. Wasliington. See Frank v. Jenkins, 11 Wash. 611, 616, 40 Pac. Rep. 220. See § 669, post. § 659 mechanics' liens. 602 CHAPTER XXXIV. PARTIES. § 659. Parties plaintiff. Statutory provision. § 660. Same. Object of provision. § 661. Same. Raising objection. § 662. Parties defendant. Generally. § 663. Same. Owner. § 664. Same. Employers. Copartnerships. § 665. Same. Contractor. § 666. Same. Subcontractor. § 667. Same. Lien claimants. § 668. Same. Holders of prior interests and liens. § 669. Same. Interests pendente lite. § 659. Parties plaintiff.^ Statutory provision. Section eleven hundred and ninety-five - provides : " Any number of persons claiming liens may join in the same action." ^ In construing this provision, the supreme court of California said : " Section eleven hundred and ninety-five of the Code of Civil Procedure, it will be observed, does not say whether the liens must be all upon the same property, or simply against the same person. "We incline to the former con- struction." * Several different liens, by different claimants, on the same property may be united in the same complaint.® Where the claims of lien-holders are several, separate, and distinct, without any community of interest in the claims themselves, and although there is no contract in writing, they ' Partner as assignee of partnership. Certificate of partnersliip: See Gray v. Wells, US Cal. 11. 17, 50 Pac. Rep. 23. See " Assignees," §§ 588 et seq., ante; " Joinder of Causes of Action," II 723 et seq., post. 2 Kerr's Cye. Code Civ. Proc., § 1195. 3 Colorado. Branham v. Nye, 9 Colo. App. 19, 47 Pac. Rep. 402. * Malone v. Big- Flat G. M. Co., 76 Cal. 578. 582, 18 Pac. Rep. 772. ■"• Bootli V. Pendola, 88 Cal. 36. 42; Malone v. Big- Flat G. M. Co., supra. See Parker v. Savage P. M. Co., 61 Cal. 348; Curnow v. Happy- Valley B. G. Co., 68 Cal. 262. 26b, 9 Pac. Rep. 149. See "Joinder of Causes of Action," |§ 723 et seq., post. 603 PARTIES. §§ 660, 661 may, under such a provision, join as plaintiffs to foreclose their liens." Where a number of adjoining placer mining claims, owned by one company, are used and operated as one mine, they constitute one piece for the purposes of the mechanic's-lien law, and the claims upon different parts of the property may be joined in one action, but the counts should be separately stated.'^ § 660. Same. Object of provision. The purpose of the provision quoted in the last preceding section, allowing per- sons having liens upon the same property to join as plaintiffs, is to save expense, but more particularly to enable the court to determine the relative rights of lien-holders in the fund.® § 661. Same. Raising objection. A plea of non-joinder of necessary parties defendant in the action, if otherwise well taken, must prevail, irrespective of whether the plain- tiff knew of the existence of the matter pleaded or not.** Estoppel. Where an action is brought to foreclose a lien by one partner, whose copartner has given the owner a fraudulent release, the owner is prevented by estoppel from alleging that such copartner is a necessary party to the action.^" « Barber v. Reynolds, 33 Cal. 497, 502; Barber v. Reynolds, 44 Cal. 519, 532 (1862). See Easton v. O'Reilly, 63 Cal. 305; Gorton v. Ferdl- nando, 64 Cal. 11, 27 Pac. Rep. 941. See "Joinder of Causes of Action," §§723 et seq., post. ' Malone v. Big Flat G. M. Co., 76 Cal. 578, 582, 18 Pac. Rep. 772. See Hamilton v. Delhi M. Co., 118 Cal. 148, 151, 50 Pac. Rep. 378. " rtali. Purpose of law providing for combining of aU parties upon the same property in one action is to save expense, and to enable tlie court to more definitely determine the respective rif^lits of the several lien claimants as to distributing the fund accordingly; and substantial compliance with provisions of Rev. Stats. 1898, § 1391, is all that is required: Elwell v. Morrow, 28 Utah 278, 78 Pac. Rep. 605, 607. » McDonald v. Backus, 45 Cal. 262, 264 (1868; partners). AVaNhinKton. But, if not raised below, cannot be raised on appeal: Vincent v. Snoqualmic :Mill Co., 7 Wash. 5GG, 35 Pac. Rep. 390. Objection as tu ilofeet of parties, uot to he rniseil ou iiitrodiietiou of evidence: See Greene v. Finnell, 22 ^\■asll. 186, 60 Pac. Rep. 14 1. "' South Fork C. Co. v. Gordon, 73 U. S. (6 Wall.) 561, bk. IS L. ed. 894. § 662 mechanics' liens. 604 § 662. Parties defendant.^^ Generally. The general rules with reference to the joinder of parties defendant apply in actions to foreclose mechanics' liens/^ except where changed by statute. No attempt will be made to discuss the subject in detail, but reference will be more particularly " Surety, absent from jurisdiction, not necessary party; action on bond: Tally v. Ganahl (Cal. Sup., June 19, 1907), 90 Pac. Rep. 1049. See Tally v. Parsons, 131 Cal. 516, 63 Pac. Rep. 833. Alaska. Proper parties: Jorg-enson Co. v. Sheldon, 2 Alas. 607, 610. Colorado. All persons interested should be made parties (Gen. Laws, §1668): San Juan etc. Co. v. Finch, 6 Colo. 214; Snodgrass v. Holland, 6 Colo. 596; but only lien-holders and owner need be made parties: Branham v. Nye, 9 Colo. App. 19, 47 Pac. Rep. 402. See San Juan Hardware Co. v. Carrothers, 7 Colo. App. 413, 43 Pac. Rep. 1053, explaining Johnston v. Bennett, 6 Colo. App. 362, 40 Pac. Rep. 847. But the g-rantee under a deed of trust given as security is not an " owner," within the meaning of Gen. Stats., § 2152, requiring him to be made a party: Cornell v. Conine-Eaton L. Co., 9 Colo. App. 225, 47 Pac. Rep. 912. Unnecessary parties: See Branham v. Nye, 9 Colo. App. 19, 47 Pac. Rep. 402; Fleming v. Prudential I. Co., 19 Colo. App. 126, 73 Pac. Rep. 752. Hawaii. Parties defendant: See Allen v. Reist, 16 Hawn. 23, 24. Montana. Those parties liable, necessary parties; otherwise judg- ment invalid: Missoula M. Co. v. O'Donnell, 24 Mont. 65, 60 Pac. Rep. 594, 991; Gilliam v. Black, 16 Mont. 217, 40 Pac. Rep. 303; Wagner v. St. Peter's Hospital, 32 Mont. 206, 79 Pac. Rep. 1054, 1055. Aevada. Same rules as on foreclosure of mortgage applicable: Rosina v. Trowbridge, 20 Nev. 105, 17 Pac. Rep. 751. New Mexico. See Post v. Miles, 7 N. M. 317, 34 Pac. Rep. 586. Minors as proper and necessary parties: Id. Oklahoma. Contractor's sureties not necessary or proper parties to foreclosure: Ferguson v. Steplienson-Brown L. Co., 14 Okl. 148, 77 Pac, Rep. 184, 186. Oregon. Those personallj* liable, necessary parties: Lewis v. Bee- man, 46 Oreg. 311, 80 Pac. Rep. 417. Plaintiff suing on behalf of claimants in action on bond: See United States v. McCann, 40 Oreg. 13, 66 Pac. Rep. 274. AVashington. Assignees of claimant as party: See Fairhaven L. Co. V. Jordan, 5 Wash. 729, 735, 32 Pac. Rep. 729. The person to whom the material was furnished and his wife, and the owner of the building and his wife, and tlie mortgagee, were proper parties defendant: Rasmusson v. Liming (Wash., Aug. 3, 1908), 96 Pac. Rep. 1044. But wliere, in sucli an action between such parties, the plaintiff demanded a personal judgment against the contractor, whicli should be a community of obligation of himself and wife, and also asked that a lien on the property be decreed therefor and foreclosed, held that an account for goods sold and delivered against the contractor and his wife was not improperly joined with the cause of action against the owner and his wife and the mortgagee to establish a lien: Rasmusson v. Liming (Wash., Aug. 3, 1908), 96 Pac. Rep. 1044. Suing surety alone: See Pacific P. Co. v. United States F. & G. Co., 33 Wash. 47, 73 Pac. Rep. 772. "= See Kerr's Cyc. Code Civ. Proc, §§367 et seq., and notes. 605 PARTIES. § G63 directed to the persons whose rights are usually affected by the statute under discussion. § 663. Same. Owner. In an action by a subclaimant to foreclose a lien upon the property, it is proper to join the owner and the original contractor as parties defendant. ^^ And it seems that the owner at the time of bringing the suit to foreclose the lien must be a party defendant ; ^^ but a mere agent is not a proper party.^^ " Giant Powder Co. v. San Diego F. Co., 78 Cal. 193, 198, 20 Pac. Rep. 419. Colorailo. Davis v. Mouat L. Co., 2 Colo. App. 381, 31 Pac. Rep. 187. Oregon. Osborn v. Logus, 28 Oreg. 302, 38 Pac. Rep. 190, 42 Pac. Rep. 997. " Corbett v. Chambers, 109 Cal. 178, 184, 41 Pac. Rep. 873 (dictum). Receiver as party defendant: Pacific R. M. Co. v. Bear Valley Irr. Co., 120 Cal. 94, 95. 52 Pac. Rep. 136, 65 Am. St. Rep. 158. Colorado. Decker v. Myles, 4 Colo. 558 (1872); Snodgrass v. Hol- land, 6 Colo. 596; German Nat. Bank v. Elwood, 16 Colo. 244, 27 Pac. Rep. 705. Hawaii. Owner is necessary party: Hopper v. Lincoln, 12 Hawn. 352, 353. See Allen v. Lincoln, 12 Hawn. 356. Xevada. Owner of legal title: Rosina v. Trowbridge, 20 Nev. 105, 17 Pac. Rep. 751. Oregon. Osborn v. Logus, 28 Oreg. 302, 310, 38 Pac. Rep. 190, 42 Pac. Rep. 997 (owner an Indispensable party — dictum). AVasliington. So the owners of a leasehold interest at the time of commencing the action should be made parties, but their assignors need not be, w^here no personal judgment is sought against them: Harrington v. Miller, 4 Wash. SOS, Sll, 31 Pac. Rep. 325. In suit to foreolo.se lien upon ooniniunity property, tlie wife is a necessary party: Littell Mfg. Co. v. Miller, 3 Wash. 480, 28 Pac. Rep. 1035, s. c. 8 Wash. 566, 36 Pac. Rep. 492, which states that the former decision held " that the suit for foreclosure of the lien could not be maintained against him (the husband), for the reason that he was not the sole owner of the property." See Turner v. Bellingham Bay L. & Mfg. Co., 9 W'ash. 484, 37 Pac. Rep. 674; Sagmeister v. Foss, 4 Wash. 320, 30 Pac. Rep. 80, 744; Collins v. Snoke, 9 Wash. 571, 38 Pac. Rep. 161; Parsons v. Pearson, 9 W'ash. 48, 36 Pac. Rep. 974. But see Douthitt V. MacCulsky, 11 Wash. 601, 606. 40 Pac. Rep. 186. AVIves of partners not necessary parties to an action to foreclose a lien upon the partnership real estate, sucli property being, in equity, a fund for the payment ot the indebtedness of the partnership, tliey having no interest in the property which could be asserted in a court of equity against the rights of the creditors of the partnership, within the rule of Littell Mfg. Co. v. Miller, supra: Harrington v. Johnson 10 Wash. 542, 39 Pac. Rep. 141. Both spouses necessary parties, community property: Northwest B. Co. V. Tacoma S. Co.. 36 Wash. :133. 78 Pac. Rep. 996; Peterson v. Dil- lon, 27 Wash. 78, 67 Pac. Rep. 397; Powell v. Nolan, 27 Wash. 318, 67 Pac. Rep. 712. »■"• Hooper v. Flood. 54 Cal. 218. 220. See " Demurrer," gS 728 et seq., post. §§ 664, 665 MECHAXics' liens. 606 Grantee of mortgager assuming the mortgage debt is a proper and necessary party to a foreclosure suit, where he agrees to pay for the work, and a personal judgment may be entered against the grantee for a deficiency.^® § 664. Same. Employers. Copartnerships. All the members of a firm of employers should be made parties de- fendant, even where the name of the particular individual contracting with the claimant is alone set forth in the claim of lien which is filed in the recorder's office.^" Death of copartner. But where two tenants, as copart- ners, erect a building upon leased land, and one of the part- ners dies, and no judgment is sought against the estate of the deceased partner, the executor of the deceased is not a proper party, as the surviving partner only is authorized to defend for the partnership interest, especially where the deceased partner's interest has already been assigned before his death and the assignee is also a party to the action.^® § 665. Same. Contractor. The contractor is a proper party in an 'action to foreclose a lien on the property of the owner; ^'' but there seems to be some confusion in the " San Francisco P. Co. v. Fairfield, 134 Cal. 220, 222, 226, 66 Pac. Rep. 255. 1' McDonald v. Backus, 45 Cal. 262. See March v. McKoy, 56 Cal. 85, 87, where it was held that in an action to foreclose a mechanic's lien upon personal property the persons having a joint ownersliip are necessary parties. Corporation .sued as copartner.ship: See Rousseau v. Hall, 55 Cal. 164. Xevada. See Rosina v. Trowbridge, 20 Nev. 105, 17 Pac. Rep. 751. >* West Coast L. Co. v. Apfleld, 86 Cal. 335, 341, 24 Pac. Rep. 993. " Hooper V. Flood, 54 Cal. 218, 220; Holmes v. Richet, 56 Cal. 307, 311, 38 Am. Rep. 54; Yancy v. Morton, 94 Cal. 558, 560, 29 Pac. Rep. 1111; W^ood V. Oakland & B. R. T. Co., 107 Cal. 500, 502, 40 Pac. Rep. 806. See Green v. Clifford, 94 Cal. 49, 52, 29 Pac. Rep. 331; McMenomy V. White, 115 Cal. 339, 343, 47 Pac. Rep. 109; Davies-Henderson L. Co. v. Gottschalk, 81 Cal. 641, 643, 22 Pac. Rep. 860; Southern Cal. L. Co. v. Schmitt, 74 Cal. 625, 626, 16 Pac. Rep. 516. In an action to foreclose a mechanic's lien, by a subcontractor, where the original contractors are partners, it is not necessary to make more than one of them a defendant; but if the owners of the property wish the other members of the firm to be made defendants, the court may, in its discretion, have them brought in, if they are within its jurisdiction: Barnes v. Colorado Springs & C. C. D. R. Co. (Colo.), 94 Pac. Rep. 570. 607 PARTIES. § 665 authorities as to whether he is a n"ecessary part}'.-" However, in any event, the contractor is not a necessary party to *> It has been held, in this connection, that the contractor is a necessary party to the full and complete determination of the matters in controversy; tlie court saying, '* We have no doubt from the provis- ions of §§ 1193, 1194, and 1195, that it was the intent of the law-makers that, in an action to enforce a lien under this statute, all the persona claiming- liens under the statute, including- the contractor and owner, should be made parties, so that there might be a complete determina- tion of all matters in controversy between the material-men and other lien-holders, the owner, and the contractor; and in this point of view the contractor is a necessary party; and if he was not made a party, the court should order him to be made a defendant, that there might be a full and complete determination of the matters in controversy": Giant P. Co. v. San Diego F. Co., 78 Cal. 193, 200, 20 Pac. Rep. 419. See GrilBth v. Happerberger, 86 Cal. 605, 612, 614, 25 Pac. Rep. 137, 487. In Green v. Clifford, 94 Cal. 49, 52, 29 Pac. Rep. 331, it was said: "We do not know of any law which makes the contractor a necessary party, so far, at least, as the rights of the owner of the building are concerned; and the contrary was substantially decreed in Russ L. & M. Co. v. Garrettson, 87 Cal. 589, 25 Pac. Rep. 747." In Yjincy v. Morton, 94 Cal. 558, 560, 29 Pac. Rep. 1111, it was said: " Appellant also complains that the contractors were not joined as co- defendants. While they were proper parties to the action, it does not appear that they were necessary parties, and if the defendant desired to have them joined as co-defendants, he should have made application to the court for such an order. In Russ ijumber Co. v. Garrettson. 87 Cal. 596, 25 Pac. Rep. 747, this court declared: 'Lastly, it is said that there i.s no judgment against the parties personally liable, and that such judgment is necessary to support the lien. We know of no law or decision supporting this position.' See also Green v. Clifford, 94 Cal. 49, 29 Pac. Rep. 331." In the above eaaeti, however, the earlier case of Giant P. Co. v. San Diego F. Co., 78 Cal. 193. 20 Pac. Rep. 419. was not noticed; but in the subsequent case of Wood v. Oakland & B. R. T. Co., 107 Cal. 500, 502, 40 Pac. Rep. 806, in discussing this question, the court said: "The com- plaints proceed upon the theory and allege that the contract between the defendant corporation, the owner of the property, and the original contractor was void because neither the contract nor a svitticient memorandum thereof was filed with the county recorder, and the argu- ment of appellant is, that, taking this allegation to be true, there is, in legal contemplation, neither a contract nor an original contractor, and the laborer or material-man has the right, under the statute, to sue the owner of the building directly to enforce his lien; that, in such instance, the contractor is not a necessary party to the determination of the matters involved in the action, and that making him a defend- ant is therefore improper. It is true tliat, under the facts alleged, Ecker (the contractor) was not a necessary party to the action, but it does not follow that he was not a proper party, and, if he was either the one or the other, the demurrer on that ground was correctly over- ruled. While plaintiffs could maintain their action against the owner alone to enforce their liens, the contractor with whom they dealt was alone personally lialile to them for any deficiency that might arise; and. if a personal judgment against the contractor was for any reason desired, it was proper to make him a defendant. Tlie practice has in fact been commended as tending to avoid a multiplicity of actions: Giant P. Co. v. San Diego F. Co., 78 Cal. 193, 20 Pac. Rep. 419." §§ 666, 667 mechanics' liens. 608 actions brought by the owner's claimants to foreclose liens, where the subject-matter thereof was furnished or done after the contractor abandoned the contract.^^ § 666. Same. Subcontractor. The subcontractor is a proper party in an action to foreclose a lien by a subclaimant with whom the subcontractor contracted, even where the statutory original contract is void.^^ § 667. Same. Lien claimants. All persons claiming liens are proper parties, and should be made parties defendant; for it is manifest that if each material-man or person per- forming labor on the building had to bring separate actions Colorailo. Contractor should be made party: Union Pac. R. Co. v. Davidson, 21 Colo. 93, 39 Pac. Rep. 1095. Contractor is a necessary party: Union Pac. R. Co. v. Davidson, 21 Colo. 93, 39 Pac. Rep. 1095; Charles v. Hallack L. Co., 22 Colo. 283, 43 Pac. Rep. 548; Estey v. Hal- lack L. Co., 4 Colo. App. 165, 34 Pac. Rep. 1113; Davis v. Mouat L. Co., 2 Colo. App. 381, 31 Pac. Rep. 187; Sayre-Newton L. Co. v. Park, 4 Colo. App. 482, 36 Pac. Rep. 445 (1889). See Hume v. Robinson, 23 Colo. 359, 362. 47 Pac. Rep. 271. aiontana. Contractor necessary party: Wagner v. St. Peter's Ho's- pital, 32 Mont. 206, 79 Pac. Rep. 1054, 1055. But where the contractor is not made a party, and no demurrer is filed therefor, the point cannot be raised for the first time on appeal: Duig-nan v. Montana Club, 16 Mont. 189, 40 Pac. Rep. 294. The person with whom claimant contracted is a necessary party: Gilliam v. Black, 16 Mont. 217, 40 Pac. Rep. 303. Oregon. Contractor is not an indispensable party, but is a neces- sary or proper party: Osborn v. Logus, 28 Oreg. 302, 38 Pac. Rep. 190, 42 Pac. Rep. 997, where the subject is fully discussed under the Ore- gon statute, and a distinction between " indispensable " and " neces- sary " parties dwelt upon. But in Hand Mfg. Co. v. Marks, 36 Oreg. 523, 52 Pac. Rep. 512, and Cooper Mfg. Co. v. Delahunt, 36 Oreg. 402, 51 Pac. Rep. 649, it was held that "he is not a necessary party to a suit to foreclose a mechanic's lien, unless a personal decree is sought against hiin by the owner." Washington. See dissenting opinion, Tacoma L. & Mfg. Co. v. Wolff, 7 Wash. 478, 35 Pac. Rep. 115, 755 (the contractor may be a proper party, but not a necessary party, to the foreclosure suit). But see Maxon v. School Dist., 5 W'ash. 142, 31 Pac. Rep. 462, 32 Pac. Rep. 110 (dissenting opinion). -' Green v. Clifford, 94 Cal. 49, 53, 29 Pac. Rep. 331. Contractor made a party to foreclo.se lien: San Francisco P. Co. v. Fairfield, 134 Cal. 220, 226, 66 Pac. Rep. 255. Oregon. Original contractor not necessary party to foreclosure, unless personal judgment is sought against him by owner: Cooper M. Co. v. Delaliunt, 36 Oreg. 402, 51 Pac. Rep. 649. =2 Davies-Henderson L... Co. v. Gottschalk, 81 Cal. 641, 647, 22 Pac. Rep. 860. I 609 PARTIES. § 668 for the recovery of his money, the expense of litigation would be greatly increased, and absorb the fiind.^^ § 668. Same. Holders of prior interests and liens. As in the case of a suit to foreclose a mortgage, all persons interested in the premises prior to the commencement of the suit to enforce a mechanic's lien, whether purchasers,-* heirs, devisees, remainderinen, reversioners, or encumbrancers, such as mortgagees,-^ must be made parties, otherwise their rights will not be affected.^® And all persons acquiring "^ Giant P. Co. v. San Diego F. Co., 78 Cal. 193, 198, 200, 20 Pac. Rep. 419. Colorado. Union Pac. R. Co. v. Davidson, 21 Colo. 93, 39 Pac. Rep. 1095. Other lien claimants necessary parties: Union Pac. R. Co. v. David- son, 21 Colo. 93, 39 Pac. Rep. 1095; San Juan H. Co. v. CarroUiers, 7 Colo. App. 413, 43 Pac. Rep. 1053; Branliam v. Nye, 9 Colo. App. 19, 47 Pac. Rep. 402; Fleming v. Prudential 'I. Co., 19 Colo. App. 126. 73 Pac. Rep. 752. 3Iontana. See Mason v. Germaine, 1 Mont. 263, 268 (1865). Nevada. Donkey v. Wells, 16 Nev. 271, 277. See Elliott v. Ivers, 6 Nev. 287, 290. Oregon. "All other lien-holders whose claims have been filed shall be made parties": Title G. & T. Co. v. W^enn, 35 Oreg. 62, 56 Pac. Rep. 271, 76 Am. St. Rep. 454. Lien-holders as parties: Goodale v. Coffee, 24 Oreg. 346, 356, 33 Pac. Rep. 990. Washington. Setting out, in cross-complaint, facts showing claim- ant to be necessary party: See Powell v. Nolan, 27 Wash. 318, 67 Pac. Rep. 712. 717. -'' See Montrose v. Conner, 8 Cal. 344, 347 (1855). Colorado. Hart v. Mullen, 4 Colo. 512 (1872). Montana. Purchaser, on foreclosure of mortgage, party: See McEwen v. Montana P. & P. Co. (Mont., June 3, 1907), 90 Pac. Rep. 359. 361. -■5 Walker v. Hauss-Hijo, 1 Cal. 183, 186 (1850). See "Priority," §§ 486 et seq., ante; "Complaint," §§ 670 et seq., post. Oregon. Persons holding liens by judgment or mortgage are not indispensable parties: Gaines v. Childers, 38 Oreg. 200, 63 Pac. Rep. 487. -« Whitney v. Higgins, 10 Cal. 547, 552, 70 Am. Dec. 748. Parties to a judgment and tiieir privies only are bound thereby: ■W'hitney v. Higgins, supra. See Wakefield v. Van Dorn, 53 Neb. 23, 25, 73 N. W^ Rep. 226. See notes 77 Am. Dec. 658; 81 Am. Dec. 632; 82 Am. Dec. 658; 31 Am. St. Rep. 217; 36 Am. St. Rep. 574; 56 Am. St. Rep. 857. See " Estoppel," §§ 816 et seq., post. Colorado. Ford G. M. Co. v. Langford, 1 Colo. 62 (1864); Bitter v. Mouat L. & I. Co., 10 Colo. App. 307, 51 Pac. Rep. 519 (deed of trust); Branham v. Nye, 9 Colo. App. 19, 47 Pac. Rep. 402. Nevada. Rosina v. Trowbridge, 20 Nev. 105, 17 Pac. Rep. 751 (ces- tuis (|iio trustent proper but not necessary parties). Oklahoma. Blan.shard v. Schwartz, 7 Okl. 23, 54 Pac. Rep. 303. Mech. Liens — 39 § 669 mechanics' liens. 610 title, -^ or acquiring interests, as by mortgage,^^ or other- wise,-^ subsequently to the lien sought to be foreclosed, and prior to the commencement of the action, should be made parties to the action.^*^ Mortgagees made parties defendant to an action to enforce a lien have the opportunity to present whatever interests, as mortgagees, may be imperiled, and have whatever protection the law gives. ^^ Where infants are parties, they may appear by their general guardian, and the appearance of the general guar- dian is sufficient to give the court jurisdiction of the persons of the infants defendants.^- § 669. Same. Interests pendente lite. It has already been seen that a lis pendens need not be filed upon the fore- closure of a mechanic's lien,^^ and it follows as a necessary corollary therefrom that persons who acquire interests by Oregon. See Osborn v. Logus, 28 Oreg. 302, 37 Pac. Rep. 456, 38 Pac. Rep. 190, 42 Pac. Rep. 997 (2 HiU's Ann. Laws, § 3677, construed, and the subject fully discussed). AVa.sliington. See Nason v. Northwestern M. Co., 17 Wash. 142, 49 Pac. Rep. 235; Douthltt v. MacCulsky, 11 Wash. 601, 40 Pac. Rep. 186; Turner v. Bellingham Bay L. & Mfg-. Co., 9 Wash. 484, 37 Pac. Rep. 674. Lessees of part of the Imilding should be made parties: Wright v. Cowie, 5 Wash. 341, 31 Pac. Rep. 878. Objection for non-joinder waived, unless made by demurrer or an- swer: Harrington v. Miller, 4 Wash. 808, 810, 31 Pac. Rep. 325. 2' Montrose v. Conner, 8 Cal. 344, 347 (1855). 28 Gamble v. Voll, 15 Cal. 507, 510. See Gaines v. Childers, 38 Oreg. 200, 203, 63 Pac. Rep. 487. 29 See Donohoe v. Trinity Consol. G. & S. M. Co.. 113 Cal. 119, 121, 45 Pac. Rep. 259. Colorado. Trustee and cestui que trust: Johnson v. Bennett, 6 Colo. App. 362, 40 Pac. Rep. 847; McClair v. Huddart, 6 Colo. App. 493, 41 Pac. Rep. 832. Oregon. Subsequent lienor not necessary party, but may be com- pelled to redeem or be barred: Koerner v. Willamette I. W., 36 Oreg. 90, 58 Pac. Rep. 863. 78 Am. St. Rep. 759. Lessee as party defendant: Lewis v. Beeman, 46 Oreg. 311, 80 Pac. Rep. 417. 3" Otlierwise in ease of mortgage; decree held void: Watts v. Gal- lagher, 97 Cal. 47, 50, 31 Pac. Rep. 626; Brackett v. Banegas, 116 Cal. 278, 282, 48 Pac. Rep. 90, 58 Am. St. Rep. 180. " Ah Louis V. Harwood, 140 Cal. 500, 505, 74 Pac. Rep. 41. 32 W'estern L. Co. v. Phillips, 94 Cal. 54, 55, 29 Pac. Rep. 328. New Mexico. Minors as parties, misjoinder: See Armijo v. Moun- tain E. Co.. 11 N. M. 235; 67 Pac. Rep. 726, 729. « See § 658, ante. 1 611 PARTIES. § 66S> conveyance or encumbrance after the commencement of the action need not be made parties to the action, as their interests will be bound by the judgment.^* 3« Whitney v. Higgins. 10 Cal. 547, 70 Am. Dec. 748. In Horn v. Jones, 28 Cal. 194, 204, it was held that persons having- no interest in the property at the time the action was commenced, and who die pendente lite and after a lis pendens has been filed, need not be made parties. See Sharp v. Lumley, 34 Cal. 611, 615; Brady v Burke 90 Cal 1, 27 Pac. Rep. 52. See § 658, ante. Colorado. Cornell v. Conine-Eaton L. Co., 9 Colo. App. 225, 47 Pac. Rep. 912 (time for commencing suit having expired). § 670 mechanics' liens. 612 CHAPTER XXXV. COMPLAINT. § 670. Complaint. In general. § 671. Stating cause of action. § 672. General rules of pleading contract. § 673. Same. Common counts. § 674. Same. Technical defects cured by acts of the parties. § 675. Same. Express contract. § 676. Same. Conditions precedent. § 677. Same. Completion of building, § 678. Same. Certificate of architect. § 679. Same. Prevention of performance. § 680. Same. Debt due. § 681. Same. Non-payment of indebtedness to plaintiff. § 682. Same. Premature payment to contractor by owner. § 683. Notice to owner. § 684. Same. Indebtedness due contractor from owner at time of notice. § 685. Same. Complaint by subcontractor's material-man. § 686. Same. Notice to contractor. Action against fund. § 687. Request of owner. Subclaimant. § 688. Contract alleged presumed to be non-statutory. § 689. Void contract. § 690. Same. Agreed price. Value. § 691. Same. Request of owner. § 692. Ownership. § 693. Knowledge of improvement by owner. § 694. Notice of non-responsibility. § 695. Agency. Authority of person causing improvement to be made. § 696. Same. Mining claim. § 697. Same. Contractor as agent of owner. § 698. Same. Allegations to bind contractor. § 699. Materials. § 700. Same. Defect in complaint waived. § 701. Same. Materials furnished. Dates. § 702. Employment. Death of owner. § 703. Nature of labor. § 704. Same. Grading and other work. §705. Object of labor. Well. § 706. Claim of lien. Time of filing. I 613 COMPLAINT. § 670 § 707. Same. Statutory completion for purpose of filing. § 708. Same. Alleging contents of claim. Generally. § 709. Same. Name of owner. § 710. Same. Description of property to be charged with the lien. § 711. Same. Claim of lien as exhibit to complaint. § 712. Same. Terms, time given, and conditions of contract. § 713. Same. Variance between claim as an exhibit and allega- tions of complaint. § 714. Same. Unnecessary statements in claim as an exhibit. § 715. Other interests. For what purpose alleged. § 716. Same. Alleging no other claim upon fund. § 717. Description of property. § 718. Same. Land for convenient use and occupation. § 719. Same. Description of whole or part of building. § 720. Same. Description in claim of lien referred to. § 721. Damages. § 722. Verification of complaint. § 723. Joinder of causes of action in complaint. § 724. Same. Designating causes of action separately. § 725. Same. Reference from one cause of action to another. § 726. Same. Actions that may be united in one complaint. § 727. Same. Objections, how raised. § 670. Complaint. In general.^ In this portion of the work, treating of pleading and practice, the anthor will ^ Complaint for broaoli of ooiitract to construct specific iiiiprove- ment.s: See Bryant v. Broadwell, 140 Cal. 400. 494. 74 Pac. Rep. 33. .lotion to foreclose nieohanie's lien. Coiiipluint. Siibxtautial com- pliunee with statute. The right to a meclianic's lien is purely a creature of the statute, and In order to sustain an action to foreclose such lien, it is essential that the complaint shall show a substantial compliance with the requirements thereof: Davis v. Treacy (Cal. App., 1908), 7 Cal. App. Dec. 5. A complaint which fails to aver what tlie claim of lien filed in the office of the county recorder contained, other than a description of the property sought to be charged, does not set forth a cause of action: Davis v. Treacy, supra. .\vernients of eoiiiplnint by an architect, held insufficient to show a right of recovery of a percentage on the cost of a building, but suf- ficient to sustain damages recoverable for breach of contract: See Fitzhugh V. Mason, 2 Cal. App. 220, 22."), 83 Pac. Rep. 282. Complaint in action by a builder and architect; G Cyc. 51. Complaint in an action to recover compensation due to builder: 6 Cyc. 92. Failure of record to show service of amended complaint on default Judgment: See Heinlen v. Erlanger (Cal., .Ian. 29, 1884), 3 Pac. Rep. 129. Filing of amended complaint ^vitlioiit service of copy- Discretion Is not abused by denying a motion to strike an amended complaint § 671 mechanics' liens. 614 confine himself to stating the rules that have been laid down by the courts under the statutes then in force, leaving the investigator to search in the preceding part of the book for the reasons governing such rules, and their present status. The general principles of pleading are applicable to actions to foreclose mechanics' liens, except as otherwise provided in the chapter of the Code of Civil Procedure - on mechanics' liens.^ But it is not intended here to enter upon the subject of pleadings in general,* and the title will be treated only so far as the rules are peculiar to or serve to illustrate the mechanic's-lien law. § 671. Stating cause of action. The facts necessary to constitute a cause of action, or to show the existence of the lien, whether upon the property or the fund, must, of course, be stated, in an action to foreclose a lien,'^ as in the case of all from the flies, on the ground that no copy thereof had been served upon the adverse party within time, where a copy is served before the filing- of the motion: Klokke v. Raphael, 6 Cal. App, Dec. 508, 96 Pac. Rep. 392. Alaska. Complaint: Jorgenson Co. v. Sheldon, 2 Alas. 607, 609. Arizona. Action by architect, breach of contract, allegation of non-payment: See McPherson v. Hattich (Ariz., March 30, 1906), 85 Pac. Rep. 731. Colorado. Pleading assignment: Hanna v. Savings Bank, 3 Colo. App. 28, 31 Pac. Rep. 1020. See " Cumulative Remedies," § 638. Idaho. Complaint for railroad construction: See Lewis v. Utah Const. Co., 10 Idaho 214, 77 Pac. Rep. 336. Washin^on. Action by original contractor against surety of sub- contractor; supplemental complaint: See Pacific B. Co. v. United States F. & G. Co.. 33 Wash. 47, 73 Pac. Rep. 772. » Kerr's Cyc. Code Civ. Proc, §§1183-120 3a. Estoppel by deed or iiiatler of record must be pleaded as such, when there is an opportunity to plead it: Flandreau v. Downey, 23 Cal. 354. See " Estoppel," §§ 816 et seq., post, and §§ 469 et seq., ante. 3 Kerr's Cyc. Code Civ. Proc, § 1198. See Green v. Palmer, 15 Cal. 412, 76 Am. Dec. 492. * See Kerr's Cyc. Code Civ. Proc, §§ 420 et seq., and notes. " O'Connor v. Dingley, 26 Cal. 11, 21; Weithoff v. Murray, 76 Cal. 608, 510, 18 Pac. Rep. 435; Corbett v. Chambers, 109 Cal. 178, 183, 41 Pac. Rep. 873. See Green v. Palmer. 15 Cal. 412, 415, 76 Am. Dec. 492; Jerome v. Stebbins, 14 Cal. 457, 459. See " Demurrer," §§ 728 et seq., post. Gist of action to foreclose mechanic's lien for money due upon the building contract Is the breach of the contract; and unless there Is an allegation of non-payment, the complaint is demurrable: Burke V. Dittus (Cal. App.), 96 Pac. Rep. 330. Colorado. See Mouat L. Co. v. Freeman, 7 Colo. App. 152, 42 Pac. Rep. 1040 (facts necessary to creation of lien must be set forth, whether it appears in the statement or not). See San Juan H. Co. v. 615 COMPLMNT. § 671 other actions. The reader must bear constantly in mind that the allegations which may be necessary in an action by one of the persons, whose rights are herein treated, against an- other, may be entirely different from those required in an action between others. The preceding portions of this worli should be consulted to determine what allegations, in any particular case, may be necessary. As a general rule, the plaintiff must recover, if at all, upon the cause of action set out in the complaint, and not upon some other cause of action, nor upon essential facts which were omitted, and which may be developed by the proofs." But a complaint which states a good cause of action for the recovery of money or for a personal judgment is not de- murrable as not stating sufficient facts to constitute a cause of action, because there is an ineffectual effort to state in the complaint another cause of action for the foreclosure of a lien to secure the same money.'' Carrothers, 7 Colo. App. 413, 43 Pac. Rep. 1053; Arkansas River L. R. & C. Co. V. Flinn, 3 Colo. App. 381, 33 Pac. Rep. 1006. Leave to sue re- ceiver: Colorado Fuel & I. Co. v. Rio Grande S. R. Co., 8 Colo. App. 493, 46 Pac. Rep. 845. Montana. Statutory steps, under § 2131 of tlie Code of Civil Pro- cedure, to be treated as jurisdictional: See McGlauflin v, Wormser, 28 Mont. 177, 72 Pac. Rep. 428. Nevada. Under act of 1875, no pleading by interveners was re- quired: Hunter v. Truckee Lodge, 14 Nev. 24, 31. See Skyrme v. Occi- dental M. Co., 8 Nev. 219. Oregon. Wilcox v. Keitli, 3 Oreg. 372. « Reed v. Norton, 99 Cal. 617, 619, 34 Pac. Rep. 333; Mondran v. Goux. 51 Cal. 151; Hicks v. Murray, 43 Cal. 515, 522. But see § 700, post. Lack of es.sential averment in complaint aided by ans^ver in crosH- complaint: See Donegan v. Houston (Cal. App., May 28, 1907), 90 Pac. Rep. 1073. Complaint stating: cause o£ action for personal jndiu:ment, where in- sufficient on foreclosure of lien, owing to unauthorized contract of executor: See San Francisco P. Co. v. Fairfield, 134 Gal. 220, 66 Pac. Rep. 255, 256. Idabo. Sufficient allegation on foreclosure of laborer's lien: See Robertson v. Moore, 10 Idaho 115, 77 Pac. Rep. 218. Washington. Complaint stating cause of action; irrigation-ditch; Instalment payment from sale of bonds: See Dyer v. Middle Kittitas Irr. Dist., 25 Wash. 80, 64 Pac. Rep. 1009, 40 Wash. 238, 82 Pac. Rep. 301. ' Cox v. Western Pac. R. Co., 47 Cal. 87, 90. Colorado. Complaint for labor performed for lessees of mining property, not stating cause of action for personal judgment, nor decree of foreclosure against owner: See Schweizer v. Mansfield, 14 Colo. App. 236, 59 Pac. Rep. 843; Wilkins v. Abell, 26 Colo. 462, 58 Pac. Rep. 612. AVasliington. Complaint held good for enforcement of a lien or for general recovery: See Lee v. Kimball (Wash., March 12, 1907), 88 Pac Rep. 1121 (weU). § 672 mechanics' liens. 616 § 672. General rules of pleading contract. " Under the system of pleading at common law, it was the general rule that a party to a special contract, who had performed his part of it, and nothing remained to be performed under the contract but the payment of the money, could maintain gen- eral assumpsit to recover the amount due him on the con- tract. It was also a general rule that while the special con- tract remains open and unrescinded,. the party whose part of it is unperformed, in any respect, cannot sue in general assumpsit, but must sue in special assumpsit on the contract. " To the latter rule there were several exceptions, and among them was the case where the special contract has been deviated from or modified by common consent and the ser- vice has been performed : the party claiming compensation for his services must sue in general assumpsit. The supreme court, in De Boom v. Priestly,'^ affirmed the doctrine of the exception just stated, and that case was followed by Rey- nolds V. Jourdan,^ and Adams v. Pugh,^" . . . [The plain- tifif] can allege the execution of the contract, its terms, and subsequent modification or deviation made by agreement or consent of the parties, the performance of his part of the contract as altered or affected by the modifications or de- viations, the non-performance by the other party of his part of the contract, and the damages thereby sustained by the plaintiff. All the cases hold that in an action brought in general assumpsit, in consequence of a deviation from the terms of the contract made by consent of the parties, the plaintiff may, and should, introduce in evidence the contract, and if it has not been wiiolly lost sight of in the services as performed, the rates and terms of compensation fixed in the contract will be the measure of damages, so far as the same can be traced in the performance. He must, of course, prove the performance of all his part of the contract, except so far as the same has been deviated from by consent. The contract, therefore, does constitute the basis of the action, and if there is any meaning in the rule that the evidence offered must correspond with the allegations, there can be no « 1 Cal. 206. » 6 Cal. 108. » 7 Cal. 150. G17 COMPLAINT. § 673 question that, according to the rules of the Practice Act re- quiring tl.e facts to be stated, the contract should be set forth in the complaint, together with the necessary allegations of deviations,^'^ performance, etc., which the plaintiff must prove, instead of the general allegation that the defendant is indebted to the plaintiff for work and labor, etc.^- . . , Mr. Chief Justice Bronson says : ^^ ' When goods are sold to be paid for by a note or bill payable at a future day, and the note or bill is not given, the vendor cannot maintain as- sumpsit on the general count for goods sold and delivered, until the credit has expired, but he can sue immediately for a breach of the special agreement.' " ^* § 673. Same. Common counts. In discussing the gen- eral rules laid down in the preceding section, the court has said : " The rules of pleading in regard to the employment of the common counts in actions on contracts are well stated by Professor Greenleaf, in the second volume of his work on Evidence, ^^ as follows : ' The law on this subject may be reduced to three general rules : " • 1. So long as the contract continues executory, the plaintiff must declare specially; but when it has been exe- cuted on his part, and nothing remains but the payment of the price in money b}' the defendant, which is nothing more than the law would imply against him, the plaintiff' may de- clare generally, using the common counts, or may declare specially on the original contract, at his election. If the mode of payment was any other tlian in money, the count must be on the original contract. And if it was to be in money, and a term of credit was allowed, the action, though " Citins White v. Soto. 82 Cal. 654. 657, 23 Pac. Rep. 210; Daley v. Russ, 86 Cal. 114, 116, 24 Pac. Rep. 867. See Barllari v. Ferrea. 59 Cal. 1. 4. '= Citing Green v. Palmer, 15 Cal. 412. 76 Am. Dec. 492; Jerome v. Stebbins. 14 Cal. 457. " Citing Hanna v. Mills, 21 Wend. 90. " O'Connor v. Dingley, 26 Cal. 11, 20, 23. See Kalkmann v. Baylls, 17 Cal. 291. Arizona. Pleading oral additions to written contract: See O'Connor V. Adams, 6 Ariz. 404. 59 Pac. Kep. 105. Hawaii. Alleging express or implied contract: See Holmes v. Mello, 15 Hawn. 72. 75. " § 104. § 673 mechanics' liens. 618 on the common counts, must not be brought until the term of credit has expired. This election to sue upon the conunon counts, where there is a special agreement, applies only to cases where the contract has been fully performed by the plaintiff. " ' 2. Where the contract, though partly performed, has been either abandoned by mutual consent, or rescinded and extinct by some act on the part of the defendant. Here the plaintiff may resort to the common counts alone for remuneration for what he has done under the special agree- ment. But, in order to do this, it is not enough to prove that the plaintiff was hindered by the defendant from per- forming the contract on his part ; for we have just seen that in such case he must sue upon the agreement itself. It must appear from the circumstances that he was at liberty to treat it as at an end. " ' 3. Where it appears that what was done by the plain- tiff was done under a special agreement, but not in the stipu- lated time or manner, and yet was beneficial to the defend- ant, and has been accepted and enjoyed by him. Here the plaintiff cannot recover upon the contract from which he has departed, yet he may recover upon the common counts for the reasonable value of the benefit which, upon the whole, the defendant has derived from what he has done.' " " This last general rule or subdivision seems to be modified somewhat by the more recent decisions, which allow the plaintiff to sue in an action to foreclose the lien upon the express contract, where the imperfections are trifling, or there is a substantial performance of the express original contract.^^ " Castagnino v. Balletta, 82 Cal. 250, 258, 23 Pac. Rep. 127. " See " Performance," §§ 334 et seq., ante. Colorado. See Charles v. HaUack L. Co., 22 Colo. 283, 43 Pac. Rep. B48; McGonigle v. Klein, 6 Colo. App. 306, 40 Pac. Rep. 465. But see Walling V. Warren, 2 Colo. 434. Ileeovery on a quantum meruit in an action on one account for tlie total sum due: See Donegan v. Houston (Cal. App., May 28, 1907), 90 Pac. Rep. 1073. Montana. Contractor abandoning work on a whole contract cannot recover on quantum meruit: See Riddell .v. Peck- Williamson H. & V. Co., 27 Mont. 44, 69 Pac. Rep. 241. 619 coMPLxUNT. §§ 674, 675 § 674. Same. Technical defects cured by acts of the parties. An action in indebitatus assumpsit lies to recover a balance for work and labor done and materials furnished, where the express special contract was substantially com- plied with by plaintiff, and where every technical failure of the plaintiff to comply with its strict letter was cured by the acts and consent of the parties.^* § 675. Same. Express contract. If there is no special contract, none should be pleaded.^® The express contract may be declared upon in htec verba,-" or in substance, and according to its legal effect. When the plaintiff in an action to foreclose a mechanic's lien alleges that a written contract was made between him and the defendant for the erection of a building upon which the lien is claimed, and that sub- sequently, by their oral agreement, it was modified, and sets forth clearly and with certainty what the contract as modi- fied was, according to its legal effect, and alleges that it was executed on the part of plaintiff, the contract is not subject to defendant's demurrer on the ground of ambiguity, uncer- tainty, or unintelligibility.^^ " Griffith v. Happersberger, 86 Cal. 605, 613, 25 Pac. Rep. 137, 487. " Ehlers v. Wannaclt, 118 Cal. 310, 313, 50 Pac. Rep. 433. ^ See Rauer v. Fay, 110 Cal. 361, 42 Pac. Rep. 902. W^'ashington. Defendant not misled; motion denied to set out con- tract in complaint; substance of contract set out: See Ekstrand v. Barth, 41 Wash. 321, 83 Pac. Rep. 305. -'■ White V. Soto, 82 Cal. 654, 657, 23 Pac. Rep. 210. \VIiere complaint alleged inateriaLs to have been furnished on the 1st of July, and the claim of lien stated that the materials were fur- nished " on or about " July 1st, the plaintiff will be limited to the allegations of the complaint, and he cannot recover for materials fur- nished before July 1st: Santa Monica L. & M. Co. v. Hege (Cal.), 48 Pac. Rep. 69; see, on rehearing, 119 Cal. 376, 51 Pac. Rep. 555. As to whether or not It Is nece.s»ary to allege date of contract, see California P. W. v. Blue Tent Cons. Co. (Cal., Oct. 8, 1889), 22 Pac. Rep. 891. In case of an assiennient, it Is not necessary to allege that the as- signment was in writing: Patent B. Co. v. Moore, 75 Cal. 205, 211, 16 Pac. Rep. 890. As to ^vhetlier or not it im ueee.M.sary to allege tiiat tlie .Hlutiitory orlglnal contract was In writing, see Barber v. Reynolds, 33 Cal. 497, 502 (the original contract was void). Montana. It is not necessary to allege the name of the contract, 1. e., wliether it was express or implied; when facts amounting to a contract are stated, the law names it: Nolan v. Lovelock, 1 Mont. 224. §§ 676, 677 mechanics' liexs. 620 § 676. Same. Conditions precedent. Conditions pre- cedent in the contract must be alleged to have been per- formed," or an excuse alleged for non-performance. Thus when payments are due upon the performance of portions of the work, based upon estimates of the engineer, the plaintiff must allege the making of such estimates, or a legal excuse why they were not made.-^ § 677. Same. Completion of building. But it seems that it is not necessary, generally, for a subclaimant to allege the completion of the building, except as it may be necessary to show that the claim of lien was filed in time; for instance, within thirty days from the date of the completion of the structure.-^ An allegation in the complaint, as to the com- pletion of a building, applies to all its parts, including ex- cavations necessary to its construction, as contemplated by the contract.-^ 22 So In an action by the owner against the contractor, where the contract provided that the contractor should pay aU bills against the house, or litigate the same before paying them if he deemed them unjust, it is not sufficient to merely allege that the defendant failed to pay them; and where the contract provided that the defendant was to pay only such bills as the plaintiff had not made himself personally liable for, the complaint must allege that plaintiff had not made him- self so liable: Fisher v. Pearson, 48 Cal. 473. Arbitration as condition precedent. Where it is provided, in a contract for the construction of a building, that if any dispute shall arise, it shall be referred to arbitration, such reference is a condition precedent to the right to maintain an action: Burke v. Dittus, 6 Cal. App. Dec. 638, 96 Pac. Rep. 330. A.S to averment of performance of conditions precedent, see Kerr's Cyc. Civ. Code, § 1439, note pars. 35-45. Colorado. Allegation that plaintiff did all the work he was re- quired to do by defendants, not an allegation of performance of work: See Griffin v. Seymour, 15 Colo. App. 487, 63 Pac. Rep. 809, 810. \Va. Russ L. Co. V. Garrettson, 87 Cal. 589, 592, 25 Pac. Rep. 747. I 625 COMPLAINT. §§ 685-688 § 685. Same. Complaint by subcontractor's material-man. A complaint by a subcontractor's material-man to foreclose the lien against the owner, which is in the usual form, and sets forth that at the time of the statutory notice, given to the owner by the plaintiff, a certain sum was yet unpaid to the original contractor, but contains no allegation that any- thing was due and unpaid from the original contractor to the subcontractor, states a cause of action, and a demurrer thereto is improperly sustained.*^ § 686. Same. Notice to contractor. Action against fund. As the notice provided by section eleven hundred and eighty- four of the Code of Civil Procedure is not required to be given to the original contractor, there is no necessity of averring such notice in an action bj- a subclaimant against the fund; nor any facts, as against the original contractor, which are peculiarly within the contractor's knowledge ; nor of a claim by the contractor, which is presumably within the knowledge of the subclaimant. *- § 687. Request of owner. Subclaimant. It has also been held that in such complaint of a subclainumt under a valid original contract it may be alleged that the work was done at the request of the owner, and that the owner agreed to pay plaintiff, the contract being with the original eon- tractor.^^ § 688. Contract alleged presumed to be non-statutory. Where there is no allegation in the complaint of a con- tractor's material-man that the contract between the owner and the contractor was for an amount exceeding one thon- " Los Ang-eles P. B. Co. v. Los Angeles P. B. & D. Co., 2 Cal. App. 303, 304, 83 Pac. Rep. 292 (rehearing denied by supreme court: sylla- bus misleading). In this case plaintiff did not ask for a personal judgment against the contractor. « Los Angeles P. B. Co. v. Los Angeles P. B. & D. Co., 2 Cal. App. 303. 305, 83 Pac. Rep. 292. *■= Parker v. Placer M. Co,. 61 Cal. 348. The opinion is short, not very clear, and the law seems doubtful. See "Variances," S§ 853 et se ;., post. Mech. Liens — 40 § 689 mechanics' liens. 626 sand dollars, it seems to be presumed that, therefore, the contract was not such a one as is required to be filed, but is a non-statutory original contract.** § 689. Void contract. Where the contract is not re- corded, the overruling of a special demurrer to a complaint, which fails to allege that the original contract was in writ- ing, or that it was for more than one thousand dollars, is harmless, these matters being peculiarly within the knowl- edge of the owner. ^'"^ Amount due. "Where the contract is void, payment by the owner to the contractor is no defense to the complaint seek- ing to enforce a lien, and it is unnecessary to allege that any- thing was due the contractor when notice was served on the owner.*^ Facts showing original contract to be void. It is not necessary to allege in the complaint of a subcontractor or subclaimant that the original contract is void, as that is a proper matter of evidence, especially on material facts alleged in the complaint.*'^ But it had been held that in an action to enforce a lien on the property, subelaimants must show, by proper averments, either that the building was con- structed under a valid contract, if statutory, or that it was " Nason v. John, 1 Cal. App. 538, 541, 82 Pac. Rep. 566. See " Non-statutory Contract," §§ 258 et seq., ante. *5 Berentz v. Belmont O. Co., 148 Cal. 577, 584, 84 Pac. Rep. 47, 113 Am. St. Rep. 308. Utah. As to complaint of subcontractor setting forth contract be- tween original contractor and owner, see Culmer v. Caine, 22 Utali 216, 61 Pac. Rep. 1008. See Morrison v. Inter-Mountain S. Co., 14 Utah 201, 46 Pac. Rep. 1104; Morrison v. Willard, 17 Utah 306, 53 Pac. Rep. 832. « Berentz v. Belmont ©. Co., 148 Cal. 577, 584, 84 Pac. Rep. 47, 113 Am. St. Rep. 308. Judgment impressing fund due contractors. Owner vritbout com- plaint. In an action to foreclose inechanics' liens, the owner cannot complain of the action of the court in impressing a fund deposited in court by the owner, and found due to tlie contractors, with any personal judgments rendered therein against sucli contractors in favor of subcontractors and material-men, whose liens have been declared void for the failure of the contractor to record the contract: Los Angeles P. B. Co. v. Higgins (Cal. App., 1908), 7 Cal. App. Dec. 95. " Macomber v. Bigelow, 126 Cal. 9, 12, 58 Pac. Rep. 312; Yancy V. Morton, 94 Cal. 558, 29 Pac, Rep. 1111. 627 COMPLAINT. §§690,691 not; and a complaint upon one theory will not warrant a judgment rendered upon the other ; and it was so held where the plaintiffs alleged facts going upon the theory that there was no contract, and that they dealt directly with the owner of the building, and that he was liable for the whole of their claim."** § 390. Same. Agreed price. Value. In an action by subclaimants under a void statutory original contract to foreclose a lien upon the property, it is necessary to make allegations as to the value of the labor done and materials furnished to the contractor, and it is not sufficient to allege merely what amounts the contractor agreed to pay there- for.*" But, in the absence of a demurrer for uncertainty, where the statutory original contract is void for want of record, and the complaint contains no direct averment of the value of the materials furnished by the material-man, but it was alleged that the claimant furnished them to the contractor at the agreed price stated, it is sufficient on appeal, although evidence of the fact, rather than the ultimate fact of value, since the agreed price was prima facie evidence of the value of the materials, and it must be held that the pleader in this manner alleged the value.'° § 691. Same. Request of owner. Under a void statutory original contract, as well as when there is a substantial breach of section eleven hundred and eighty-four, as to pay- ments, under a statutory original contract, subclaimants may sue for the value of the materials as furnished at the special instance and request of the owner of the building, and it was held that it was not necessarv to set out the original contract <« Reed v. Norton. 99 Cal. 617, 619, 34 Pac. Rep. 333. But see Yancy V. Morton, 94 Cal. 558, 560, 29 Pac. Rep. 1111. See " Variances," §§ 853 et seq., post. « Booth V. Pendola, 88 Cal. 36, 41, 23 Pac. Rep. 200, 25 Id. 1101. See Booth V. Pendola (Cal., Aug. 1, 1890), 24 Pac. Rep. 714. See "Evidence," §§ 798 et seq., and §§ 829 et seq., post. ^ Bringham v. Knox, 127 Cal. 40, 44, 59 Pac. Rep. 198. See Russ L. & M. Co. V. Garrettson, 87 Gal. 589, 25 Pac. Rep. 747. § 692 MECHAXICS' LIENS. 628 and allege its invalidity. But there seems to be some conflict in reference to these points.^^ § 692. Ownership." In all actions to foreclose a lien upon the property, the person sued as owner should be shown to be the owner at the time of commencing the action. °^ It will be observed that this involves an entirely different question from that concerning the person named as owner in the claim of lien ; ^* and where the complaint avers that, in the claim of lien as filed, the plaintiff described the premises as those " Yancy v. Morton, 94 Cal. 558, 560, 29 Pac. Rep. 1111. In Reed v. Norton, 99 Cal. 617, 620, 34 Pac. Rep. 333, an action under a void original contract, it was said: "In an action to enforce tlie lien of a mechanic or material-man, the complaint must show, either that the building was constructed under a valid statutory contract, or that it was not; and a complaint upon one theory will not warrant a judg- ment rendered upon the other. In their complaints, respondents allege the facts, and go upon the theory that there was no contract, that they dealt directly with the owner of the building, and that he is liable for the whole of their claims. The court finds and proceeds upon the theory that these averments of respondents are not true, that there was a valid contract, and that respondents dealt directly with Helm as contractor, and not with Norton (the owner). The judg- ment must therefore be reversed. Upon the theory on which it was rendered, tlie complaint does not state facts sufficient to constitute a cause of action." See "Variances," §§853 et seq., post. In Coss V. MacDonough, 111 Cal. 662, 667, 44 Pac. Rep. 325, it was said: "It is insisted, the claim of lien having set up a contract be- tween respondent Grubb and the original contractor Andrews, no recovery could be had upon a complaint setting out a conttract with defendant MacDonough, the owner. We think this contention un- sound. That a complaint against the owner of the building may be filed under § 1184 [1183?] of the Code of Civil Procedure, upon a claim of lien setting up a contract with an alleged original contractor, is expressly held in Davies-Henderson L. Co. v. Gottschalk, 81 Cal. 641, 22 Pac. Rep. 860, and the principle is also fully supported in Yancy v. Morton, 94 Cal. 558, 29 Pac. Rep. 1111." '' Colorado. As to alleging ownership, see Sprague I. Co. v. Mouat L. & I. Co., 14 Colo. App. 107, 121, 60 Pac. Rep. 179, 183. Idaho. Allegation that labor was performed for owners, without showing who they were: Lowe v. Turner, 1 Idaho 109. Joint o^vner.s: See Id. '"^ Corbett v. Chambers, 109 Cal. 178, 184, 41 Pac. Rep. 873. See Santa Barbara v. Huse, 51 Cal. 217, 219. Oregon. Alleging ownership at time of work: See Title G. & T. Co. V. Wrenn, 3.5 Oreg. 62, 56 Pac. Rep. 271, 76 Am. St. Rep. 454. AVyoming. See Fein v. Davis, 21 Wyo. 118. Failure to allege that name of o^vner tva.s unknown: See Wyman v. Quayle, 9 Wyo. 326, 63 Pac. Rep. 9SS. ^ See " Claim of Lien," §§ 361 et seq., ante. See Hicks v. Murray, 43 Cal. 515, 521. 629 COMPLAINT. §§ 693, 694 purchased and occupied by a certain person, there is no allegation that such person owned the property, or that any particular person owned the property at the time of. the commencement ot" the action. ^^ Conveyance. As against a general demurrer, there being no special demurrer, an allegation that a deed to the property was delivered to a party is sufficient to show ownership in such party."'" § 693. Knowledge of improvement by owner. The owner's knowledge, in some form, of the work should be alleged, to charge his interest." Where, in an action to foreclose a lien, it is averred that the building was constructed upon the laud " with the knowledge of each of said defendants," and the owner is a defendant, the complaint alleges that such owner had notice of the construction of the building.^** § 694. Notice of non-responsibility. The complaint, how- ever, need not aver that the owner of the realty did not give notice that he would not be responsible for the construction of the building, in order to lund liis interest in the property 65 Hicks V. Murray. 43 Cal. 515, 521. AVIiere the coniplaiiit alleges senerally lliat tlie coiistruftor of the biiil Ward V. Crane, 118 Cal. 676, 678, 50 Pac. Rep. 839. It has been held that it is not necessary for the owner's laborer or material-man to state the nature of the alterations or repairs made, or whether each person performed a separate job, or contributed to a separate altera- tion or repair, or wliether all contributed to the same thing: Jewell v. McKay, 82 Cal. 144, 146, 23 Pac. Rep. 139. " Sweeney v. Meyer, 124 Cal. 512, 57 Pac. Rep. 479. Colorado. The nature of the work, showing that it Is within the statute, must be pleaded: Lindemann v. Belden Consol. M. & M. Co., 16 Colo. App. 342, 65 Pac. Rep. 403. Under the act of 1864, it was held that the pleading should show whether the claimant labored as carpenter, mason, or otherwise, in order that it might be seen whether lie was entitled to a lien: Ford Mining Co. v. Langford, 1 Colo. 62, 65. Same principle: Arkansas R. L. R. & C. Co. V. Flinn, 3 Colo. App. 381, 33 Pac. Rep. 1006 (1889). §^705,706 mechanics' liens. 636 porated city or town, or whether an ordinance for grading was to be passed by the board of supervisors of the city, it was demurrable on this ground.*^ It has been held to be sufficient, where the complaint is in effect an indebitatus assumpsit count at common law, and declares upon an executed contract, and it lacks the ordinary allegations of indebtedness, and that the services were rendered at defendant's request, which are not necessary when the con- sideration, as well as the promise, are implied from the nature of the transaction declared on.^* § 705. Object of labor. Well. Where the allegations of the complaint merely show that materials were furnished for the construction and drilling of a " well," while it may be surmised from the cdrporate name of an oil-mining company therein alleged to be the owner thereof that such well is an oil-well, yet, in the absence of an allegation compelling such conclusion, it may be construed as a w^ell constructed simply for the purpose of obtaining water.*^ § 706. Claim of lien.^« Time of filing. In actions to fore- close liens upon the property, as in other cases, where the right of a person depends upon his doing a particular thing within a definite number of days after a certain event, it is necessary for him to allege and prove that the acts were performed within the time required by law.^^ So in an action to foreclose a lien, the plaintiff must allege that the claim of lien was filed within the proper time ; ^® and so an S3 DurreU v. Dooner, 119 Cal. 411, 51 Pac. Rep. 628. ^ Doneg-an v. Houston (Cal. App., May 28, 1907), 90 Pac. Rep. 1073. ^ Parke & L. Co. v. Inter Nos O. & D. Co., 147 Cal. 490, 492, 82 Pac. Rep. 51. *« See, generally, "Claim of Lien," §§361 et seq., ante; "Materials," §§699 et seq., ante; "Demurrer," §§728 et seq., post. AIa.««ka. Claim of lien, generally: Jorgenson Co. v. Sheldon, 2 Alas. 607, 609. « Cohn V. Wright, 89 Cal. 86, 88, 26 Pac. Rep. 643. Not neces.sary to aver '«v]iut iilaintilC paid for recording: claiiu o£ Uen: Mulcahy v. Buckley, 100 Cal. 484, 49U, 35 Pac. Rep. 144. '^ For instance, before the amendment of 1897, within thirty days after the completion of the building: Slight v. Patton, 96 Cal. 384, 387, 31 Pac. Rep. 248 (subcontractor). See " Time of Filing Claim," §§ 422 et seq., ante. 637 COMPLAINT. § 707 allegation that the claim of lien was filed " on or about " a certain date would be insufficient.^" And the complaint is not subject to general demurrer, if it otherwise appears therefrom that the claim was filed within the proper time."" § 707. Same. Statutory completion for purpose of filing. Where, however, the contractor's material-man avers in his complaint that the contractor stopped all work on a certain day, and surrendered the contract and his rights there- under to the owner, and that the latter accepted the structure and took possession thereof, and ever since continued in the occupation and use thereof, but does not aver how near the structure approached completion, it seems to be a sufficient allegation of the completion of the building for the purpose of filing liens, even if it appears that the contract is void."*^ An allegation of completion on a certain date was construed to mean actual completion. ^- Colorjulo. Arkansas R. L. R. & C. Co. V. FHnn. 3 Colo. App. 381, 33 Pac. Rep. 1006. Nevada. An omission so to plead can only be taken advantage of by demurrer: Skyrme v. Occidental M. Co., 8 Nev. 219. Likewise as to time of commencing' suit: Id. Oregon. Dalles L. Co. v. Wasco W. Mfg. Co., 3 Oreg. .527. It must afiirniatively appear from complaint that notice filed con- tained all essential provisions required by the statute; that it was proper in form, verified as required, and filed within the time pre- scribed: Curtis V. Sestanovich, 26 Oreg. 107, 37 Pac. Rep. 67; Pilz v. Killingsworth. 20 Oreg. 432, 26 Pac. Rep. 305. See Smith v. Wilkins (Oreg., May 1, 1897), 48 Pac. Rep. 708; Dalles L. Co. v. Wasco W. Mfg. Co., 3 Oreg. .527. Vtali. The claim of lien cannot be helped out by averments in the complaint: Morrison v. Willard, 17 Utah 306, 53 Pac. Rep. 832, 70 Am. St. Rep. 784. s" Cohn V. Wright, 89 Cal. 86, 89, 26 Pac. Rep. 643. Oregon. So an allegation that the claim was duly made out and filed, as this is a conclusion of law: Pilz v. Killingsworth, 20 Oreg. 432, 26 Pac. Rep. 305; or where it is alleged to have been done "in pursu- ance of the statute in such cases made and provided": Smith v. Wil- kins (Oreg., May 1, 1897), 48 Pac. Rep. 70S. » Wood v. Oakland & B. T. Co., 107 Cal. 500, 502; Parke & L. Co. v. Inter Nos O. & D. Co., 147 Cal. 490, 493, 82 Pac. Rep. 51 (on a certain date " within thirty days after the completion of the said well," held sufficient). Ses "Demurrer." §§728 et seq.. post. •" Giant P. Co. v. San Oiogo F. Co., 78 Cal. 193. 105. 198. 20 Pac. Rep. 419. ■'- Parke & L. Co. v. Inter Nos O. & D. Co., 147 Cal. 490, 493, 82 Pac. Rep. 51. §§ 708-711 mechanics' liens. 638 § 708. Same. Alleging contents of claim. Generally. Where the complaiut as to the contents and requirements of the claim of lien substantially follows the language of the statute, and refers to the place of record of the claim, and the record was made a part of the complaint, it seems that the averments with respect to the claim are sufficient. ^^ § 709. Same. Name of owner. Where the complaint alleged that the claim of lien stated the name of E. B. N. as the owner of the house and the reputed owner of a lease- hold interest in the realty, and that the claim of lien stated that the owner of the fee of the real estate was not known at the time of filing the claim, it is a substantial averment that it was stated in the claim that neither the name of the real owner nor of the reputed owner was known to the plaintiff when he filed the claim."* § 710. Same. Description of property to be charged with the lien. It is sufficient for the complaint to allege that the claim of lien described the property; it is not necessary to allege in specific terms that the claim contained a " de- scription of the property sufficient for identification." ^^ § 711. Same. Claim of lien as exhibit to complaint. Where it is alleged in a complaint to foreclose a lien that a copy of the claim of lien is attached to and made a part of the complaint, whether it contains the statements required by the statute or not may be shown by referring to the claim."" And where a copy is so attached, it becomes a »3 Barilari v. Ferrea, 59 Cal. 1, 2. M West Coast L. Co. v. Newkirk, 80 Cal. 275, 276, 22 Pac. Rep. 231. See "Claim of Lien," §§ 379 et seq., ante. »=i Coss V. MacDonough, 111 Cal. 662, 667, 44 Pac. Rep. 325. See "Description," §§ 399 et seq., ante. As to eoinplaint i?oo«I aj^ainst general demurrer on the ground that It did not allege that the claim of lien described the property sought to be charged with the lien, and the terms, time given, and condi- tions of the contract, a copy of the claim being annexed as an ex- hibit, see Georges v. Kessler, 131 Cal. 183, 63 Pac. Rep. 466. »« Russ L. Co. V. Garrettson, 87 Cal. 589, 594, 25 Pac. Rep. 747. See Cohn V. Wright, 89 Cal. 86; 89, 26 Pac. Rep. 643. See §§ 699 et seq., ante. 639 COMPLAINT. §§ 712, 713 part of the allegations of the complaint; for there can be no difference between setting forth such instrument in the body of the pleading and in annexing it as an exhibit, and making it a part of the pleadings by proper reference. In each case the copj^ is a part of the pleading. The only difference is in the arrangement or sequence of the parts, and this difference is unimportant upon the question whether the complaint states a cause of action. The copy may thus be referred to in order to ascertain whether the claim of lien described the property, and the terms, time given, and conditions of the contract.''^ § 712. Same. Terms, time given, and conditions of con- tract. And where such claim is so attached, and it states that the work was to be done and materials furnished " as specified in the plans and specifications of said buildings or structures," the complaint is good as against general demurrer, although it does not set forth the plans and specifications of the original contract.^^ § 713. Same. Variance between claim as an exhibit and allegations of complaint. A claim of lien attached as an exhibit, stating " there was no time specified for the com- mencement or completion of the work," and that payment was " to be made . . . upon completion of the work, or as Alaska. Better practice to plead notice verbatim, or attach copy and make same part of complaint: Jorgenson Co. v. Sheldon, 2 Alas. 607, 609. Arixoun. Statement in exhibit, made part of complaint, cannot supply necessary alleg'ation omitted from complaint: McPlierson v. Hattich (Ariz., March 30, 1906), 85 Pac. Rpe. 731. Oregon. Matthiesen v. Arata, 32 Oreg. 342, 50 Pac. Rep. 1015, 67 Am. St. Rep. 535; Pilz v. Killingsworth, 20 Oreg. 432, 26 Pac. Rep. 305. Where the copy of the verilication lias tlie word " seal " written after the signature of the notary, it is sufficient, although there is no averment that the official seal was attached thereto: Griffith v. Max- well, 20 W'ash. 403, 55 Pac. Rep. 571. Wa.«4hinK:ton. Bill, as exhibit, part of complaint: Fitch v. Apple- gate, 24 Wash. 25, 64 Pac. Rep. 147. »' George v. Kessler, 131 Cal. 183, 184, 63 Pac. Rep. 466. See § 712, post. »» Slight V. Patton, 96 Cal. 384, 386, 31 Pac. Rep. 24S. See §711, ante, and "Demurrer," §§728 et seq., post. Aloutaaa. See Duignan v. Montana Club, 16 Mont. 189, 197. ^§ 714, 715 mechanics' liens. 610 required during its progress," and complaint alleging " that no time for said payment was or is stated or set forth in said contract or agreement," the complaint is not thereby rendered demurrable for uncertainty or ambiguity, since the law would require payment on completion of the Avork. '■*'■' § 714. Same. Unnecessary statements in claim as an exhibit. An essential allegation of the complaint may con- trol, notwithstanding an unnecessary statement in the claim of lien attached as an exhibit, and this does not render the complaint fatally defective. Thus a complaint is not fatally defective which alleges that the claim of lien was filed within thirty daj's after the completion of the building, and the claim of lien attached as an exhibit shows that it was filed after the time alleged in the complaint.^"" § 715. Other interests."^ For what purpose alleged. With reference to this subject, it has been said by the court : " The complaints, after averring the performance of the work for which it is sought to enforce a lien on the land, allege that Cook has or claims some interest in the land, but that the same is subject to the plainiff's lien. The court below treated the general denial in the answer as equivalent to a disclaimer of Cook that he had or claimed any interest in the land. This Avas error. The answer Avas only a denial of the issuable facts stated in the complaint, and the circumstance that Cook had, or claimed, some interest in the land was, of itself, wholly immaterial, except in so far as it shoAved that he was a necessary part}' to the » Bryan v. Abbott, 131 Cal. 222, 224, 63 Pac. Rep. 363. "« Slight V. Patton, 96 Cal. 384, 386, 31 Pac. Rep. 248. The court said that it was evident that there was a clerical error in a date, and read "August" instead of "November." AVa.shington. Variance between allegations of the complaint and claim of lien attached as an exhibit, held to show a clerical error: Seattle L. Co. v. Sweeney, 33 Wash. 691, 74 Pac. Rep. 1001. "^ Allegation of ownership of well and appurtenances, and owner and holder of an interest in the land: Parke & L. Co. v. Inter Nos O. & D. Co., 147 Cal. 490, 495. Colorado. San Juan H. Co. v. Carrothers, 7 Colo. App. 413, 43 Pac. Rep. 10.53. See, generally, E;aton v. Rocca, 75 Cal. 9-3, 16 Pac. Rep. 529. 641 COMPLAINT. § 715 action.*"^ But the averment that his interest was subject to the plaintiff's lien presented a material issue, to which the answer was responsive. The answer, therefore, was not a denial that he had, or claimed, an interest in the land, l)ut only of the fact that it was subject to the plaintiff's lien." ^°^ '"- Rliodes, J., in concurring', disputed tliis point. See Slight v. Pat- ton. 96 Cal. 384, 387, 31 Pac. Rep. 248; Donolioe v. Trinity Consol. G. & S. M. Co., 113 Cal. 119, 121, 45 Pac. Rep. 259. '»3 Elder v. Spinks, 53 Cal. 293, 294. See Pennie v. Hildreth. 81 Cal. 127, 131. 132, 22 Pac. Rep. 398. In Sichler v. Look, 93 Cal. 600, 608, 29 Pac. Rep. 220, it was said: " Tlie averment in the complaint, that the appellant 'has or claims to have some interest or claim upon said premises, whicli interest or claim is subsequent to and subject to the lien of the plaintiff's mort- gage,' was for the purpose of showing that the appellant is a proper party defendant, and is sufficient therefor. The character of his in- terest is immaterial to the plaintiff, and need not be set forth in the complaint: Poett v. Stearns, 28 Cal. 226; Anthony v. Nye, 30 Cal. 401. Sucli an averment is not an issuable fact: Elder v. Spinks, 53 Cal. 293. If the appellant had desired to protect such interests, he should have appeared and presented it to the court with the grounds upon wliich he claimed its protection. If he has any interest in the mortgaged premises paramount to the mortgage, it will not be affected by the judgment or the sale thereunder." This case does not seem to prop- erly state the decision in Elder v. Spinks, supra. The court further said: "The complaint, however, alleges that the defendant claims some interest in the premises adverse to the plaintiff, and 'that the claim of said defendant is without any right whatever, and defendant has not any estate, right, title, or interest whatever in or about said premises, or any part thereof.' The answer admitted that the defendant had some claim to the property, but denied tnat the claim was without right, and denied that defendant had not any estate or right therein. This, as was held in Elder v. Spinks, 53 Cal. 293, raised a material issue; and, although the pleader should un- doubtedly have proceeded to set out the nature of the interest claimed by the defendant, still there was no demurrer to the answer, and it does not appear that any objection was taken to the evidence intro- duced under the issue as made. The objection now urged — that the finding of fact is without the issues, and cannot therefore be con- sidered — cannot be sustained": Tompkins v. Sprout, 55 Cal. 31, 35 (action to set aside deed). In Pennie v. Hildreth, 81 Cal. 127, 131, 132, 22 Pac. Rep. 398, it was said: "The appellant insists that the court below erred in sustaining the demurrer to his answer, and rendering judgment against him. This depends upon whether an answer of general denial to an un- verified complaint puts in issue any material fact in an action to quiet title. Counsel for respondent contend with seeming confidence that such an answer presents no issue to be tried. This is based upon the theory that in this class of cases the only course for a defendant to take is to set up affirmatively his adverse claim to the land, or disclaim. They cite in support of this position Tompkins v. Sprout, 55 Cal. 31; People v. Center, 66 Cal. 551, 5 Pac. Rep. 263, 6 Pac. Rep. 481. These cases do not support the position taken by respondent. They simply hold that, in order to maintain his defense on the ground of an adverse claim, a defendant must set up such claim, and that tlie owner In possession may require the nature and cliaracter of the adverse estate or interest to be produced, exposed, and judicially determined. Mech. Lienj — 41 § 715 mechanics' liens. 642 In another case it was said: "The denial in the answer of the allegation in the complaint, that the interests or claims of the defendants answering were subordinate and subject to the liens of the plaintiffs, did not cast upon them the burden of proving that allegation. If the defendants, in their answer to that allegation, had stated facts which showed that their claim was not subordinate or subject to the liens of the plaintiffs, they would have had the affirmative of the issue. And it was their ' business, when thus called upon, to disclose ' the nature of their claim. By not doing so, they certainly occupy no better position than they would if they had done so. Conceding that the denial of the defendants raised an issue, we think it was one of which they had the affirmative, and as they introduced no evidence to support it, the court was justified in finding that their lien was subordinate and subject to the plaintiffs'." ^°* Wliere the only interest sought by the plaintiff to be charged with the lien is the interest of the employer in the premises held under a contract of sale, and the allegation is that the person holding the legal title has or claims some interest in the premises, it must be construed as an averment of the interest in the title held by the vendee, and not of a title prior or superior to that of the vendee, as the plaintiff's lien did not affect the title held by the owner, and as the title was not a proper subject of litigation in the action to foreclose the lien against the interest of the vendee, and not to ascertain or determine the respective rights or interests of the vendee and owner as against each other.^°^ But the basis of his right to require the adverse interest to be pro- duced and adjudicated is his own interest in or ownership of the land. This is the one thing necessary for him to prove, in order to make out his case. If it is denied, a material issue is raised, which casts upon him the burden of proving such interest or ownership. Until he does this, the defendant is not called upon to produce or prove his 3laim. Therefore the general denial put in issue a fact necessary to the plaintiff's recovery, and the demurrer to it was improperly sustained." See Harmon v. Ashmead, 68 Cal. 321, 323, 9 Pac. Rep. 183. See "Burden of Proof," §§ 785 et seq., post. iM Harmon v. Ashmead, 68 Cal, 321, 323, 9 Pac. Rep. 183; citing Anthony v. Nye, 30 Cal. 401. 105 worden v. Hammond, 37 Cal. 61, 65 (1862). See Sichler v. Look, 93 Cal. 600, 608, 29 Pac. Rep. 220. AVashington. And so a complaint for foreclosure which makes the assignee of the estate of the purchaser of the materials a party, and. 643 COMPL.UNT. §§716,717 § 716. Same. Alleging no other claim upon fund. It is not necessary for plaintiff to allege that no one else has a claim upon the fund in the hands of the owner of the building. If any other party also claims the same fund, it will be determined wdien set up in some proper manner. Without its being so set up, the court should not presume that it exists, nor is the court bound upon mere demurrer to the complaint to act upon any theory that there may possibly be any such claim."" § 717. Description of property."^ Speaking of this sub- ject, the court has said: "In an action to foreclose the lien, it is, however, necessary that the property which the plaintiff seeks to subject to a sale therefor should be definitely described, and that the judgment should specifi- cally designate the property affected by the lien and directed to be sold, otherwise the officer executing the judgment can neither point out the property which he offers for sale, nor place the purchaser in possession thereof, and the deed which he may execute will not convey any title ; and as the judgment must follow the complaint, it is essential that the complaint should itself contain such specific description. In the complaint of the Los Angeles Planing Mill Company it is alleged that the building is ' upon that certain lot or parcel of land situate in the city and county of Los Angeles, state of California, at the northwest corner of Eighth and Hope streets.' A conveyance in which that was the only de- scription would be void for uncertainty. In the complaints of the other plaintiffs the lot is described as ' lot six (6) in without describing him as assignee, merely alleges that he has some Interest in the premises, must be interpreted as directed against such party's interest in his personal capacity, and not as assignee: Quinby V. Slipper, 7 Wasli. 475, 35 Pac. Rep. 116, 38 Am. St. Rep. 899. Alleviation that rfefeiulant lia.s or olaliiiH to have a lien, inserted only for the purpose of having court determine priority between plaintiff and defendant lienors, without service of sufficient cross-complaint: See Powell v. Nolan, 27 Wash. 318, 67 Pac. Rep. 712, 717. "« Los Angeles P. B. Co. v. Los Angeles P. B. & D. Co., 2 Cal. App. 303, 305, 83 Pac. Rep. 292. "' See "Object of Labor," §§ 166 et seq., ante; "Description of Prop- erty," §§399 et seq., ante; "Claim," §§706 et seq., ante; "Extent of Lien," §§438 et seq., ante; "Decree,'' §§903 et seq., post. Owner in posses-sion of premises, and alleged to have personal knowledge of the work, not misled by description in complaint and Claim of lien: See Bryan v. Abbott. 131 Cal. 222, 224, 63 Pac. Rep. 363. § 718 mechanics' liexs. G14 block twenty-eight (28), of the Hnber tract, in said city,' one of said complaints stating that said lot is ' situate at the corner of Hope and Eighth streets, in said city,' and the other that it is at the northeast corner of said streets. The court, however, found that the building is upon the lot, in said city, ' on the northeast corner of Eighth and Hope streets, said lot being more particularly described as lot 6, and the southerly ten feet of lot 7, block 28, of the Huber tract.' In its decree, it, however, directs that only that part of the building which is upon lot 6 shall be sold. . . . The statute "^ provides that ' the land upon which any building ... is constructed, together with a convenient space about the same, or so much as may be required for the convenient use and occupation thereof, to be determined by the court on rendering judgment,' is also subject to the lien. The amount of land thus to be made subject to the lien is an issuable fact,^°^ and can be determined by the court only when such issue is presented by the pleadings. The land upon which the building is constructed is necessarily subject to the lien, to the extent of the owner's interest therein, but if the plaintiff would claim that more than that is required for the convenient use and occupation of the building, and have the same sold in satisfaction of his lien, he must make appropriate averments therefor. Although the finding of the court that the southerly ten feet of lot 7 and the northerly thirty-nine feet of lot 6 are required for the convenient use and occupation of said building was in accordance with evi- dence introduced therefor, neither of the complaints made any such averment, and before making such finding, the court should have directed the complaints to be amended there- for." "^ § 718. Same. Land for convenient use and occupation. It was said by the court: "In Green v. Chandler,' '' — the case upon which appellants rely, — it appeared that the los Kerr's Cyc. Code Civ. Proc., § 1185. i»» Citing Green v. Chandler. 54 Cal. 626. "» WMUamette S. M. Co. v. Kremer, 94 Cal. 205, 210, 29 Pac. Rep. 633. Montunu. See Helena L. Co. v. Montana Cent. R. Co., 10 Mont. 81, 24 Pac. Rep. 702. 1" 54 Cal. 626. 645 COMPLAINT. § 718 structure in controversy was built upon a tract of land con- taining something over eight acres. The court found that the whole of said parcel with its appurtenances was re- quired for the convenient use and occupation of the mill, etc. It was held on appeal that this finding was not within any of the issues made by the complaint and answer, and that there was no evidence upon which the court could determine that the whole or any particular part of the land was necessary for the use and occupation of the structure. It was apparent to the court in that case that the court beloAv had decreed the sale of a larger tract of land than that actually occupied by the building upon which the lien was filed; and as there was no allegation, either in the complaint or in the answer, that all of the land was neces- sary- for the convenient use and occupation of the building, the court held that the finding, being outside of any issue, did not warrant the judgment. In Sidliuger v. Kerkow,^^- it did not appear that the plaintiff was claiming any more land than that occupied by the building, and we held that the failure of the court to define the exact amount or extent of the land necessary' for the convenient use of the structure did not invalidate tiie decree that the purchaser would acquire only the land covered by the building. The land actually occupied by the building is necessarily subject to the lien, and it is only where the plaintiff claims that more than that is required for its use and occupation, that he must make averments therefor.^^' There is nothing in the record in this case to show that the land described in the decree is greater in extent than that covered by the building. We have to assume that it is not. Every presumption must be indulged in favor of the judgment." "* "2 82 Cal. 42, 22 Pac. Rep. 932. "■' Citing W^inamette S. M. Co. v. Kremer, 94 Cal. 205, 29 Pac. Rep. 633. '" Sachse v. Aul)urn. 95 Cal. 650, 651, 30 Pac. Rep. 800. See Tibbetts V. Moore. 23 Cal. 208, 213. Colorado. Not necessary to aver that tlie land described is neces- sary for the convenient use and occupation of the building: See Seely V. Xeill, 37 Colo. 198, 86 Pac. Rep. 334. \ew Mexico. See Ford v. Springer T^. Assoc, 8 N. M. 37, 41 Pac. Rep. 541, citing Green v. Chandler, 54 Cal. 626. §§719,720 mechanics' LIENS. 646 § 719. Same. Description of whole or part of building. And in another case it was said : " In direct line with the claim made by the lien follows the allegation of the com- plaint, as follows : ' That on or about the twenty-fifth day of October, 1889, the defendant, T. J. Ludwig, entered into a contract with the defendants, A. Marks and B. Marks, whereby the said Ludwig agreed to provide all materials, and add to and change into a two-story brick building the one-story brick building then upon the premises above described' (referring to the entire lot). This allegation of the complaint is not denied, and therefore no issue is made by the pleading as to whether or not the claim of lien covers an entire building or only a part thereof. Such being the fact, appellant was not authorized to introduce evidence against his own admission. The findings of the court also fully support the allegations of the complaint in this regard, and the judgment follows the findings. Hence the difficul- ties that arose in the Willamette case ^^^ are not present here." ''*" § 720. Same. Description in claim of lien referred to. In an action to foreclose a lien, where the claim of lien contains an accurate description of the lot, " together with the building thereon," upon which the lien is claimed, a reference may be had to the same to obviate uncertainty in other directions; and where it is averred in the complaint that a claim of lien contains a description of the property sufficient for identification, and this allegation is borne out by an inspection of the claim referred to, the complaint is sufficient, so far as the description is concerned.^^' Plaintiff may disregard lack of precision in his notice, and may enlarge the description in his complaint in foreclosure in such manner that the judgment will distinctly specify the land which is to be sold.^^® "5 Willamette S. M. Co. v. Kremer, 94 Cal. 205, 210, 29 Pac. Rep. 633. "6 Brunner v. Marks, 98 Cal. 374, 376, 33 Pac. Rep. 265. "' Newell V. Brill, 2 Ca,l. App. 61, 64, 83 Pac. Rep. 76. "s Union L. Co. v. Simon (Cal. App., March 13, 1906), 89 Pac Rep. 1077, 1081. 647 COMPLAINT, § 721 § 721. Damages. In an action for damages for breach of the contract, there need be no allegation of demand for the damages. ^^^ Attorneys' fees. And no allegation need be inserted in the complaint for the foreclosure of a lien on the property relative to the claim of plaintiff for attorneys' fees, -where they are properly allowed by the statute ; and an allegation on that subject, if made, does not bind even the party making it.^-° "» Bryson v. McCone, 121 Cal. 153, 53 Pac. Rep. 637, 639. Attorne}-.s' fees paid out recoverable as dainag;es. Wliere the bond of a contractor provides for the cancelation and release of the build- ing, by the contractor, within thirty-five days after the completion, from all liens that might accrue against the same, and to save the owner harmless from all damages therefrom, in an action by the owner to recover on the bond, where there has been a breach by the contractor, fees paid by the owner to an attorney to defend lien suits are damages proximately caused by the breach of the agreement to deliver the building free from such liens: Klokke v. Raphael, 6 Cal. App. Dec. 508, 96 Pac. Rep. 392. Complaint held to state a good cause of action on general demurrer, and to allege sufficiently payment of such fees, in the absence of a demurrer on that specific ground: Klokke v. Raphael, supra. Costs recoverable as damages. No claim, in complaint for money expended as costs in such suit, but only for attorneys' fees, the amount of such costs was improperly included in verdict: Klokke v. Raphael, supra. Pleading damages under contract for liquidated damages: See Long Beacli School Dlst. v. Dodge, 135 Cal. 401, 405, 67 Pac. Rep. 499. Alleging damages: Bryant v. Broadwell, 140 Cal. 490, 494, 74 Pac. Rep. 33. Alleging prospective profits: See McConnell v. Corona City W. Co., 149 Cal. 60, 65, 85 Pac. Rep. 929. Bringing action sufliicient demand: See Sims v. Petaluma G. Co. (Cal., Sept. 18, 1900), 62 Pac. Rep. 300, s. c. 131 Cal. 656, 63 Pac. Rep. 1011. VVasIiington. Demand unnecessary; complaint; clearing land: See Stringham v. Davis, 23 Wash. 568, 63 Pac. Rep. 230. '-" Clancy v. Plover, 107 Cal. 272, 274, 40 Pac. Rep. 394; Mulcahy v. Buckley, 100 Cal. 484, 490, 35 Pac. Rep. 144; Pacific Mut. L. Ins. Co. v. Fisher, 106 Cal. 224, 234, 39 Pac. Rep. 758. But see Skym v. Weske Cons. Co. (Cal., Dec. 18, 1896), 47 Pac. Rep. 116. See §§ 935 et seq., post; and see unconstitutional clause as to at- torneys' fees, § 40, ante. No allegation a.-* to attorneys' fees necessary; See Ah Louis v. Harwood, 140 Cal. 500, 507, 74 Pac. Rep. 4 1. Colorado. Attorneys' fees recoverable without allegation: See Eagle G. M. Co. v. Bryarly, 28 Colo. 262, 65 Pac. Rep. 52, 54. New Mexico. Allegation of amount of attorneys' fees in complaint unnecessary: See Armijo v. Mountain E. Co., 11 N. M. 235, 67 Pac. Rep. 726. Washington. It seems that if sucli allegation is inserted, it should not be stricken out: Griffith v. Maxwell, 20 Wash. 403, 55 Pac. Rep. 571. §§722-724 mechanics' liens. 648 § 722. Verification of complaint. The law does not re- quire the complaint for the foreclosure of mechanics' liens to be verified, as it is not one of the cases enumerated in the code, requiring verification, and hence the sufficiency of the verification thereto is immaterial upon a default judgment.^^^ § 723. Joinder of causes of action in complaint.^- Except as otherwise provided in the chapter on mechanics' liens on real property, the general principles laid down in the code are applicable to this subject of joinder. ^-^ Several mining claims. Section eleven hundred and ninety-five ^-* provides : " Any number of persons claiming liens may join in the same action." In connection with this matter, the court has said: Section eleven hundred and ninety-five of the Code of Civil Procedure, in reference to joinder, " does not say whether the lien must be all upon the same property, or simply against the same person. We incline to the former construction. . . . Taking the several [mining] claims to constitute one piece of property for the purposes of the mechanic's-lien law, we think there was no misjoinder of causes of action." " If several placer mining claims are adjoining each other and are owned by one company and worked as one mine, the liens of different persons upon different portions of the property may be joined in the same action, the counts being separately stated." 125 § 724. Same. Designating causes of action separately. And where there are several different liens united in the complaint, which may be done under section eleven hundred «» Parke & L.. Co. v. Inter Nos O. & D. Co., 147 Cal. 490, 493, 82 Pac. Rep. 51. Compare: "Verification of Claim," §410, ante. Oregon. Verification by attorney: Willamette Falls Co. v. Riley, 1 Oreg. 183. '- See, generally, "Plaintiffs," §§ 659 et seq., ante. "3 Kerr's Cyc. Code Civ. Proc, §§ 427, 1198, and notes. See Remy v. Olds, 88 Cal. 537, 26 Pac. Rep. 355. "* Kerr's Cyc. Code Civ. l»roc., § 1195. «5 Malone v. Big Flat G. M. Co., 76 Cal. 578, 582, 18 Pac. Rep. 772; Curnow v. Happy Valley B. G. Co., 68 Cal. 262, 266, 9 Pac. Rep. 149. See Hooper v. Flood, 54 Cal. 218, 219. 649 COMPLAINT. §§ 725, 726 and ninety-five of the Code of Civil Procedure, there is a sufficiently separate statement of each cause of action, where there is a distinct statement of the facts as to each lien, and there is no necessity that they should be numbered, or otherwise formally designated/-® § 725. Same. Reference from one cause of action to another. Where the plaintiff is also the assignee of a number of other lien claims, he need not allege in full the cause of action upon each lien in a separate count; and if the first count is plainly divided into distinct paragraphs, accurately designated by Roman numerals, from I to X, the first paragraph containing certain necessary averments as to the land, and the subsequent counts commencing by referring to said paragraph I, and expressly making said paragraph a part of each subsequent cause of action as if incorporated therein, the judgment should not be reversed because para- graph I was not written in full in each of the other counts; the court saying, " Such pleading may be slovenly, but it is not bad enough to upset a judgment." ^-' § 726. Same. Actions that may be united in one com- plaint. It is proper to unite a cause of action against the contractor with a foreclosure suit against the owner, in order to prevent a multiplicity of suits.^-^ The complaint "< Booth V. Pendola, 88 Cal. 36, 42, 23 Pac. Rep. 200, 25 Pac. Rep. 1101, 24 Pac. Rep. 714. '" Green v. Clifford, 94 Cal. 49, 52, 29 Pac. Rep. 331. See Reading v. Reading-, 96 Cal. 4. 6, 30 Pac. Rep. 803. Colorado. A general averment as to service of notice and filing statement may be made at the beginning or end of the complaint, without inserting it in each cause of action united in the complaint: Rialto M. & M. Co. v. Lowell, 23 Colo. 253, 47 Pac. Rep. 263. "^ Giant P. Co. v. San Diego F. Co., 78 Cal. 193, 198, 20 Pac. Rep. 419. See Cox v. W'estern Pac. R. Co., ^7 Cal. 87, 90. See "Parties," §§659 et seq., ante. Montana. And a personal judgment and foreclosure of the lien against a part-owner may in like manner he joined: Davis v. Alvord, 94 IT. S. 545, bk. 24 L. ed. 283; and .'see .^Ivord v. Hendrie, 2 Mont. US- Davis V. Bilsland. 85 U. S. (18 Wall.) 659. bk. 21 L. ed. 969. New Mexico. Contra, as two causes of action, one at law, the other In equity, cannot properly be joined: Finane v. Las Vegas H Co 3 N. M. 256, 5 Pac. Rep. 725. AVaNliinKton. Stot.^on & P. M. Co. v. iMcDonald. 5 Wash. 496. ?,2 Pac. Rep. 108. Provided by Balllnger's Ann. Laws, §5911; but previously § 727 mechanics' liens. 650 of a subclaimant is not demurrable for uniting two causes of action; one for work and material . furnished as a sub- contractor at the request of the contractor, and one for the same at the request of the owner.^^^ But an action to enforce a lien on the property, or an action for a personal judgment against the owner, for the value of materials furnished may not be joined with an action against the owner as grantee to set aside a conveyance on the ground of fraud on creditors.^^° § 727. Same. Objections, how raised. The objection as to misjoinder, however, is waived, unless specially taken by demurrer or answer.^^^ Objection that causes of action are not separately stated is to be made by motion, and not by demurrer for misjoinder.^'^ contra: Eisenbels v. Wakeman, 3 Wash. 534, 28 Pac. Rep. 923. See Hildebrandt v. Savage, 4 Wash. 524, 30 Pac. Rep. 643, 32 Pac. Rep. 109, and dissenting- opinion, Tacoma L. & Mfg. Co. v. Wolff, 7 Wash. 478, 35 Pac. Rep. 115, 755. See " Decree," §§ 903 et seq., post. '=» Quale V. Moon, 48 Cal. 478, 482; Giant Powder Co. v. San Diego F. Co., 78 Cal. 193, 199, 20 Pac. Rep. 419; Wood v. Oakland & B. T. Co., 107 Cal. 500, 502, 40 Pac. Rep. 806. Colorado. Joinder of cause of action by vendor of goods with action on assigned claim: See Sickman v. Wollett, 31 Colo. 58, 71 Pac. Rep. 1107, 1108. 13" Macondray v. Simmons, 1 Cal. 393, 395. Objection must be taken by ans^rer or demurrer to the misjoinder, or it is waived: Macondray v. Simmons, supra. See Weimer v. Smith, 4 Utah 238, 245, 9 Pac. Rep. 293. 12' Macondray v. Simmons, 1 Cal. 393, 395; Cox v. Western Pac. R. Co., 47 Cal. 87, 90. Oklahoma. See El Reno E. Co. v. Jennison, 5 Okl. 774, 50 Pac. Rep. 144 (joinder of cause on express contract and on quantum meruit for articles not provided for in tlie express contract). '"- Cause of action to foreclose a lien against owner, and action to recover personal judgment against grantee of the owner, who had assumed tlie debt and agreed to pay it: San Francisco P. Co. v. Fair- field, 134 Cal. 220, 226, 66 Pac. Rep. 255. AVashingrton. Motion to have causes of action stated separately against same property, improper; motion to make more definite and certain, proper: See Fitch v. Applegate, 24 W'ash. 25, 64 Pac. Rep. 147. 651 DEMURRER. § "J^SS CHAPTER XXXVI. DEMURRER. § 728. Demurrer. Generally. § 729. General demurrer. § 730. Same. Filing claim of lien. Time of completion of build- ing. § 731. Same. Cessation from work. § 732. Same. Claim of lien not setting forth plans and specifica- tions. § 733. Same. Variance between claim as exhibit and body of com- plaint. § 734. Special demurrer. Misjoinder of parties. § 735. Same. Ambiguity and uncertainty. Conflict between claim as exhibit and body of complaint. § 736. Same. Conflict. Bond as exhibit and allegations of com- plaint. § 737. Same. Conclusions of law. § 728. Demurrer.^ Generally. The general rules of law that are applicable to demurrers will not be considered in this chapter, and the plan of treatment elsewhere ^ outlined will not be repeated. ' ^ Alleging: for first time upon aiipeal, without special demurrer, failure to allege securing certificate of architect: See Wyman v. Hooker, 2 Cal. App. 36, 38, 83 Pac. Rep. 79. Demurrer admittinie: ownership: See Bryan v. Abbott, 131 Cal. 222, 224, 63 Pac. Rep. 363. W'aiver by failure to demur: See "Misjoinder," §§723 et seq., ante; " Prevention of Performance, Non-payment," §§ 679 et seq., ante. And see "Complaint. In General," §§670 et seq., ante; "Appeal," §§956 et seq., post. Demurrer to cross-complaint: See §§ 759 et seq., post. Oklalioma. Answer superseding demurrer filed on same day: See Ryndak v. Seawell, 13 Okl. 737, 76 Pac. Rep. 170. Failure to allege use of materials; defect waived: See Ryndak v. Seawell, 13 Okl. 737, 76 Pac. Rep. 170. Wa.shington. Demurrer to complaint alleging withdrawal of third party from work, but not alleging owner's knowledge or consent to such withdrawal: See Cochran v. Yoho, 34 Wash. 238, 75 Pac. Rep. 815. Wyomins- Harmless error in overruling demurrer as to plea of payment: See Davis v. Big Horn L. Co., 14 Wyo. 517. 85 Pac. Rep. 980. => See § 670, ante. §§ 729, 730 mechanics' liens. 652 § 729. General demurrer.^ It is a general rule that if the complaint states a cause of action, it is not subject to general demurrer because of an ineffectual attempt to state another cause of action in the same or another count.* Thus — Money judgment, and foreclosure of lien. A complaint Avhich alleges a sufficient cause of action for the recovery of money against the owner is not subject to demurrer on the ground that it does not state facts sufficient to consti- tute a cause of action against the owner, because of the fact of an ineffectual effort to state in the complaint a cause of action for the foreclosure of a lien to secure the same money. ^ § 730. Same. Filing claim of lien.'' Time of completion of building." Where the complaint is merely uncertain, a general demurrer will not lie. Thus if the complaint to foreclose a subclaimant's lien upon the property alleges that the structure was completed " on or about " a date mentioned, it is not so indefinite and uncertain as to ren- der the complaint defective as against general demurrer, especially where it is further alleged that the claim of lien was filed " within thirty days after the completion of the building and structure." ^ ^ Oklahoma. Failure to aUege attorney's fee not reached by gen- eral demurrer: See Savage v. Dinkier, 12 Okl. 463, 72 Pac. Rep. 366. Washington. Failure to allege incorporation of defendant, not to be raised by general demurrer: See Sly v. Palo Alto G. M. Co., 28 Wash. 485, 68 Pac. Rep. 871. * One count stating; good cause o£ action, demurrer to second cause not considered on appeal: See Macomber v. Bigelow, 126 Cal. 9, 12, 58 Pac. Rep. 312. General demurrer to be overruled «hen complaint good as to all but one payment, in suit to recover balance: Knowles v. Baldwin, 125 Cal. 224, 226, 227, 57 Pac. Rep. 988. s Cox V. Western Pac. R. Co., 47 Cal. 87, 90. See " .Joinder," §§ 723 et seq., ante. * See §§ 416 et seq., ante. Washington. See Lee v. Kimball (Wash., March 12, 1907), 88 Pac. Rep. 1121. ' See §§ 334 et seq., ante. » W"ood V. Oakland and Berkeley R. T. Co., 107 Cal. 500, 503, 40 Pac Rep. 806. See " Complaint," §§ 677, 706 et s£q., ante. 653 DEMURRER. §§ 731-733 § 731. Same. Cessation from work.*" Where, in an action to foreclose a material-man's lien, the complaint averred that the structures were in an unfinished condition, that work ceased thereon " on or about the first day of April, 1894, and has not been resumed," and that plaintiff's claim of lien was filed and recorded ]May 8, 1894, while a cessa- tion of work on April 9th might be within the meaning of the phrase " on or about the first day of April," 3'et the allegation as to the time of cessation is uncertain, and subject only to a special demurrer on that ground, and, in the absence of such demurrer, the plaintiif may prove that the work ceased on the first day of April, 1894, and the complaint is sufficiently certain as to the continuous duration of the cessation of the work for more than thirty days before the filing for record of the claim of lien, and that it was filed within thirty days after the constructive completion of the buildings.^" § 732. Same. Claim of lien not setting forth plans and specifications. A subcontractor's complaint which avers that the claim of lien stated that he entered into a contract under which he was to do all the painting, staining, varnishing, and tinting, all necessary materials to be furnished by him, " as specified in the plans and specifications " of the build- ings, is sufficient, at least where a general demurrer is inter- posed, and against the objection that the claim does not set forth the plans and specifications of the original con- tract in regard to the painting.^^ § 733. Same. "Variance between claim as exhibit and body of complaint.^- Where the complaint avers that the plaintiff was to be paid a certain sum for work only, Avhile his claim of lien, set forth in the complaint, showed that » See §§ 354 et seq., ante. " San Joaquin L. Co. v. Welton, 115 Cal. 1, 5, 46 Pac. Rep. 735, 1057. " Slight V. Patton, 96 Cal. 384, 387, 31 Pac. Rep. 248; but it wa.s said that it was not necessary to determine whether a special demurrer on this ground should have been sustained. " See §§ 711 et seq., ante. §§734,735 mechanics' LIENS. 654 he was to be paid such sum for work and materials furnished, a general demurrer should be sustained.^^ § 734. Special demurrer. Misjoinder of parties." A de- murrer lies for misjoinder of parties, where a mere agent is joined with the owner in an action to foreclose, and an error of the court in failing to overrule such demurrer is not cured b.y a subsequent finding of the court that the materials were furnished to the person as a contractor, and not as a mere agent. ^^ § 735. Same. Ambiguity and uncertainty. Conflict be- tween claim as exhibit and body of complaint." Where, in an action to enforce a lien on the property, some of the allegations of the complaint are inconsistent with the state- ments contained in the claim of lien, a copy of which is attached to and made a part of the complaint, a demurrer for ambiguity and uncertainty should be sustained.^^ " Wagner v. Hansen, 103 Cal. 104, 106, 37 Pac. Rep. 195. See "Variances," §§835 et seq., post. " See §§ 659 et seq., and §§ 723 et seq., ante. ^ Hooper v. Flood, 54 Cal. 218, 220. See "Owner," §§687 et seq., ante. NevF Mexico. " It is a well-settled rule of equity pleading, that a misjoinder of parties as defendants can be taken advantage of only by the parties improperly joined, or, at most, by such parties as may be injuriously affected by such misjoinder." And where parties demur for misjoinder, and subsequently obtain a dismissal of the bill as to parties misjoined, they are not in a position to complain: Post v. Miles, 7 N. M. 317, 34 Pac. Rep. 586. Misjoinder not aflfecting objecting party; See Armijo v. Mountain E. Co.. 11 N. M. 235, 67 Pac. Rep. 726, 729. Oregon. Waiver of misjoinder by failure to demur or answer: Os- born V. Logus, 28 Oreg. 302, 38 Pac. Rep. 190, 42 Id. 997. '« See §§ 711, 713, ante. " Prazer v. Barlow, 63 Cal. 71, 72; Palmer v. Lavigne, 104 Cal. 30, 33. 37 Pac. Rep. 775; Malone v. Big Flat G. M. Co., 76 Cal. 578, 581, 18 Pac. Rep. 772; T\^agner v. Hansen, 103 Cal. 104, 106, 37 Pac. Rep. 195. See Blasingame v. Home Ins. Co., 75 Cal. 633. 637, 17 Pac. Rep. 925. Uncertainty in tlie complaint waived by absence of objection in lower court; Parke & L. Co. v. Inter Nos O. & D. Co., 147 Cal. 490, 493, 82 Pac. Rep. 51. Contract alleged to be made "with the said defendants," thereupon naming one defendant, held good against special demurrer: See Georges v. Kessler. 131 Cal. 183. 185. 63 Pac. Rep. 466. Demurrer for ambiguity; husband and wife parties to contract: See Georges v. Kessler, 131 Cal. 183, 185, 63 Pac. Rep. 466. 655 DEMURRER. §§ 736, 737 § 736. Same. Conflict. Bond as exhibit and allegations of complaint. 1* Where, iu an action on a contractor's bond, the complaint averred that the principals executed the bond, and the copy of the bond attached and made part of the complaint shows that it was not signed by the principals, the complaint is subject to a special demurrer on the ground of ambiguity.^* § 737. Same. Conclusions of law. Where point is made against a subclaimant's complaint that there is no averment as to what was the contract price between the owner and contractors, or that there was any express agreement to pay anything, or as to what was the reasonable value of the work to be done, or anything to show that any sum ever became due under the original contract, and that the al- legation that there was due and owing an amount in excess of the contract price was a statement of conclusions of law, it should be tested by demurrer, and, of course, if so tested, would be held insufficient,-" Demurrer for uncertainty; action on contractor's bond; defects not accurately stated; bUl of particulars proper: See Long Branch School Dist. V. Dodge, 135 Cal. 401, 407, 67 Pac. Rep. 499. Colorado. Uncertainty waived by general demurrer: See Gutshall V. Kornaley (Colo., Dec. 3, 1906), 88 Pac. Rep. 158. AVashington. Incorporating in subsequent causes of action para- graphs of previous cause of action, not reached on demurrer: See Sly V. Palo Alto G. M. Co.. 28 Wash. 485, 68 Pac. Rep. 871. " See § 735, ante. " Kurtz V. Forquer, 94 Cal. 91, 94, 29 Pac. Rep. 413 (dictum). Variance immaterial after trial on merit.s, where defendants not prejudiced thereby: Kurtz v. Forquer, .supra, p. 95. See Rainsford v. Massengale. 5 Wyo. 1, 9, 35 Pac. Rep. 774. Special demurrer tliat allegation of complaint is inconsistent witii exhibit attached, without stating in what respect, not regarded on appeal: See Georges v. Kessler, 131 Cal. 183, 185, 63 Pac. Rep. 466. 2" Russ L. & M. Co. v. Garrettson, 87 Cal. 589, 592, 25 Pac. Rep. 747. Ati to materials furnished, etpecial demurrer, see §§699 et seq., ante. § 738 mechanics' liens. " 656 CHAPTER XXXVn. ANSWER, AND OTHER PLEADINGS. § 738. Answer. In general. § 739. Same. General denial. § 740. Same. Denials of conclusions of law. § 741. Same. Negative pregnant. § 742. Same. Denials on information and belief. § 743. Same. Exception to rule. § 744. Same. Evasive denials. § 745. Same. Deficiencies of complaint cured by answer. § 746. Same. Special defenses. § 747. Same. Neglect of contractor to supply materials and pro- ceed with. work. § 748. Same. Abandonment. § 749. Same. Payments made by owner. § 750. Same. Void contract as defense. § 751. Same. Void contract no defense in personam. § 752. Same. Mechanic's lien as defense to mortgage foreclosure. § 753. Same. Counterclaim. Payments. § 754. Same. Judgment and costs in action against agent. § 755. Same. Orders paid. § 756. Same. Damages. § 757. Same. Future repairs. § 758. Same. Damages for delay. § 759. Cross-complaint. § 760. Same. Setting up mechanic's lien in mortgage foreclosure. § 761. Same. Damages. § 762. Same. Payments. § 763. Supplemental answer. Decree of foreclosure of mortgage. § 738. Answer.^ In general. Where defendants have no separate or special defense, it seems that they may join in a common answer.^ 1 Supplemental ansvrer; See § 763, post. 2 ^\ estern L. Co. v. Phillips, 94 Cal. 54, 56, 29 Pac. Rep. 328 (minor defendants). Allegation o£ amount due, admitted by ansiver, conclusive; and finding to contrarj- disregarded: Gamache v. South School Dist., 133 Cal. 145, 148, 65 Pac. Rep. 301. Montana. Allegations,' once denied, need not be denied again, although several times averred in complaint: Boucher v. Powers, 29 Mont. 342, 74 Pac. Rep. 942. 657 ANSWER, AND OTHER PLEADINGS. §§ 739-741 § 739. Same. General denial. Under the familiar rule often laid down and illustrated, a general denial puts in issue onl}^ issuable facts. Thus where the plaintiff avers that the defendant has or claims some interest in the land, and that the same is subject to plaintiff's lien, this allegation being wholly immaterial, except in so far as it shows that he is a necessary party to the action, the general denial puts in issue only the fact that it is subject to the plaintiff's lien.^ A breach of the original contract cannot be shown under a general denial.* § 740. Same. Denials of conclusions of law. Denials of mere conclusions of law alleged in the complaint are insufficient. Thus the denial that the plaintiff has a lien,^ or that a claimant was entitled to a lien," or that the plaintiff has complied with the requirements of the pro- visions of chapter two, title four, part three, of the Code of Civil Procedure, relating to mechanics' liens," is insufficient. § 741. Same. Negative pregnant. A negative pregnant, under the familiar rule, should be avoided. Thus where the complaint avers that the plaintiff performed labor on a mine at the request of the'defendant, the answer, denying that the labor was performed at the request of the defendant, is not a denial that the work was performed on the mine.^ Assignment. Where the answer attempts to deny the assignment to and ownership of the claim in plaintiff, as Failure to deny payinent of liens alleged to be paid by owner under original contract: See Wagner v. St. Peter's Hospital, 32 Mont. 206, 79 Pac. Rep. 1054. 3 Elder v. Spinks, 53 Cal. 293, 294, But see "Pleading Priorities and Others Interests," §§ 715, 716, ante. * McGuire v. Quintana, 52 Cal. 427, 428. See Michalitschke Bros. & Co. V. Wells, Fargo & Co., 118 Cal. 683, 690, 50 Pac. Rep. 847. •'■ Bradbury v. Cronise, 46 Cal. 287, 289; Curnow v. Happy Valley B. G. & H. Co., 68 Cal. 262, 266, 9 Pac. Rep. 149. Montana. Merrigan v. English, 9 Mont. 113, 22 Pac. Rep. 454, 5 L. R. A. 837 (also, denial of indebtedness). • Brill V. De Turk, 130 Cal. 241, 244. 62 Pac. Rep. 462. ' Curnow v. Happy Valley B. G. & H. Co., 68 Cal. 262, 266 9 Pac Rep. 149. « Bradbury v. Cronise, 46 Cal. 287, 289. See Lingard v. Beta Tlieta Pi Assoc. (Cal., Feb. 2, 1899), 56 Pac. Rep. 58 (time of filing claim, and its sufficiency). Mech. Liens — 42 § 742 mechanics' liens. 658 alleged in the complaint, and such denial is pregnant with an admission of those facts, it is unnecessary to introduce any evidence on the subject of the assignment.® Amount due. So where the answer does not deny that a valid contract was entered into between the parties, and admitted that a certain sum was due, and also denies " that any sum was due from her to said B. on the sixth day of July, 1891, or at any other time, or at all, pursuant to said contract, or otherwise," it must be treated as a denial only that any sum of money was due under the contract.^" Value of labor. But a denial that the value of labor was not over a certain sum, less than that averred in the com- plaint, is a denial that its value was as averred in the complaint. ^^ § 742. Same. Denials on information and belief. The defendant is not at liberty to deny on information and belief,^- nor to answer an allegation alleging that he has no information or belief upon the subject sufficient to enable » Newell V. Brill, 2 Cal. App. 61, U, 83 Pac. Rep. 76. 10 Schmld V. Busch, 97 Cal. 184, 187, 31 Pac. Rep. 893. AVashington. So the denial of indebtedness in a certain sum claimed is an admission of a less sum: Rourk v. Miller, 3 Wash. 73, 27 Pac. Rep. 1029. " Way V. Oglesby, 45 Cal. 655. See Goddard v. Fulton, 21 Cal. 430, 436; Robinson v. Merrill, 87 Cal. 11, 14, 25 Pac. Rep. 162; Burris v. People's Ditch Co., 104 Cal. 248, 253, 37 Pac. Rep. 922. ^ Hagman v. Williams, 88 Cal. 146, 150, 25 Pac. Rep. 1111. Answer must be positive when matters presumptively witliin his knowledge: Curtis v. Richards, 9 Cal. 33, 37; Humphreys v. McCall, 9 Cal. 59, 62, 70 Am. Dec. 621; San Francisco Gas Co. v. San Francisco, 9 Cal. 453, 473; McCormick v. Bailey, 10 Cal. 230, 232; Ord v. Steamer Uncle Sam, 13 Cal. 369, 371; Brown v. Scott, 25 Cal. 189, 196; Davanay V. Eggenhoff, 43 Cal. 395, 397; Walker v. BufCandeau, 63 Cal. 312, 314; Loveland v. Garner, 74 Cal. 298, 300, 15 Pac. Rep. 844; Hagman v. Williams, 88 Cal. 146, 150, 25 Pac. Rep. 1111; Gribble v. Columbus B. Co., 100 Cal. 67, 75, 34 Pac. Rep. 527; Mulcahy v. Buckley, 100 Cal. 484, 489, 35 Pac. Rep. 144; Weill v. Crittenden, 139 Cal. 4S8, 490, 73 Pac. Rep. 238. See Hanna v. Barker, 6 Colo. 308; State ex rel. Milsted V. Butte City W. Co., 18 Mont. 199, 203, 44 Pac. Rep. 966, 56 Am. St. Rep. 575; Lay G. M. Co. v. Falls etc. Mfg. Co., 91 N. C. 75; In re Mills's Estate, 40 Oreg. 424, 433, 67 Pac. Rep. 107; Bartow v. Northern Assur. Co., 10 S. D. 132, 136, 72 N. W. Rep. 86; Thompson v. Sken, 14 Utah 209, 214, 46 Pac. Rep. 1103. See notes 70 Am. Dec. 629; 88 Am. Dec. 95; 97 Am. Dec. 231. Where matters not presumably '(vitliin Ivno^vledge of defendant, the rule is otherwise: See Vassault v. Austin, 32 Cal. 597, 607; Read V. Buffum, 79 Cal. 77, 21 Pac. Rep. 555, 12 Am. St. Rep. 131; Hagman v. Williams, 88 Cal. 146, 150; 25 Pac. Rep. 1111; Etchas v. Orena, 121 CaL 659 ANSWER, AND OTHER PLEADINGS. § 743 him to answer it, and placing his denial on that ground, if he ma}^ be presumed to know, or when he is aware, before answering, that he has the means of ascertaining, whether or not such allegation is true.^^ Recorded claim of lien. This is, for instance, the rule where it appears that the defendant knew before answering that he could certainly ascertain whether or not plaintiff had recorded his claim of lien, as alleged in the complaint, by examining a public record in the city and county in which his lots, upon which the lien in claimed, were situated.^* So an allegation of the complaint, in due form, that plaintiff filed and recorded his claim of lien in the office of the recorder of the county, " in words and figures following," and then setting forth a copy of his claim of lien, is not put in issue by a denial of the answer upon the ground that the defendant has no information or belief upon the subject sufficient to enable him to answer the same.^^ § 743. Same. Exception to rule. This rule, however, does not apply to a denial of the sufficiency of the recorded claim of lien in an action to foreclose a mechanic's lien, where the complaint alleges that the claim of lien was duly recorded, and states its contents substantially in the lan- guage of the statute; and if the recorded claim of lien is inartificially drawn, and not in the language of the com- plaint, a denial in the answer, upon information and belief, that the claim contains the necessary facts, is sufficient to raise an issue as to the alleged claim of lien/" 270, 53 Pac. Rep. 798; Oreg-onian etc. Co. v. Oregon etc. Co.. 10 Sawy. C. C. 468. 22 Fed. Rep. 247. Denial for want of information is bad as to matters presumably Within tlie defendant's knowledge: Curtis v. Richards, 9 Cal. 33, 38; Weill V. Crittenden, 139 Cal. 488, 490, 73 Pac. Kep. 238; Peacock v. United States, 125 Fed. Rep. 586. Montana. Denial of knowledge or information sufficient to form belief as to the existence of public records: See McEwen v. Montana P. & P. Co. (Mont., June 3, 1907), 90 Pac. Rep. 359, 360. " Mulcahy v. Buckley, 100 Cal. 484. 487, 35 Pac. Rep. 144. " Mulcahy v. Buckley, 100 Cal. 484, 487, 35 Pac. Rep. 144. WaHliin^ton. But, see contra: Cowie v. Ahrenstedt, 1 Wash. 416, 25 Pac. Rep. 458. " Mulcahy v. Buckley, 100 Cal. 484, 487, 35 Pac. Rep. 144. " Hagman v. Williams, 88 Cal. 146, 150, 25 Pac. Rep. 1111. §§ 74-1-746 mechanics' liens. 660 § 744. Same. Evasive denials. AVliere the complaint avers " that plaintiff performed work and. labor on the prop- erty as a miner," and the answer admits the ownership of the property in the defendant, and the employment of plaintiff by the defendant's superintendent, and the answer alleges that " defendant is not sufficiently informed to admit that the plaintiff performed work and labor as a miner upon the property of defendant, and therefore defendant denies said allegation," the words " as a miner " render the denial equivocal and evasive, and raise no issue as to the identity of the property upon which the work was done.^'- § 745. Same. Deficiencies of complaint cured by answer. Certain deficiencies of the complaint may be cured by allega- tions of the answer. Thus where the complaint in an action to foreclose a subclaimant's lien upon the property, under a valid contract, did not aver that any money was due to the contractor, but the answer presented that issue, under section five hundred and eighty,^^ the court may grant any relief consistent with the case made by the complaint and embraced within the issues.^* § 746. Same. Special defenses.-*^ Notice by the owner that he would not be responsible for the construction of the building, under section eleven hundred and ninety-two,-^ " Curnow v. Happy Valley B. G. & H. Co., 68 Cal. 262, 265, 9 Pac. Rep. 149. 's Kerr's Cyc. Code Civ. Proc, § 580, and note. " O'Donnel v. Kramer, 65 Cal. 353, 4 Pac. Rep. 204 (a certain amount was, however, actually found due). =» See "Rights of Owner," §§510 et seq., ante; "Obligations of Original Contractor," §§64 et seq., ante; "Material-man," §102, ante; "Laborers," §§ 117 et seq., ante; "Cumulative Remedies," §§ 638 et seq., ante; "Performance of the Contract," §§334 et seq., ante; "Com- plaint," §§ 670 et seq., ante. >evada. Lack of authority of alleged agent should be pleaded: Dickson v. Corbett, 11 Nev. 277. 21 Kerr's Cyc. Code Civ. Proc., § 1192. Answer alleging' credit given by laborer in a mine to person in possession under contract with owner to improve and develop, a suf- ficient defense: See Reese v. Bald Mt. Consol. G. M. Co., 133 Cal. 285, 290, 65 Pac. Rep. 578. Release from liability at -time of signing contract sufficient defense: See Rauer v. Fay, 128 Cal. 523, 525, 61 Pac. Rep. 90. 6G1 ANSWER, AND OTHER PLEADINGS. § 747 is a matter of defense, to be specially pleaded.-- So another action pending; -^ or a breach of a valid original contract; •* or the non-completion of the building according to the con- tract ; ^^ or the subcontracting for materials without the consent of the owner ; -•* or a defense that the plaintiffs, claimants, had guaranteed performance of the statutory original contract,-" — must be specially pleaded in the answer. § 747. Same. Neglect of contractor to supply materials and proceed with work. Where a valid uou-statutory origi- nal contract provided " that should said contractor refuse or neglect to supply a sufficiency of materials, the owner shall have power to provide materials and workmen after three daj's' notice in writing being given to finish the said work, and the expense will be deducted from the amount Colorado. Answer. Allegation that miner was unacquainted with and unused to mining- stricken out: See Ontario-Colorado G. M. Co. v. Mackenzie, 19 Colo. App. 29S, 74 Pac. Rep. 791. Striking out allegation o£ tender, repeated in same form in answer, not error: See Ontario-Colorado G. M. Co. v. Mackenzie, 19 Colo. App. 2bj, 74 Pac. Rep. 791. luiiiroper alle|i;ations in ansvi'er stricken out: See Ontario-Colorado G. M. Co. V. Mackenzie, 'l9 Colo. App. 29S, 74 Pac. Rep. 791. Oregon. Where a subclaimant, for a valuable consideration moving from tlie owner, waives liis lien, the answer may set up such waiver, instead of setting up matters which gave rise to it, by way of estoppel: Hughes v. Lansing, 34 Oreg. 118, 55 Pac. Rep. 95, 97, 75 Am. St. Rep. 574. AAyoming. Estoppel as to full amount due under partial statement furnislied: See Big Horn L. Co. v. Davis, 14 Wyo. 455, 85 Pac. Rep. 104S, 84 Id. 900. " West Coast L. Co. v. Newkirk, 80 Cal. 275, 277, 22 Pac. Rep. 231. =^- Griffith V. Happersberger, 86 Cal. 605, 612, 25 Pac. Rep. 137, 487. .Setting up action to foreclose prior mortgage: Bewick v. Muir, 83 Cal. 373, 23 Pac, Kep. 390, 2^ See Kelley v. Plover, 103 Cal. 35, 37, 36 Pac, Rep. 1020; Griffith v. Happersberger, 86 Cal. 605, 609, 25 Pac. Rep. 137, 487. =•'■ McGuire v. Quintana, 52 Cal. 427, 428. Colorado. Non-completion within contract time: Mclntyre v. Barnes, 4 Colo. 285. See Charles v. Hallack C. & Mfg. Co., 22 Colo. 283, 43 Pac. Rep. 548. I'tali. Damages in action by subclaimants to foreclose liens: Cul- mer v. Clift, 14 Utah 286, 47 Pac. Rep. 85. =»> Blethen v. Blake, 44 Cal. 117, 120, " Kelley v. Plover, 103 Cal. 35, 37, 36 Pac. Rep. 1020. See Bragg v. Shain, 49 Cal. 131, 132, See § 619, ante. §§ 748, 749 mechanics' liens. 662 of the contract," the answer of the owner to a subclaimant's complaint of foreclosure should show that the contractor, having neglected to supply a sufficiency of materials, was notified by the owner to proceed with the work in three days, or that he (the owner) would complete the house himself, if he seeks to take advantage of this clause of the contract.-^ § 748. Same. Abandonment. In the case stated in the preceding section, where the owner defends by showing the amount paid by him to the original contractor before the abandonment by such contractor of his work and contract, and the amount paid for completing the building, the answer must allege that the sum so paid by the owner to the contractor was_due.:vvhen the same^wasj^id ; that the aggregate of liens foreclosed exceeds the amount which was to be paid by the owner under the contract; and that the sums paid by him after the alleged abandonment were paid to complete the building according to the terms of the contract.^^ § 749. Same. Payments made by owner. Where the answer to a subclaimant's complaint shows that the ori- ginal contract was a non-statutory original contract, and that the payments were all made in accordance with the contract, and before notice of plaintiff's claim, the answer is sufficient.^" 2s Quale V. Moon, 48 Cal. 478, 482. Pleading conditions, generally: See § 676, ante. 29 Quale V. Moon, 48 Cal. 478, 482. See "Invalid Contract," §§319 et seq., ante; "Abandonment," §§358 et seq., ante; "Notice," §§547 et seq., ante; "Valid Contract," §§315 et seq.,' ante; "Lien as Limited by Contract," §§ 452 et seq., and §§ 315, 355, 559, ante. New Mexico. Where certain land was to be given as part payment, defendant must allege tender of a sufficient deed thereof: Ford v. Springer Land Assoc, 8 N. M. 37, 41 Pac. Rep. 541. Washington. Defendant must specially plead payment: Spokane Mfg. & L. Co. V. McChesney, 1 W'ash. 609, 612. 30 Kerckhoff-Cuzner M. & L. Co. v. Cummings, 86 Cal. 22, 26, 24 Pac. Rep. 814. See "Liability," §§547 et seq., ante; "Invalid Contract," §§319 et seq., ante; "Valid Contract," §§315 et seq.; ante. 663 AXSWER, AND OTHER PLEADINGS. §§ 750-752 § 750. Same. Void contract as defense. Where the statutory origiual contract is void, it has been held that it is not available as a defense for any purpose, either to de- termine the amount of the contract price or to limit the liability of the owner, or as the foundation of a right to complete the building according to its terms,'' ^ or for dam- ages for breach of the contract ; ^- but the limitations upon these rules have been already pointed out.'^^ Plans and specifications referred to in contract, but not filed. Where the answer sets out a statutory original eon- tract providing that the work should be done " conformable to the drawings and specifications made by C. E. S. and signed by the parties, within the time aforesaid," the aver- ment is insufficient, if it fails to show that the plans and specifications were filed.^* § 751. Same. Void contract no defense in personam. An allegation showing that the statutory original contract is void is no defense to an action in personam by the eon- tractor on the implied contract ; ^^ likewise an allegation that the implied contract was not recorded, or that the work and materials were done and furnished in pursuance of a statutory original contract which was not filed for record.^® § 752. Same. Mechanic's lien as defense to mortgage foreclosure. Where it is charged in tlie complaint for tbe " WiHamette S. M. Co. v. Los Angeles CoUege Co., 94 Cal. 229, 240, 29 Pac. Rep. 629. See cross-references in note 33, infra. ^^ Rebman v. San Gabriel Valley L. & W. Co., 9.5 Cal. 390, 395, 30 Pac. Rep. 564. See White v. Fresno Nat. Bank, 98 Cal. 166, 168, 32 Pac. Rep. 979. See cross-references in note 33, infra. ^•' See §§ 319 et seq., § 559, and §§ 543 et seq., ante. 3^ Holland v. Wilson, 76 Cal. 434, 436, 18 Pac. Rep. 412. And see White V. Fresno Nat. Bank, 98 Cal. 166, 168, 32 Pac. Rep. 979 (which says that the question arose on special demurrer). See "Filing Plans and Specifications," §§ 294 et seq., ante. =*= Rebman v. San Gabriel V. L. & W. Co., 95 Cal. 390, 395, 30 Pac. Rep. 564. But see §§ 319 et seq., §§ 543 et seq., and § 559, ante. ^ Rebman v. San Gabriel V. L. & W. Co., 95 Cal. 390, 395, 30 Pac Rep. 564. But see note preceding. §§753,754 mechanics' LIENS. 664 foreclosure of a mortgage that the defendants have or claim some interest in the mortgaged premises, the interest, if it be a mechanic's lien paramount to the mortgage, may be set out by way of answer.^' § 753. Same. Counterclaim. Payments. The owner may properly set out as a counterclaim, where his claimant seeks to enforce a lien, that the defendant, " to avoid threat- ened litigation," paid to plaintiffs, upon a certain day before the date of an alleged contract for materials, an amount of money in excess of what was then due plaintiffs for materials before that time furnished.'* Payment of lien claims. In an action by the original con- tractor in personam on the implied contract, the statutory original contract being void, the owner may set off the amount paid by him upon foreclosure of liens of material-men for materials furnished the contractor, including the amount allowed and paid for attorneys' fees and costs, as well as for principal and interest on the liens. ^'^ § 754. Same. Judgment and costs in action against agent. Where the complaint of the original contractor is in indebitatus assumpsit, the amount of a judgment and costs " Germania B. & L. Assoc, v. Wagner, 61 Cal. 349, 354. See §§ 715, 716, ante, and § 760, post. Oregon. It seems that a defendant may set up a lien upon the property in his answer: Title G. & T. Co. v. Wrenn, 35 Oreg. 62, 56 Pac. Rep. 271, 76 Am. St. Rep. 454. ^ Clark V. Taylor, 91 Cal. 552, 554, 27 Pac. Rep. 860 (probably de- cided under § 438, subd. 1, Code Civ. Proc). See the case explained in Griswold v. Pieratt, 110 Cal. 259, 266, 42 Pac. Rep. 820. Counterclaim: See §§ 515 et seq., ante. Payment o£ liens by owner; counterclaim: See Wilson v. Nugent, 125 Cal. 280, 282, 57 Pac. Rep. 1008. Montana. Reply to counterclaim denying knowledge or informa- tion sufficient to form belief: See McEwen v. Montana P. & P. Co. (Mont., June 3, 1907), 90 Pac. Rep. 359, 360. "» Covell V. ^Vashburn, 91 Cal. 560, 562, 27 Pac. Rep. 859. See Mar- chant V. Hayes, 117 Cal. 669, 672, 49 Pac. Rep. 840. See "Obligations of Owner," §§523 et seq,, ante; "Attorneys' Fees," §721, ante. Orei^on. In a suit by a subclaimant to foreclose his lien, it seems that the owner may set up against the contractor the excess of liens paid by him over the contract price: Cooper Mfg. Co. v. Delahunt, 36 Oreg. 402, 51 Pac. Rep. 649. 665 ANSWER, AND OTHER PLEADINGS. §§ 755-757 in another suit, brought by a subcontractor against the agent of the defendant for certain Avork under the original contract, cannot be deducted from the balance unpaid on the original contract, and cannot affect the amount recoverable by the contractor, when the latter was not a party to such suit.*" § 755. Same. Orders paid. Where the contractor lias given orders to the owner of the building in favor of ma- terial-men, who afterwards filed liens upon the property, and the owner, at the date of the orders, was indebted to the contractor in excess of that amount, and agreed to pay the orders, the liens should be offset, in a suit by the con- tractor against the owner, only for the amount due at the date of the orders, and not for the costs and expenses of the liens.^^ But where there is no promise to pay such orders, the rule is otherwise.*^ § 756. Same. Damages. And the damages sustained by the owner may be set off in the answer against a plaintiff who is a bondsman on the contractor's bond," as well as against the contractor himself.** § 757. Same. Future repairs. Where the answer of the employer, in an action by the contractor, sets up a counter- *> Griffith V. Happersberger, 86 Cal. 605, 614, 25 Pac. Rep. 137, 487. See "Agency," §§ 572 et seq., ante. " Coven V. Wasl)burn, 91 Cal. 560, 562, 27 Pac. Rep. H:>9. Setting: off lieu.s, oo. West Coast L,. Co. v. Newkirk, 80 Cal. 275, 280, 22 Pac. Rep. 231. « Bradbury v. Cronise, 46 Cal. 287, 288; Schmid v. Busch, 97 Cal. 184, 187, 31 Pac. Rep. 893: Brunner v. Marks. 98 Cal. 374, 376. 33 Pac. Rep. 265. See Eaton v. Rocca, 75 Cal. 93, 97, 16 Pac. Rep. 529; Goss v. Hel- bing, 77 Cal. 190, 191, 19 Pac. Rep. 277. ' Bradbury v. Cronise, 46 Cal. 287, 288. s De Camp L. Co. v. Tolhurst, 99 Cal. 631, 635, 34 Pac. Rep. 438. Idaho. See Lowe v. Turner, 1 Idaho 112. Utah. Evidence of conversations with president and manager of corporation as to wages: See Sandberg v. Victor G. & S. Min. Co., 24 Utah 1, 66 Pac. Rep. 360, 363. Evidence as to adjustment of wages: See Sandberg v. Victor G. & S. M. Co., 24 Utah 1, 66 Pac. Rep. 360, 365. » Hubbard v. Lee (Cal. App., Oct. 11, 1907), 92 Pac. Rep. 744. See § 546, ante. Admission as to correctness of survey: See Scanlan v. San Francisco & S. J. V. R. Co. (Cal., Dec. 23, 1898), 55 Pac. Rep. 694. " West Coast L. Co. v. Apfield, 86 Cal. 335, 342, 24 Pac. Rep. 993. See " Complaint," §§ 620 et secj., ante. Failure to object to evidence supporting findings in conflict with answer: See Schroeder v. Pissis, 12s Cal. 209, 212, 60 Pac. Rep. 758. Elvidenee lield insufficient: California I. C. Co. v. Bradbury, 138 Cal. 328, 71 Pac. Rep. 346. 617 (changes and extra work, excessive). Evidence held sufficient to support verdict or finding: Hale Bros. V. Milliken (Cal. App., May 3, 1907), 90 Pac. Rep. 365 (damages for delay in delivery). Colorado. Everett v. Hart, 20 Colo. App. 93, 77 Pac. Rep. 254 (declarations against Interest by lease-holder of mine). Oklahoma. See Harness v. McKee-Brown L. Co. (Okl., Feb. 13, 1907), 89 Pac. Rep. 1020 (construction and'use of lumber). Oregon. Cline v. Shell, 43 Oreg. 372, 73 Pac. Rep. 12 (reasonable value of goods; all goods charged). 673 EviDExxE. |§ 767-769 § 767. Attorneys' fees. No evidence need be produced or appear in the record as to the value of attorneys' fees, when properly allowed by the statute ; nor is the court bound by testimony toiicliing its value, though such evidence is admissible, and may properly be considered by the court, the only regulation being that it shall not abuse the dis- cretion committed to it by the statute. ^^ § 768. Description of property. Evidence may be re- ceived for the purpose of determining the sufficiency of the description of the property ; and such evidence will include the purpose for Avhich the description is required and the persons who are to be affected by it.^- Field-notes made by a surveyor, he not being present at the trial to testify to their correctness, and, no competent evidence of their correctness being given, may be excluded. ^^ § 769. Extent of land for convenient use and occupation. Under certain circumstances, elsewhere more fully con- sidered, evidence as to the extent of land necessary for the convenient use and occupation of the premises, upon proper allegations in the pleadings, should be given." ^Vashin];^on. Cochran v. Yoho, 34 Wash. 238, 75 Pac. Rep. 815 (forcibly ejecting- contractor from work); Huetter v. Redhead, 3] Wash. 320. 71 Pac. Rep. 1016 (amount due). See Beebe v. Redward. 3.5 Wash.' 615, 77 Pac. Rep. 1052 (extras); Lang v. Crescent C. Co. (Wash., Nov. 1. 1907), 87 Pac. Rep. 261 (satisfaction of superintendent): Knu'dson- Jacob Co. V. Brandt (Wash., Sept. 25, 1906), 87 Pac. Rep. 43 (amount charg-eable to structure; actual delivery of material); Lee v. Kimball (Wash., March 12, 1907), 88 Pac. Rep. 1121 (upon appeal; land neces.sary for well); Seattle L. Co. v. Sweeney (Wash., June 19. 1906), 85 Pac. Rep. 677 (use of materials in building). " Clancy v. Plover, 107 Cal. 272, 275, 40 Pac. Rep. 394. New Mexico. Value of attorneys' fees found without evidence: See Pearce v. Albright, 12 N. M. 202, 76 Pac. Rep. 286. '- Union L. Co. v. Simon (Cal. App., March 13, 1906). 89 Pac Rep 1077, 1079. See §§ 399 et seq., ante; but see S 7G8, post. Oregon. Evidence as to property involved, there being no issue in the pleadings; certified copies of mining journals: See Lewis v. Eeeman, 46 Oreg. 311, 80 Pac. Rep. 417. " Scanlan v. San Francisco & S. J. V. R. Co., 128 Cal. 586, 588 61 Pac Rep. 271. " Green v. Chandler. 54 Cal. 626, 627: Willamette S. M. Co. v. Kremer. 94 Cal. 205, 211. 29 Pac. Rep. 633. See "Extent of Lien." §§ 438 et seq., ante; "Pleading," §§ 710, 717 et seq.. ante. Mech. Liens — 4 3 mechanics' liens. 674 § 770. Books of account. Testimony introduced by the plaintiff to show the mode in which the plaintiff's books of account were kept, and that they were correct, is properly admitted in evidence, in an action to foreclose the lien of a material-man.^^ § 771. Claimant as witness against estate. The claimant of a mechanic's lien against a building erected by a deceased person is a competent witness to testify to facts occurring before the death of the owner, in an action to foreclose the lien, against the representative of his estate. ^"^ § 772. Fixtures. Intention of parties. Evidence of a tenant's intention in reference to the future removal of a building erected by him upon leased premises is inadmissible in an action to foreclose the lien of a material-man upon the land and building. Although, as between the landlord and his lessee, the question of whether a building about to be erected would become a part of the realty or not would depend largely upon the intention of the parties, yet it would not depend upon the intention of one of the parties; nor would a secret intention on the part of both defeat the rights of third parties, who acted without notice of such intention, and upon the faith of the rule established by law, where no such intention existed.^^ § 773. Judicial notice. The courts will take judicial notice of certain things, among which are the true signifi- es West Coast L. Co. v. Newkirk, 80 Cal. 275, 280, 22 Pac. Rep. 231. Kawaii. Entries in books of charges against contractor alone some evidence that tliey were furnished on his credit, but is not prima facie evidence that his credit was relied upon to the exclusion of the security of the building: Hackfeld v. Hilo R. Co., 14 Hawn. 448, 453. " As the lien is not a "claim" against the estate, within the meaning of § 1880, subd. 3, of the Code of Civil Procedure: Booth v. Pendola, 88 Cal. 36, 43. 23 Pac. Rep. 200, 24 Id. 714, 25 Id. 1101. " West Coast L. Co. v. Newkirk, 80 Cal. 275, 22 Pac. Rep. 231. See §§ 185 et seq., ante. Evidence as to permanency of fixture, and intent of o^vner in relation to its use, admissible: See Stevenson v. Woodward, 3 Cal. App. 754, 86 Pac. Rep. 990. Oklalioma. Presumption that building is fixture to land: See Bridges v. Thomas, 8 Okl. 620, 58 Pac. Rep. 955. 675 EVIDENCE. § 774 cance of all English words and phrases, and of all legal expressions.'^ Thus — Mining instrumentalities. " Shafts," " tunnels," " levels," " chutes," " stopes," " uprises," " crosscuts," " inclines," and the like, when applied to mines, are words, of the meaning of which courts will take judicial notice.^" Computations. Courts will take judicial notice of the laws of nature, and hence of the rules of mensuration, by which the cubic contents of an irregular body can be computed.-" Incorporation of city. The court will take judicial notice of the incorporation of a city, and hence will take such notice that San Diego is an incorporated city, for the pur- pose of enforcing a lien for street- work, etc., under the provisions of section eleven hundred and ninety-one,-^ with- out an allegation in the complaint to that effect. ^^ § 774. Parol evidence. Assignment. Parol evidence may be admitted to show the object and purpose of an assign- ment. By explaining all the facts and circumstances . sur- rounding the transaction, the instrument is not varied by parol evidence.^^ " Hines v. Miller, 122 Cal. 517, 55 Pac. Rep. 401. " Hines v. Miller, 122 Cal. 517, 55 Pac. Rep. 401. 20 Scanlan v. San Francisco & S. J. V. R. Co. (Cal., Dec. 23, 1898), 65 Pac. Rep. 694. See Kerr's Cyc. Code Civ. Proe., § 1875, subd. 8, and note. Evidence of Mlirinka^e of eniliankment : See Scanlan v. San Fran- cisco & S. J. V. R. Co., 128 Cal. 586, 61 Pac. Rep. 271. Coniitutations accepted a.s suillciently accurate: See Scanlan v. San Francisco & S. J. V. R. Co., 128 Cal. 586, 61 Pac. Rep. 271. ^ Kerr's Cyc. Code Civ. Proc, § 1191. 22 Bryan v. Abbott, 131 Cal. 222, 63 Pac. Rep. 363. See Kerr's Cyc. Code Civ. Proc., § 1875, and note. ^ Renton v. Monnier, 77 Cal. 449, 19 Pac. Rep. 820. As to parol evidence, see note 15 Am. St. Rep. 714. Parol evidence admissible to show tbat supposed priucipul on bond Is surety: See National B. of C. v. Schirm, 3 Cal. App. 696, 86 Pac. Rep. 981. Montana. Oral evidence that payments should be made according to custom, not admissible to vary terms of express written contract: Ridden v. Peck-Williamson H. & V. Co., 27 Mont. 44, 69 Pac. Rep. 241. Washington. As to check, see Megrath v. Gilmore, 10 Wash. 339, 39 Pac. Rep. 131. Where a defendant liolds under written lease the premises upon whicli a lien is claimed, his interest therein cannot be shown by parol testimony: Cowie v. Alirenstedt, 1 W'ash. 416, 25 Pac. Rep. 458. §§ n 0-777 mechanics' liens. 676 § 775. Same. Parol evidence to explain meaning of words. Parol evideuee of surrouiuiing eireumstauces may be given to aid in the proper interpretation of an instrument ; but where the parties have themselves used words which require no interpretation, where the words are sufficiently clear and understood, there is no occasion for aid to their proper interpretation or meaning, and parol evidence is not admissible therefor.-* Gross ton. Thus where a contract contains the expression " gross ton," parol evidence maj' be admitted to explain it, and to prove that it is often used in lieu of the phrase " long ton," which indicates a ton of two thousand two hundred and forty pounds, and that the statutory ton, consisting of two thousand pounds, was not intended.^^ § 776. Notice. Probate proceedings. Probate proceed- ings in another county than the one in which a mine is situated affords no notice to lien claimants as to the status of the title of the property; but a contract to work a mine belonging to the estate, signed by the executor as such, if known to the laborers under the contractor, is held to be notice of all that it contains.-® § 777. Questions assuming matter in dispute. Questions assuming the matter in dispute are objectionable. Thus an 2-» Shaver v. Murdock, 36 Cal. 293, 297; but see Bryson v. McCone, 121 Cal. 153, 53 Pac. Rep. 637. Colorado. Parol evidence not admissible to explain contract, when terms are clear: See Flick v. Hahn's Peak & E. R. Co., 16 Colo. App. 4S5, 66 Pac. Rep. 453. 455. =" Higgins v. California P. & A. Co., 120 Cal. 629, 52 Pac. Rep. 1080; but see s. c. 109 Cal. 304, 41 Pac. Rep. 1087 (under Kerr's Cyo. Code Civ. Prop., S 1861). Evidence of custom as to weijrh* o' structural steel; "gross ton"; "long ton": Hale Bros. v. Milliken (Cal. App., May 31, 1907), 90 Pac. Rep. 365, 369. Colorado. Parol evidence admissible to explain doubtful meaning of " heart of yellow pine," in contract, circumstances surrounding execution of same, and conversations leading up to same: San Miguel Consol. G. M. Co. v. Stubbs (Colo., April 1, 1907), 90 Pac. Rep. 842, 844. Oregon. Evidence of usage to explain expression " straiglit cut and fill": See Aldrich v. Columbia S. R. Co., 39 Oreg. 263, 64 Pac. Rep. 455. -" Chappius V. Blankman, 128 Cal. 362. 364, 60 Pac. Rep. 925. See San Francisco Pav. Co. v. Fairfield, 134 Cal. 220, 224, 66 Pac. Rep. 255. 677 EViDEN-CB. §§ 778-780 objection is properly sustained to the question, " I will ask 3'ou, if with the money j-ou paid and five hundred dollars damages, whether the whole amount of the contract work and the extra work was paid?" — as the question assumed five hundred dollars damages, a matter in dispute.-^ § 778. Receipt. A receipt is prima facie evidence of the facts recited in it, but is not conclusive, and a receipt acknowledging payment of a debt, whether in money or some other medium, may be explained or contradicted by parol. It is, however, evidence of a very high order, which should prevail, unless it is overcome by clear and satisfactory evidenee.^^ Thus — ■ Payment by note. The receipt of a material-man, ex- pressly stating receipt of " payment by note," is prima facie, although not conclusive, evidence of the facts recited; and it may well be contended that this is something more tha]i a mere receipt which may be contradicted by parol evidence, to wit, that it is an agreement in writing to accept the note as payment. ^^ § 779. Agency.^" Agency may not generality be estab- lished by the declarations and acts of the alleged agent ; but, under proper circumstances, the declarations and acts of an agent might be sufficient to establish ostensible agency, by reason of the failure of the owner to exercise ordinary care.^^ § 780. Same. Special statutory provision.^- Presump- tion. But, under the ])ro visions of the California mechanic's- =■ Barilari v. Ferrea, 59 Cal. 1, 4. =■* .lenne v. Burger, 120 Cal. 444, 446, 52 Pac. Rep. 706. =■' .lenne v. Burg-er, 120 Cal. 444, 446, .52 Pac. Rep. 706. •■" Iinproper evitlenoe of asciioy ailiiiitted; on appeal, great weight attached to other evidence improperly admitted: See Williams v. Hawley. 144 Cal. 9", 102, 77 Pac. Rep. 763. See §§ 572 et seq., ante. Montana. The law presumes that every member of a mining firm has authority to hire laborers and make the firm liable for their wages, if they are necessarily employed in working upon the joint p iperty; and no evidence of such authority is required: Nolan v. Lovelock. 1 Mont. 224. " Kerr'.s Cyc. Civ. Code, § 2317. and note. '^ See " Agency," §§ 572 et seq., ante. § 781 mechanics' liens. 678 lien law, evidence of these acts and declarations is permitted to establish, prima facie, such agency. Section eleven hun- dred and eighty-three,^^ as amended in 1903, gives to a miner, for instance, a lien for labor done at the instance of the owner of the building or his agent, " and every contractor, subcontractor, architect, builder, 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, or the construction, alteration, addition to, or repair, either in whole or in part of any building or other improvement as aforesaid, or of such mining claim or claims, either as lessee or under a working bond or contract thereon, with the privilege of purchase, or otherwise, shall be held to be the agent of the owner for the purposes of this chapter." Where a forei^ corporation owns mines in this state, and, ill its name, work is commenced, and its so-called superintendent buys costly machinery, constructs a mill, extracts and reduces ores, employs miners, material-men, and laborers, takes up water rights and mineral claims, enters into contracts, borrows money, acknowledges service of process in a civil action to collect this money, and, in general, by word and act, holds himself out and conducts himself as the duly and regularly appointed superintendent of the company, these open declarations, and continued acts of the superintendent and foreman, were admissible in evi- dence, under this section, to show the person in charge of the mining.^* § 781. Same. Overcoming presumption. Knowledge. By the rule of evidence declared by section eleven hundred and eighty-three,^^ the showing referred to in the preceding section, if not disputed or overcome, prima facie establishes the agency; but the owner or other person in interest may overcome this by proving his want of knowledge and non- >B Kerr's Cyc. Code Civ. Proc., § 1183. »* Donohoe v. Trinity Consol. G. & S. M. Co., 113 Cal. 119, 123, 45 Pac. Rep. 259. » Kerr's Cyc. Code Civ. Proc, § 1183. 679 EVIDENCE. §§ 782, 783 employment of the alleged ageut, coupled with a showing that he had exercised ordinary care in the premises.^** § 782. Same. Knowledge of lack of agency. The pre- sumption of agency- raised by section eleven hundred and eighty-three ^^ may be rebutted b3' showing that the claim- ant worked with knowledge that the person in charge of the mining did not own the property, and did not work the mine as the owner's representative,'^ and therefore he is not entitled to a lien thereon, on any theory of the agency of such person. § 783. Same. Knowledge that employer incurred in- debtedness on his own account. Evidence is also admissible to show the knowledge of claimant that the employer was in possession under a contract to make improvements and prosecute development-work on a mine, and prospect at his own cost and expense, and that he was to keep the property free from liens ; the purpose being to show that the claimant was employed by the person in possession on his own ac- count, and not in any manner as the agent of the OAvner.^" =« Donohoe v. Trinity Consol. G. & S. M. Co., 113 Cal. 119, 123, 45 Pac. Rep. 259. In this case no one sought to overcome the prima facie case. No direct authorization or direct ratification of the acts of the alleged superintendent were put in evidence. See "Agency," §§572 et seq., ante; "Estoppel," §§469 et seq., ante; "Due Process of Law," §§ 31 et seq., ante. Montana. Partner: See Nolan v. Lovelock, 1 Mont. 224. Oregon. Title G. & T. Co. v. Wrenn, 35 Oreg. 62, 56 Pac. Rep. 271, 76 Am. St. Rep. 454. See Sellwood L. & Mfg. Co. v. Monnell, 26 Oreg. 267, 38 Pac. Rep. 66. S7 Kerr's Cyc. Code Civ. Proc., § 1183. ="* Jurgenson v. Diller, 114 Cal. 491, 492, 46 Pac. Rep. 610, 55 Am. St. Rep. 83 (decided before the amendment of 1903). See "Agency," §§572 et seq., ante; "Estoppel," §§ 469 et seq., ante; "Due Process of Law," §§ 31 et seq., ante. 39 Reese v. Bald Mt. Consol. G. M. Co., 133 Cal. 285, 291, 65 Pac. Rep. 578 (a series of questions, set forth in opinion, held to be competent). But see §§ 572 et seq., and §§ 469 et seq., ante. Certain evidence adini.s.«iibie under Ntiitulation that the father was the agent of the owner in the matter: See Linck v. Johnson, 134 Cal. xix, 66 Pac. Rep. 674. Montana. Declarations of agent as to account, liearsay as to owner: See Missoula M. Co. v. O'Donnell, 24 Mont. 65, 60 Pac. Rep. 991. \VaMiiin»?ton. Evidence that architect was agent, actual or statu- tory, for the purchase of materials: See Seattle L. Co. v. Sweeney, 43 Wash. 1, 85 Pac. Rep. 677. §§ 784, 785 mechanics' liexs. 680 § 784. Same. Proof of knowledge of owner. Under section eleven hundred and eighty-three, as it stood at the time, a contract to sell a mining claim, which permitted the vendee to work the same and extract ores therefrom, could not be received in evidence against the owner, where the vendee did no work at all upon the mine, and the only pur- pose was to show that a mere watchman was hired by the vendee as constructive agent of the owner, the services of the watchman and the acts of the vendee not being within the purview of the statute as to the creation of such agency.**' § 785. Burden of proof.*^ Generally. The burden is on the claimant to show that the person causing the improve- ment was the express or statutory agent of the owner. •*- 3Ieiuoranduiii of settlement made by wife, acting for the com- munity, after the completion of the structure, admissible to show the balance due: See Powell v. Nolan, 27 Wash. 318, 67 Pac. Rep. 712, 718. «> Williams v. Hawley, 144 Cal. 97, 103, 77 Pac. Rep. 762. See §§ 572 et seq., ante. " In action against owner for failure to file contractor's bond, burden of proof: See Gibbs v. Tally, 63 Pac. Rep. 168, s. c. reversed, 133 Cal. 373, 65 Pac. Rep. 970. See " Agency," §§ 572 et seq., ante. As to validity of demands and regularity of liens, see §§ 452 et seq., ante. As to other Interests, see §§ 715 et seq., ante. As to giving notice of non-responsihility, see Hines v. Miller, 122 Cal. 517, 55 Pac. Rep. 401; and §§ 469 et seq., ante. Material-man. Proof that amount due exceeded amount paid. Under Kerr's Cyc. Code Civ. Proc, § 1200, a material-man, seeking to enforce a lien for materials furnished a contractor, who abandoned the work, held required to prove that the value of the work and materials furnished exceeded the amount due and paid to the con- tractor: McCue V. Jackman (Cal. App., March 16, 1908), 95 Pac. Rep. 673. Oregon. Burden on claimants to show, as against the owner, that no payments were made by ownei-'s lessee: See Lewis v. Beeman, 46 Oreg. 311, 80 Pac. Rep. 417. AVashington. Burden of proof; novation: See Kruegel v. Kitchen, 33 Wash. 214, 74 Pac. Rep. 373. As to burden on claimant to show building was on lot described, and that all lots were necessary for convenient use and occupation, see Peterman v. Milwaukee B. Co., 11 Wash. 199, 202, 39 Pac. Rep. 452. Burden of proof on claim of title to materials: See Potvin v. Denny H. Co., 37 W'ash. 323, 79 Pac. Rep. 940, s. c. 26 W^ash. 309, 66 Pac. Rep, 376. ■" Reese v. Bald Mt. Consol. G. M. Co., 133 Cal. 285, 287, 65 Pac. Rep. 578. See §§ 572 et seq., ante! 3Iontana. Burden on plaintiff to show authority of agent of cor- poration, or ratification of his acts by the corporation: See Wagner V. St. Peter's Hospital, 32 Mont. 206, 79 Pac. Rep. 1054. 681 EVIDENCE. § 786 Breach of agreement. The burden of proof is on the party setting np a breach of an agreement.*'* Validity of claims of sublienors. The burden of proof is on the owner, when he makes payments to subclaimauts, to show that the claims of lien are valid.** § 786. Same. Priorities. Where the complaint for the foreclosure of a lien alleged that the other defendants, Avho alone answered, had a mortgage on the building and the land on w^hich it was situated, and that such mortgage was subordinate and subject to the liens of the plaintiff, and the defendants denied this latter allegation, but introduced no evidence showing the priority of their mortgage, it was held that the burden of showing such priority was on the de- fendants, and that the court was justified in finding that their lien w^as subordinate and subject to that of plaintiffs; the court saying, " If the defendants, in their answer to that allegation, had stated facts which showed that their claim was not subordinate or subject to the liens of the plaintiffs, they w^ould have had the affirmative of the issue. And it was their ' business, when thus called upon, to disclose ' the nature of their claim.*^ . . . By not doing so, they certainly occupy no better position than they w^ould if they had done so. Concediiig that the denial of the defendants raised an issue, we think it was one of which they had the affirm- ative." *® ^2 Bancroft v. San Francisco T. Co., 120 Cal. 228, 234, 52 Pac. Rep. 496. "Wilson V. Nugent, 125 Cal. 280, 289, 57 Pac. Rep. 1008. See §§ 514, 525 et seq., ante. Montana. The burden of proof is on claimant to establish his lien: Missoula M. Co. v. O'Donnell, 24 Mont. 65, 60 Pac. Rep. 594, 991. L'tah. In McCorniok v. Saddler, 10 Utah 210, 37 Pac. Rep. 332, it was held that the burden was on the plaintiff, the assignee of the contractor, in an action for the balance of the contract price, after the payment of liens had been made, as agreed between plaintiff and defendant, to show that the claim of a material-man paid by the de- fendant owner was not a lien upon the property of the defendant, as alleged in his answer (Minor, J , dissenting). Burden of proof on lion olaiiiiant; and his books should be properly kept, so that one can clearly ascertain the amount chargeable to the particular property: Knudson-.Iacob Co. v. Brandt (Wash., Sept. 25, 1906), 87 Pac. Rep. 43 (but this latter proposition goes rather to the weight of the evidence). *■• Citing Antliony v. Nye, 30 Cal. 401. " Harmon v. Ashmead, 68 Cal. 321, 323, 9 Pac. Rep. 183. See "Pleading," §§.715, 716, ante; "Answer," §§ 738 et seq., ante. §§ 787-789 mechanics' liens. 682 § 787. Same. Time of filing claim of lien. In an action to foreclose the lien of the original contractor's subclaimant, the burden of proof was held to be on the plaintiff to show the completion of the building within the statutory time, or thirty days prior to the filing of the claim of lien." § 788. Same. Cessation from work. Where the work on a building ceased at a prior time for thirty days before another and subsequent cessation of work, in attacking a lien under section eleven hundred and eighty-seven, as it stood at the time, the owner had the burden of showing, not that there might possibly have been such earlier stoppage of work for thirty days, but that it actually happened.*** § 789. Certificate as evidence.*^ A written certificate for the completion payment, duly signed by the architect, placed Colorado. The onus is on the lien claimant to establish his right of priority under the statute: Mellor v. Valentine, 3 Colo. 260; also, that the person he contracted with was the owner: Rico R. & M. Co. V. Musgrave, 14 Colo. 79, 23 Pac. Rep. 458 (1883). « Schallert-Ganahl L. Co. v. Sheldon (Cal., Feb. 9, 1893), 32 Pac. Rep. 235. The same rule would seem to be applicable to show that the claim was filed within ninety days, or within thirty 'days after the filing- of the owner's notice of completion, since tlie amendment of 1897 to § 1187 of the Code of Civil Procedure. See "Performance," §§ 334 et seq., ante; "Notice," §§ 425 et seq., ante. Colorado. Burden of proof on claimant; time of last work: Stidger V. McPhee, 15 Colo. App. 252, 62 Pac. Rep. 332. Montana. "The commencement of the work must be shown; for from that date the lien attaches, if at all. The character of the work must be shown; for it is not for all kinds of work that a lien is allowed. The completion of the work must be shown; for notice of claiming a lien must be filed in the recorder's office within sixty days from that time. This proof must be furnished by the party who asserts the existence of the lien": Davis v. Alvord, 94 U. S. 545, 547, bk. 24 L. ed. 283. « Marble L. Co. v. Lordsburg H. Co., 96 Cal. 332, 336, 31 Pac. Rep. 164. See "Cessation," S§ 354 et seq., ante. Oregon. The burden is on the owner to allege and prove that some of the material, if the accurate amount thereof was capable of computation in advance, or if not, that an unnecessary qiiantity thereof remained unused after the building was fully completed, or that, without his consent, it had been removed from the building site: Fitch v. Hewitt, 32 Oreg. 396, 52 Pac. Rep. 192. See Allen v. Elwert, 29 Oreg. 428, 44 Pac. Rep. 823, 48 Pac. Rep. 54. *» See " Certificates in Contract," S§ 239 -et seq., ante. Colorado. Stipulation between lien-holders, fixing amounts due, and reciting that subcontractors had liens, admissible: Charles v. Hallack L. Co., 22 Colo. 2S3, 43 Pac. Rep. 548. Washington. See Brown v. Winehill, 3 Wash. 524, 28 Pac. Rep. 1037. 683 EVIDENCE. § "90 in evidence, is some substantial evidence that the architect was satisfied with the building, and, if followed bj^ the owner going into possession of the structure, is evidence of the acceptance thereof on the part of the owner, as well as the architect/"'" Where the architect makes oral declarations, whether be- fore or after giving such certificate, that he was not satisfied with the building, the statements can hardly be taken b}' the trial judge as impeaching such certificate.^^ § 790. Same. Conclusiveness of certificate. The certifi- cate of the architect is conclusive of the rights of the parties under the original contract, as to payments based upon such certificate, unless it can be shown that it was obtained by the owner by collusion, fraud, or mistake, when, under the contract, it is the duty of the architect to certify that such payments are due.^^ ^^ Wyman v. Hooker, 2 Cal. App. 36. 39. 83 Pac. Rep. 79. Resolution of board of supcrvi.sors, reciting that work had been done to satisfaction of superintendent of streets, competent evidence of such satisfaction, as required by contract: Thomason v. Richards, 135 Cal. XX, 67 Pac. Rep. 1056. Evidence as to diK^ing up and di.sturbinfj .street, permission beins granted under ordinance: See Flinn v. Mowry, 131 Cal. 481, 4SS, 63 Pac. Rep. 724, 1006. niontana. Testimony as to estimates inadmissible: See Cook v. Gallatin R. Co., 28 Mont. 320, 72 Pac. Rep. 678. Impeaoliin^ ^vitnes.s as to estimate of work by statements as to erroneousness thereof: See Cook v. Gallatin R. Co.. 28 Mont. 340, 72 Pac. Rep. 678. Oreson. Evidence of refusal of architect to give final certificate at instance of owner: See Vanderhoof v. Shell, 42 Greg. 578, 72 Pac. Rep. 126. Washington. Evidence of approval of building-inspector of work, contrary to law and contrary to contract, excluded: See Ekstrand v. Earth, 41 Wash. 321, 83 Pac. Rep. 305. " Wyman v. Hooker, 2 Cal. App. 36. 39, 83 Pac. Rep. 79. ^2 Dingley v. Greene. 54 Cal. 333, 337. Conclusiveness of certilicatc as to -^vork being done according to contract: question raised, but not decided, in Donnelly v. Adams, 115 Cal. 129, 132, 46 Pac. Rep. 916. See " Terms of Contract," §§ 239 et seq., ante. Conclusiveness of engineer's estimate for additional earth, under contract for emliankment, up to limit specified in contract: See Scan- Ian V. San Francisco & S. J. V. R. Co. (Cal., Dec. 23, 1898), 55 Pac. Rep. 694. Idaho. Final certificate or estimate of architect not conclusive under contract: See Huber v. St. Joseph's Hospital, 11 Idaho 631, 83 Pac. Rep. 768. § 791 mechanics' liexs. 684 § 791. Same. Certificate as evidence of time of com- pletion of building. Where the contract provides that the architect, before the last payment is made, shall show a certificate for the purpose of indicating when the final in- stalment is payable, the date of the certificate is not evi- dence of the time of the completion of the building.^^ Where the contract provides for certificates of the architect for payments under the contract, a certificate that " the build- ing is now finished as per contract," and that the contractor is entitled to the last payment, is not evidence of the time of the completion of the building.^* With reference to this subject, the court has said:^^ " The contract provided, among other things, that the work should be done ' to the satisfaction of the superintendent of public streets of said city and county,' and appellant offered in evidence a certificate of the superintendent, by a deputy, that the work ' has been done to my satisfaction.' Respondent objected, on several grounds, to the admission of this certificate in evidence, and the objection was sustained. Appellant contends that this ruling was erroneous, and that as the lien was filed within sixty days after the date of said certificate, therefore it was filed in time. But this con- tention cannot be maintained. Assuming that, as evidence of the work having been done to the satisfaction of the superintendent, as provided in the contract, the certificate or written declaration of the superintendent was admissible, \Vashinstoii. Architect's certificate only prima facie evidence, unless made conclusive bj' contract: Dyer v. Middle Kittitas Irr. Dist., 40 Wash. 238, 82 Pac. Rep. 301. Pr«M»f that architect's certificate was Riven without sufficient in- ve.stigati(m: See Gritman v. United States F. & G. Co., 41 Wash. 77, 83 Pac. Rep. 6. Certificate of chief engineer of railroad, under contract making It conclusive, held to be conclusive, although not following- the language of contract: See Eastham v. Western C. Co., 36 Wash. 7, 77 Pac. Rep. 1051. M Washburn v. Kahler, 97 Cal. 58, 61, 31 Pac. Rep. 741. And see McLaughlin v. Perkins, 102 Cal. 502, 505, 36 Pac. Rep. 839. See " Contract," §§ 239 et seq., ante. ^ Washburn v. Kahler, 97 Cal. 58, 61, 31 Pac. Rep. 741. See Beatty V. Mills, 113 Cal. 312, 313, 45 Pac. Rep. 468. See "Certificates," §§ 2.39 et seq., and §§ 789 et seq., ante. AVashington. Washington B. Co. v. L. & R. Imp. Co., 12 Wash. 272, 40 Pac. Rep. 982. 65 Beatty v. Mills, 113 Cal. 312, 45 Pac. Rep. 468. 685 EVIDENCB. § 792 and not mere hearsay, and assuming further, that, for the purposes of the contract, a eertilicate of a deputy was a certificate of tlie superintendent, still such certificate could not change, nor in any Avay affect, the statutory period within which a lien must be filed. And that period com- mences at the date of the completion of the Avork. By the contract the superintendent was arbiter, at most, of only the quality of the work, and his certificate only purports to state that the work which had been done was done well and to his satisfaction. If it had contained a statement of the date of the completion of the work, such statement would have been of no value." ^^ § 792. Completion of building-." Whether there was a. completion of the building,'^ and the time of completion,'^" are questions of fact for the trial court to determine. »« Beatty v. MiUs, 113 Cal. 312, 313, 45 Pac. Rep. 468. See Washburn V. Kahler, 97 Cal. .58, »61, 31 Pac. Rep. 741; Warren v. Ferguson 108 Cal. 535, 41 Pac. Rep. 417. See "Completion," SS 792 et seq., post; "Architects," §§119 et seq., ante; "Performance," §§ 334 et seq., ante; "PMIing- Claim," §§ 416 et seq., ante. Colorado. Evidence of custom of estimates by engineer, in tlie absence of agreement, admissible: See Bradbury v. Butler,' 1 Colo App. 430, 29 Pac. Rep. 463. •''' See, generally, "Performance," §§354 et seq., ante; "Contract" S 801, post; "Questions of Fact," § 827. post. AVitness allowed to explain, on redirect examination, that a letter fixing time of delay at less than that claimed was written in attempt to effect an amicable settlement: Hale v. Milliken (Cal. App., May 31 1907), 90 Pac. Rep. 365, 373. Uuilding to be completed by certain date; harmless error in strik- ing out evidence as to conversations relating to extensions of time- Hale V. Milliken (Cal. App., May 31, 1907), 90 Pac. Rep. 365. Rejection of evidence an to waiver of provision in contract re- quiring extension of time to be in writing, error: See Huber v. St Josepli's Hospital, 11 Idaho 631, S3 Pac. Rep. 768. Montana. " Mortgagees and others acquiring interests in tlie property against which such a lien is sought to be enforced have a riglit, therefore, to call for strict proof of all that is essential to the creation of the lien, and that includes proof of the commencement of the work, of its character, and of its completion: Davis v Alvord 94 U. S. 545, 547, bk. 24 L. ed. 283. '-^ Marble L. Co. v. Lordsburg Hotel Co., 96 Cal. 332 334 3i Pac Rep. 164. •"■» Willamette S. M. Co. v. Kremer, 94 Cal. 205. 208. 29 Pac. Rep. 633; Coss v. MacDonough, 111 Cal. 662. 666, 44 Pac. Rep. 325- Willamette S. M. Co. v. Los Angeles College Co., 94 Cal. 229, 238 29 Pac. Rep. 629. §§ 793-795 mechanics' liens. 686 The original contract, even if void, is admissible to de- termine the character of the building to be erected, and thereby to furnish the test by which it can be known when the building was completed, for the purpose of filing liens."" § 793. Same. Statutory evidence. Under section eleven hundred and ninety-seven,''^ as amended in 1887 and 1897, the occupation and use of a building by the owner, or his acceptance thereof, or cessation of work on any unfinished contract, or building, improvement, or structure, has been held conclusive evidence of the completion, or, by the amendment of 1897, " equivalent to completion," for the purpose of filing subclaimants' claims of lien."- § 794. Non-completion of building. When it is made to appear that it was the original purpose of the owner to erect and construct a building in part only, or that the owner, having proceeded to erect the house in part, aban- doned his design in finishing it, the building should be held to be completed, within the meaning of section eleven hun- dred and eighty-seven,"^ from the time it was so built in part, for the purpose of filing liens."* § 795. Claim of lien."^ As evidence of lien. It has been said that the office of filing the claim is, among other things, 6» Barker v. Doherty, 97 Cal. 10, 12, 31 Pac. Rep. 1117; Joost v. Sullivan, 111 Cal. 286, 292, 43 Pac. Rep. 896. See " Performance," §§ 334 et seq., ante. " Kerr's Cyc. Code Civ. Proc., § 1197. «2 See "Filing- Claim of Lien," §§416 et seq., ante; "Occupation, Use, and Acceptance," §§350 et seq., ante; "Cessation," §§354 et seq., ante. " Rule has reference not only to the occuiiation, use, or acceptance of a dwelling or otiier house, but to any kind of structure, building, or improvement in which the materials of the lien claimant have been used": Giant P. Co. v. San Diego F. Co., 88 Cal. 20, 23, 25 Pac. Rep. 976; Joost v. Sullivan, 111 Cal. 286, 292, 43 Pac. Rep. 896; Giant P. Co. V. San Diego F. Co., 78 Cal. 193, 195, 20 Pac. Rep. 419; W'illam- ette S. M. Co. V. Los Angeles C. Co., 94 Cal. 229, 239, 29 Pac. Rep. 629. «3 Kerr's Cyc. Code Civ. Proc, § 1187. " Schwartz v. Knight, 74 CaL 432, 434, 16 Pac. Rep. 235. «5 See, generally, §§ 3<1 et seq., ante; "Rights of Owner," §§510 et seq., ante. Attorney for contractor failing to file claim of lien for siibclaimant; evidence of knowledge as to attorneyship: See Perkins v. West Coast L. Co., 129 Cal. 427, 62 Pac. Rep. 57. 687 EVIDENCH. § 795 to give notice of the claim, and not to serve as evidence of the lien."" But by this language it was evidently not meant that the claim of lien was not admissible in evidence to show that one of the steps in perfecting the lien had been taken. The recorder's indorsement of tiling on the claim of lien is prima facie evidence, at least, of the tiling and the date of its record."^ «« Corbett v. Chambers, 109 Cal. 178, 183, 41 Pac. Rep. 873. See "Nature and Object of Claim," §§361 et seq., ante; "Notice," §§ 547 et seq., ante. Colorado. Tlie statement is not even prima facie evidence of tlie truth of anything which it contains: Mouat K & I. Co. v. Freeman, 7 Colo. App. 152, 42 Pac. Rep. 1040 (1883, 1889). Montana. The claim of lien is not evidence against the owner as to the nature of the work or the commencement thereof: Davis v. Alvord, 94 U. S. 545, 547, bk. 24 L. ed. 283. «' Silvester v. Coe Quartz M. Co., 80 Cal. 510, 512, 22 Pac. Rep. 217. 218. Montana. On the trial it is not necessary to prove the filing of the lien before evidence can be offered that the materials entered into the construction of the building: Bardwell v. Anderson, 13 Mont. 87, 32 Pac. Rep. 285. Sundry objections made to account: Id. Oklahoma. Indorsement on claim of lien of service on owner, held incompetent, but some evidence, if not objected to: See Ryndak v. Seawell, 13 Okl. 737, 76 Pac. Rep. 170. Wa»ihinston. See, citing the California case, Garneau v. Port Blakeley M. Co., 8 Wash. 467, 36 Pac. Rep. 463. Contra: Jewett v. Darlington, 1 Wash. Ter. 601. It was held, under the logging-lien law (Laws 1893, p. 428), that affirmative proof that the notice was properly indexed in the auditor's office is not essential to recovery thereon: McPherson v. Smith, 14 Wash. 226, 44 Pac. Rep. 255. Certified cojiy of the notice and proof of it.** record are competent evidence: Id. Auditor's certificate of recording notices, and an additional certifi- cate that they were "as the same appear of record," prove the fact and date of record: Fairhaven L. Co. v. Jordan, 5 Wash. 729, 32 Pac. Rep. 729. .Mere filing indorsement of date aniuting; out specific objection as to variance bet^'een claim of lien offered and claim pleaded: See Georges v. Kessler, 131 Cal. 183, 185, 63 Pac. Rep. 466. Pointing out specific objection as to variance between tlie contract as set out in the complaint and tlie claim of lien: See Georges, v. Kessler. 131 Cal. 183, 185, 63 Pac. Rep. 466. AVashington. Objections to sufficiency of claim of lien should t e raised at the time it is offered. So of objection as to variance between claim and complaint: Greene v. Finnell, 22 Wash. 186, 60 Pac. Rep. 144. See Bolster v. Stocks, 13 Wash. 460. 43 Pac. Rep. 532, 534, 1099: Price V. Scott, 13 Wash. 574, 43 Pac. Rep. 634; Sweeney v. Pacific C. E. Co., 14 Wash. 562, 45 Pac. Rep. 151. Vnder lien \a^v in force, amendments were authorized; hence reason for specific objections to claim upon introduction well founded: See Greene v. Finnell, 22 Wash. 186, 60 Pac. Rep. 144. «9 West Coast L. Co. v. Newkirk, 80 Cal. 275, 280, 22 Pac. Rep. 231. See " Names," §§ 379 et seq., ante. Idaho. Evidence as to name of group of mining claims given in claim of lien, admissible: See Phillips v. Salmon River M. & D. Co., 9 Idaho 149, 72 Pac. Rep. 886. "> Kelly v. Lemberger (Cal., Sept. 15, 1896), 46 Pac. Rep. 8. See "Variances," §§835 et seq., post. Conveyances on record as evidence of reputed OT»nersJ»ip: See §§ 379 et seq., ante. AVashingrton. In Wheeler, O. & Co. v. Ralph, 4 Wash. 617, 30 Pac. Rep. 709, it was held that where the claim is offered in evidence for the purpose of establishing a lien, all questions going to the suffi- ciency of the notice, if not raised at the time of its offer, will be deemed waived; but it seems that there was also an express waiver of objections to the claim. " Montrose v. Conner, 8 Cal. 344, 347. See "Description," §§.399 et seq., ante; but see § 768, ante. Montana. Goodrich L. Co. v. Davie, 13 Mont. 76, 32 Pac. Rep. 282. >eTi- 3lexico. Likewise as to an insufficient verification: Finane v. Las Vegas Hotel Co., 3 N. M. 256, 5 Pac. Rep. 725. Oregon. The proof must show that the description in the claim is the same as that in the complaint: and wliere the claim stated that the lanci was part of a certain lot, fully described in a certain deed re^ 689 EVIDENCE. §§707.798 § 797. Extra work. In the absence of an allegation in the complaint as to extra work, it has been held that a general statement as to its value and character is insufficient; there should be allegation and evidence in detail as to what the extra work consisted of and the value thereof.'- Where it is alleged in the complaint that the plaintiff performed extra work for an agreed price of five dollars, as set forth in the claim of lien, and this allegation is not denied by the defendant in his answer, this admission supports the state- ment in the claim of lien for extra work.'^ § 798. Valid contract.'* Where evidence is introduced to show that the architect accepted the building, and that the contract was executed on the part of the plaintiff, and that nothing remained but the payment of the mone}' due, the pleader, under these circumstances, being allowed to set forth his cause of action under the common counts, may ferred to by date and place of record, and the complaint described the land by metes and bounds as part of the same lot, an issue being' raised by the answer that the claim did not describe the land as alleged in the complaint, no lien could be decreed, if the deed was not introduced in evidence: Moreliouse v. Collins, 23 Oreg. 138, 31 Pac. Rep. 295. I tall. Essential averments omitted cannot be supplied by extrinsic evidence: Morrison v. Willard, 17 Utah 306, 53 Pac. Rep. 832, 70 Am. St. Rep. 784. >VnMliinKtuii. See Stetson & P. M. Co. v. McDonald, 5 Wash. 496, 32 Pac. Rep. 108. "'■ Sweeney v. Meyer. 124 Cal. 512. 516, 57 Pac. Rep. 479. As to extra work, see 1 Am. & Bng. Ann. Cas. 950. " McGinty v. Morgan, 122 Cal. 103, 54 Pac. Rep. 392, 393. See § 766, ante. '* Contract as evidence of value: See § 829. post. Contract a.** evidence, npon deviation, ahan a.HliinKton. Corrections and interlineations made before contract and specifications executed; the latter admissible: See Crowley v. United States F. & G. Co., 29 Wash. 268, 69 Pac. Rep. 784. Mech. Liens — 44 § 799 mechanics' liens. 690 introduce in evidence the special contract, at least if valid, as an admission of the standard of value, or as proof of any other facts necessary to the recovery.'" Contract as evidence in action on contractor's bond. In an action on the contractor's bond referring to the contract, it is proper to show what the original contract Avas ; and the building contract referred to in the bond is admissible in evidence for that purpose.'^® § 799. Same. Parol modifications of written contract. Where an original contract is entirely superseded by a sub- seciuent parol modification of it, and if it expressly provides for alterations, deviations, additions, and omissions upon request, and for a reasonable rebate from or addition to the price on account thereof, such modification as was in fact made upon request is properly provable by parol evi- dence; and in such case the written contract is admissible in evidence to determine how far it had been performed, and to ascertain the stipulated time and mode of payment, in order to give it effect as far as it may be applicable in connection with the parol modification of it." " Castagnino v. Balletta, 82 Cal. 250, 259, 23 Pac. Rep. 127. See " Value," §§ 829 et seq., post. As to ailniissibility of special contract under conimou counts, see Reynolds v. Jourdan, 6 Cal. 108; Steward v. Hinkel, 72 Cal. 187, 13 Pac. Rep. 494; Castagnino v. Balletta, 82 Cal. 250, 259. 23 Pac. Rep. 127; Nichols V. Randall, 136 Cal. 426, 69 Pac. Rep. 26. '» Kurtz V. Forquer, 94 Cal. 91, 94, 29 Pac. Rep. 413. " White V. Soto, 82 Cal. 654, 657, 23 Pac. Rep. 210; O'Connor v. Dingley, 26 Cal. 11, 20, 23. But it has been shown that, at least in certain cases, no alteration of the original contract affects any lien of subcontractors: Kerr's Cyc. Code Civ. Proc, §1184; see "Altera- tion of Contract," §§ 326 et seq., ante; except with their written con- sent to the waiver or impairment thereof: Kerr's Cyc. Code Civ. Proc, §1201; see "Waiver and Release," §§627 et seq., ante. It was for- merly held that a subsequent contract changing the terms of the original contract was not admissible in evidence against lien claim- ants, without evidence of their knowledge of it prior to furnishing materials: Shaver v. Murdock, 36 Cal. 293, 297 (1862). In a suit brought on quantum meruit, for work and labor, testimony is admissible to prove that tlie original contract has been changed at the request of the defendants, and the value of extra work per- formed: Mowry v. Starbuck, 4 Cal. 274. Utah. Conversations held after contract of employment, as to rate of compensation: See Sandberg v. Victor G. & S. M. Co., 24 Utah 1, 66 Pac. Rep. 360, 363. 691 EVIDENCE. §§ 800-803 § 800. Same. Contract admissible to show character of building. It has already been shown that the original eon- tract, whether valid or void, is admissible in evidence to determine the character of the building to be erected, and thereby to furnish the test by which it can be known when the building is completed, for the purpose of filing liens.'* § 801. Same. Contract as evidence with reference to time of performance of labor. Where the contract is not restricted in application to the labor performed after it was signed, the actual time of signing is immaterial ; and it seems to be conclusive evidence that the labor mentioned in the contract performed after its date was done subject to its terms.'^^ § 802. Inadmissibility of indefinite contract. Where the complaint avers that the contract was for grading the south half of Chestnut Street, and the contract offered in evidence was between the contractor and certain owners of lots, " fronting on Chestnut — % street," and the con- tractor was to furnish all the materials and perform the work of constructing, " in front of the property here repre- sented," the contract is too uncertain and indefinite as to the work to be done to be entitled to be admitted in evi- dence.^" § 803. Parol evidence in aid of false reference. A false reference, in a contract, to the plans and specifications, as being " hereto annexed," cannot be helped out by oral evidence ; ®^ for, in such case, to permit the parties to prove \Va.sliington. Oral modification of contract with board of county commissioners, not entered in minutes, admissible: See Long- v. Pierce County, ■22 Wash. 330. Gl Pac. Rep. 142. 146. Ii)viong- v. Pierce County. 22 Wash. 330, 61 Pac. Rep. 142, 147. " See §§ 792 et seq., and §§ 315 et seq., ante. " Skym V. Weske Consol. Co. (Cal., Dec. 18, 1896), 47 Pac. Rep. 116. 1^ Rauer v. Fay, 110 Cal. 361, 365, 42 Pac. Rep. 902; Rauer v. Welsh (Cal., Dec. 10, 1895), 42 Pac. Rep. 904. See "Contract," §208, ante. " Worden v. Hammond, 37 Cal. 61, 64. See " Contract," § 208, ante. §§804,805 mechanics' liexs. 692 that plans and specifications which did not correspond ^Yith the reference are the plans and specifications referred to is to make a different contract, or, at least, to open the door to doing so ; and such evidence is objectionable, even though it were conclusively shown that the specifications were the ones referred to, it being a question of the making of the contract, and not of its interpretation, as in the case of latent ambiguities.^- Signed specifications. Where the statutory original con- tract refers to specifications which are signed, if such reference is false it cannot be aided by parol evidence, and specifications which are not signed cannot be admitted in evidence.*^ § 804. Parol evidence not admissible- for construction of contract. And parol evidence is inadmissible to show that a payment under a contract is a condition precedent, and that a failure to make such payment was a prevention of performance of the contract; and, although both parties may know, at the time of making the contract, that the con- tractors relied, and were compelled by their pecuniary re- sources to rely, upon the payment by the defendant of the instalments as they became due, yet such evidence is inad- missible to show" prevention of performance of the contract to do certain work for which the defendants were to make payments in instalments.^* § 805. Same. Rule not applicable to mere memorandum. The rule prohibiting the introduction of parol evidience for the purpose of cutting down or adding to the terms of a 8* W^est Coast L. Co. v. Knapp, 122 Cal. 79, 54 Pac. Rep. 533. See §§ 208, 292, ante. *3 DonneHy v. Adams, 115 Cal. 129, 131, 46 Pac. Rep. 916. See § 208, ante. AVaMliington. That specifications of contract were drafted by con- tractor, held immaterial, in the absence of fraud, or under special cir- cumstances, if the language is plain and unambiguous: See Novelty M. Co. V. Heinzerling, 39 Wash. 244, 81 Pac. Rep. 742. ^ Cox V. McLaughlin, 6S Cal. 196, 205. See " Performance," §§ 334 et seq., ante. ■ AVashingtun. The written contract is the highest evidence of its terms: Megrath v. Gilmore, 10 Wash. 339, 39 Pac. Rep. 131. 693 EviDExcB. §§ 806, 807 written contract does not apply to a writing which shows on is face that it is an informal memorandum, and which does not show who was to do the work or who was to pay for it, nor define the mntual obligations of the parties, nor purport to bind any one ; and it will be considered in connection with the oral negotiations which preceded it. In order that the rule may have any application, the writing must be one Avhich, by legal construction, shows upon its face that it was intended to express the whole contract between the parties. ^^ § 806. Same. Performance of contract. After the plaintiff has testified fully in relation to the terms of the contract for construction, sued upon, as he claims them to be, and as to the precise work he had agreed to do, and the kind of material wliich he was to use, it is competent for him to state whether, in point of fact, the work had been done, and such quantity of materials used according to the contract; since the questions did not call for the opinion of the witness, within the meaning of the law excluding the opinions of witnesses, but for facts within his knowl- edge.®^ i$ 807. Void original contract admissible for what pur- pose. In conformity with the rule laid down in the last preceding section, a void original contract is admissible ia an action on the implied contract by the original contractor, " Kreuzberger v. Wingfield, 96 Cal. 251, 255, 31 Pac. Rep. 109. InMtriinieut not nlKt^viuiu; on its face that it was intended to express the whole contract between the parties, the rule excluding the parol evidence does not apply: See Kreuzberger v. Wingfield, supra; Harrison V. McCormick, 89 Cal. 327, 26 Pac. Rep. 830, 23 Am. St. Rep. 469; Naum- berg V. Young, 44 N. J. L. (15 Vr.) 338; Briggs v. Hilton, 99 N. Y. 517, 3 N. E. itep. 51, 52 Am. Rep. 63. AVaMliinKtou. See Megrath v. Gilmore, 10 Wash. 339, 39 Pac. Rep. 131. "" Kreuzberger v. WMngfield, 96 Cal. 251, 255, 31 Pac. Rep. 109. Oregon. Contract not requiring a written demand for additional time of performance, evidence that such demand was not made is im- material, wlien weighed by acts of architect: See Vanderhoof v. Shell, 42 Oreg. tuS. 72 Pac. Rep. 126, 131. Washington. See Megrath v. Gilmore, 10 W'ash. 339, 39 Pac. Rep. 131. §§ 808. 809 mechanics' liexs. 694 against the owner in personam, to show that the work had not been done in accordance with the express contract.®^ § 808. Same. Invalidity, how shown. A subclaimant may show the invalidity of the original contract in evi- dence, without an allegation of its invalidity, in an action to foreclose a lien for the value of the materials furnished at the special instance and request of the owner of the building.*^ § 809. Malperformance of work. If the plaintiff, in an action to foreclose his lien, introduces evidence to prove that the work upon w^iich the lien is based was performed in a good and workmanlike manner, the defendant has a right to disprove that fact, and to show that it was not so done, even if there be no issue as to whether the work was done in an improper manner.^^ The evidence of carpenters and architects, to the effect that, as far as the work had progressed at the time the contractor abandoned the building, it was a fair average job for that class of building, does not support an issue as to whether the contractor furnished the kind and quality of materials required by the contract, or whether such a breach of the contract was a substantial one.®" " Laidlaw v. Marye, 133 Cal. 170, 176, 65 Pac. Rep. 391, overruling Rebman v. San Gabriel V. L. & W. Co., 95 Cal. 390, 30 Pac. Rep. 564. See discussion, §§ 319 et seq., ante. *s Yancy v. Morton, 94 Cal. 558, 560, 29 Pac. Rep. 1111. See "Pleading," §§ 689 et seq., and §§ 319 et seq., ante. s» Hagman v. Williams, 88 Cal. 146, 151, 25 Pac. Rep. 1111 (in this case there was an issue as to the performance of the contract, but the opinion does not clearly allude to it); Barilari v. Ferrea, 59 Cal. 1, 4 (testimony as to character of material stricken out, on the ground that witness was not an expert, but afterwards the same testimony was introduced on cross-examination; held, immaterial error). Montana. Custom as to including "waste" as part of material: See Marsh v. Morgan. 18 Mont. 19, 44 Pac. Rep. 85. Testimony of contractor, in rebuttal, with reference to non-payment of subcontractor for an alleged defective floor until architect accepted the same, admissible to affect weight of architect's testimony that the floor was defective: Wyman v. Hooker, 2 Cal. App. 36, 41, 83 Pac. Rep. 79. »» Golden Gate L. Co. v. Sahrbacher, 105 Cal. 114, 117, 38 Pac. Rep. 635. 695 EVIDENCE, §§ 810, 811 § 810. Liquidated damages. A clause in a contractor's bond, that if the building was not completed by a certain day, the bondsmen should pay a fixed sum for each day's delay, as liquidated damages, does not alone justify a recovery by the owner of such stipulated sum, when there is no evidence that, from the nature of the case, it was impracti- cable or extremely difficult to fix the actual damage that would result from the non-completion of the building by such date, w^lien the contractor fails to complete same within such time.^^ § 811. Damages. Circumstances surrounding execution of contract. Defendant in default. Where it appears that a breach of the contract has been made by the defendant, evidence as to whether the plaintiff was informed that it was important that the work should be done within the time specified in the contract, or whether the work done " is " of any present benefit to the defendant, or whether the latter has sustained any loss from the fact that it was not com- pleted within the time specified, may be excluded without material error.^^ »» Patent B. Co. v. Moore, 75 Cal. 205, 209, 16 Pac. Rep. 890. See '• Liquidated Damages," §§ 237, 238, ante. Cost of uew staircase not measure of danuif^e for breach of con- tract, when staircase built was merely defective, and could be rem- edied at moderate cost; and error to admit evidence as to such cost: See Carpenter v. Ibbetson, 1 Cal. App. 272. 274, 81 Pac. Rep. 1114. «- San Francisco B. Co. v. Dumbarton L. & I. Co., 119 Cal. 272, 276, 51 Pac. Rep. 335. Kvidence of circumstances surrounding execution of contract for purpose of estimatinf,^ damages: See Hale v. Milliken (Cal. App., May 31, liiUT). 90 Pac. Hep. 36.^. 368. Evidence of nature of services admissible in action for damages for breach of contract; services in oljlaining materials and labor of super- vising work: See Bryant v. Broadwell, 140 Cal. 490, 495, 74 I'ac. Kep. 33. iVature of concrete-work unconnected witii cause of action, after acceptance by superintendent of streets: See Thomason v. Richards, 135 Cal. XX, 67 Pac. Rep. 1056. Idaho. Evidence of circumstances surrounding execution of con- tract; prospective profits: See Harris v. Faris-Kesl C. Co. (Idaho, April 4, 1907), 89 Pac. Rep. 760. Oregon. Opinion of plaintiff as to amount of damage for failure to deliver materials, inadmissible: See United States v. McCann, 40 Oreg. 13. G6 Pac. Hep. 274. Kvidence of dilliculties and cost of work: See Aldrich V. Columbia S. H. Co., 39 Oreg. 263, 64 Pac. Rep. 455. §§ 812-815 MECUxVNICS' LIENS. 696 § 812. Presumption of knowledge by subclaimants of valid contract. Subclaimants are conclusively presumed to have knowledge of the existence of a valid contract and its terms, in the absence of fraud or misrepresentation.'-*^ The subject of the effect of the validity of the contract as notice has been fully considered in another place, to which reference is made in the note.'-** § 813. Evidence of benefit conferred. Evidence that cer- tain work and materials furnished, as a gas plant, added to the value of the plant, or conferred a benefit on the owner thereof, is admissible in a suit on the implied contract ; but is inadmissible in a suit on the express contract, whether the original contract is valid or void.^^ § 814. Acceptance of performance. It is sufficient for the plaintiff to show full performance of the express contract on his part, and he is not required to prove, in addition, that the work was accepted by the defendant, although such acceptance is alleged in the complaint."'' § 815. Evidence of liability in case of failure to perform, or abandonment. When the contractor fails to perform his contract in full, or abandons the same before completion, evidence must be received, in accordance with section twelve hundred,'*^ tending to show the extent of the owner's liability, measured by the rule laid down in that section. Under such circumstances, therefore, the court may admit AVashington. Evidence surrounding execution of contract: See Anderson v. Harper, 30 Wash. 378, 70 Pac. Rep. 965 (difficulties and cost of work). Deinauds made by contractor, wliich, under the contract, were to have been submitted to arbitration, not admissible in action by owner against contractor for payment of liens and cost of completing structure: Main I. Co. v. Olsen (Wash., Sept. 28, 1906), 86 Pac. Rep. 1112. 93 Henley v. Wadsworth, 38 Cal. 356, 361. «* See §§ 315 et seq., ante. »= Sims V. Petaluma G. L. Co., 131 Cal. 656, 661, 63 Pac. Rep. 1011, reversing, on this point, s. c. 62 Pac. Rep. 300. See Bradbury v. Mc- Henry, 125 Cal. xix, 57 Pac. Rep. 999. »« Gilliam v. Brown, 126 Cal. 160, 162, 58 Pac. Rep. 466, s. c. 116 Cal. 454, 48 Pac. Rep. 486. »' Kerr's Cje. Code Civ. Proc, § 1200. 697 EVIDENCE. §§ 816, 817 evidence of the value of the work clone and materials furnished by the contractor, including material upon the ground not used, estimated by the standard of the whole contract price, and what would be the reasonable cost of completing the building according to the plans and specifi- cations.*"* § 816. Estoppel as evidence."" General rule. Where no opportunity to plead an estoppel by deed or matter of record is given, it is conclusive evidence; and if a record that has not been pleaded is offered in evidence as an estoppel, and no objection is made, at the time, that the record has not been specially pleaded, the objection is deemed waived. ^"^ § 817. Same. Judgment. Judgments are evidence in actions concerning the same matters for and against the parties thereto, as well as their privies in estate. But where an answer fails to plead another action pending, previously commenced by the plaintiff's subcontractor against an agent of the defendant to recover for the work, the judgment in the action against such agent cannot be an estoppel against the plaintiff, who sues for the same work, if he was not made a party to such action, when, in the subsequent action, the court makes a finding that the work was done by plain- tiff and accepted by defendant. ^"^ And so where a person obtains a judgment against the owner of certain property, and obtained a sheriff's deed by sale of the property "s MacDonald v. Hayes, ]32 Cal. 490, 495, 64 Pac. Rep. 850. \%'a»ihlngrton. AdmissUiility of new contract of surety for com- pletion of building abandoned by contractor: See Brodek v. Farnum, 11 Wash. 565, 40 Pac. Rep. 189. Compare Savage v. Glenn, 10 Oreg. 440. »» See "Sxtent of Lien," §§469 et seq., ante; "Certificates," §§239 et seq., § 291, and §§ 672 et seq., ante. AVaNliiiiKtun. As to estoppel for delay in bringing action: See McDonald v. Lewis, 18 W'ash. 300, 51 Pac. Rep. 387. """ Griffith V. Happersberger, 86 Cal. 605, 612, 25 Pac. Rep. 137, 487. VVasliiuKton. See De Mattos v. Jordan, 15 Wash. 378, 391, 46 Pac. Rep. 402. E^stopitel as to oliaraoter of material as per.sonalty upon judgments foreclosing lien and enjoining sale of same as personalty: See Potvin V. Denny H. Co.. 37 Wash. 323. 79 Pac. Rep. 940. "» Griffith V. Happersberger, 86 Cal. 605, 612, 25 Pac. Rep. 137, 487. See " Parties," §§ 662 et seq., ante. § 8] 8 mechanics' liens. 698 under such judgment, and thereafter a lien claimant begins an action to enforce his lien against the property, the claim of lien having been recorded before such judgment had been docketed, and such judgment creditor was not joined as a party defendant, and the lien claimant became the pur- chaser under the judgment foreclosing his lien, and the owner thereafter purchased of the judgment creditor the title which the latter had obtained under his sheriff's deed, where the lien claimant brought an action against the owner to recover possession, the owner was not estopped by the lien claimant's judgment from setting up the new title which he had acquired from such judgment creditor."- But where the complaint alleges the execution of a mortgage by a cor- poration, and seeks its foreclosure, which is decreed, the purchaser of the mortgaged property at sheriff's sale, dur- ing the pendency of the first action, under a judgment foreclosing a lien younger than the lis pendens filed in the first action, is estopped from urging that the mortgage was not the act of the corporation."^ § 818. Same. Owner estopped. The owner of the prop- erty is estopped from making a defense based on the ille- gality of the formation of a copartnership by several corpo- rations, which sold and delivered materials therefor, where the action to foreclose the lien for such material is brought by the assignee of the partnership; for, when one has contracted with an alleged corporation, and is sued for failure to perform his contract, he cannot be heard to say that the corporation has no existence, and for that reason no contract was made.^°* "2 Flandreau v. Downey, 23 Cal. 354, 359. "3 Horn V. Jones, 28 Cal. 194, 204 (1855). See § 818, post. As to effect of lis pendens and rights of purchasers pendente lite, see Kerr's Cyc. Code Civ. Proe., § 409. and note. i»< Yancy v. Morton, 94 Cal. 558, 560, 29 Pac. Rep. 1111. See § 817, ante. See Camp v. Land, 122 Cal. 167, 169, 54 Pac. Rep. 839; Fresno C. & I. Co. v. Warner, 72 Cal. 379, 383, 14 Pac. Rep. 37. Distinguished in Frazier v. Murphy, 133 Cal. 91, 96, 65 Pac. Rep. 326, as to presenting of claim for probate, Where individual conducted business under firm name. t 699 EVIDENCE. §§ 819-821 § 819. Same. Owner estopped by acts of reputed owner. The owner of property may, by his acts and conduct, be estopped from questioning the acts of a reputed owner. ^""^ This matter has already been considered at some length, and the distinction between equitable estoppel and the peculiar statutory estoppel frequently found in mechanic's-lien laws pointed out.^°" § 820. Same. Surety not estopped to foreclose lien. The fact that a material-man was a surety on the l)oud that the contractor would not impose any liens on the building does not estop him from setting up a lien on the building,"' what- ever effect the execution of such bond may have as a waiver or as a basis for set-off and counterclaim. This subject has already been considered in another place ."^ § 821. Same. Estoppel of contractors on bond. Even where the contract is void, the act of contractors in giving a bond as an independent security, and thereby inducing the owner of the building to make full payment of the con- tract price to them, estops the contractors on the bond from Colorado. As to owner's interest bound by estoppel, see Davidson V. Jenning.s, 27 Colo. 187, 60 Pac. Rep. 354, 83 Am. St. Rep. 49, 48 L. R. A. 340. Ha>vsiii. Estoppel as to sale of material: See Allen v. Redward, 10 Hawn. 151, 158. Washington. In an action for grading-work, defendant not es- topped by acquiescence: See Erickson v. Hochbrune (Wash., Aug. 27, 1907), 91 Pac. Rep. 485. "= Santa Cruz R. P. Co. v. Lyons, 117 Cal. 212, 213, 48 Pac. Rep. 1097, 59 Am. St. Rep. 174. See "Extent of Lien," §§ 438 et seq., ante; "Estoppel," §§ 469 et seq., ante. "« See §§ 469 et seq., ante. AIn.ska. Owner permitting improvements: See Chambers v. Han- num, 1 Alas. 468. AVaMliin;;ton. Defendant not estopped to deny grading was done with hi.s acquiescence: See Erickson v. Hochbrune (Wasli., Aug. 27, 1907), 91 Pac. Rep. 485. "' Schallert-Ganahl L. Co. v. Neal, 90 Cal. 213, 215, sub nom. Stovell V. Neal, 27 Pac. Rep. 192; Blyth v. Torre (Cal., Dec. 4, 1894), 3S Pac. Rep. 639. See Patent B. Co. v. Moore, 75 Cal. 205, 207, 16 Pac. Rep. 890; Stimson M. Co. v. Riley (Cal., Dec. 20, 1895), 42 Pac. Rep. 1072. See " Sureties," §ii 605 et seq., ante. WaMliini^ton. Estoppel of owner to deny rescission of contract, so far as surety is concerned: See Gottstein v. Seattle L. & C. Co., 7 Wash. 424, 35 Pac. Rep. 133. i"* See §§ 619, 620, ante. §§822,823 mechanics' LIENS. 700 disputing the truth of a recital of the bond as to the contract, and from denying their liability upon it for liens which they failed to discharge, and which the owner was compelled to pay.^°» § 822. Forfeiture and fraud."" The provisions of section twelve hundred and two/" that any person who shall wil- fully give a false notice of his claim to the owner under the provisions of section eleven hundred and eighty-four,"- and any person w^ho shall wilfully include in his claim filed under section eleven hundred and eighty-seven,^^^ work not performed on or materials not furnished for the property described in the claim, shall also forfeit his lien, are to the effect that the claimant shall forfeit his lien in toto for a violation of such provisions, and are penal in character, and must not only be strictly construed, but the evidence under which they are invoked should be clear and convincing that the violation was wilful and intentional."* § 823. Same. Rescission as evidence of fraud. Where persons were given a right to rescind an arrangement made to extend a lien, such extension having been made under a misapprehension as to the applicability of the law allowing '»» Kiessig v. Allspaugh, 91 Cal. 234, 238, 27 Pac. Rep. 662, 13 L. R. A. 418. See "Sureties," §§605 et seq., ante. \VIiere the original contractor alleges or admits tlie subclaiinant'si riglit to the amount due from the owner, the contractor is afterwards unable to recover from owner: See Union L. Co. v. Simon (Cal. App., March 13, 190 \ and Cal. Sup.), 89 Pac. Rep. 1077, 1080, 1081. Purchaser of property of estate as-suniing debt created by contract with executor, not e-stopped to file claim of lien: See San Francisco P. Co. V. Fairfield, 134 Cal. 220, 223, 66 Pac. Rep. 255. "" See, g-enerally, "Forfeiture of Lien," §§ 627 et seq., ante; "Fraud in Contract," § 207, ante. Arizona. In the absence of fraud or bad faith, evidence to segre- gate lienable items from those not lienable: See Wolfley v. Hughes (Ariz., March 30, 1903), 71 Pac. Rep. 951. "1 Kerr's Cyc. Code Civ. Proc, § 1202. 112 Kerr's Cyc. Code Civ. Proc, § 1184. Hi Kerr's Cyc. Code Civ. Proc, § 1187. "* Schallert-Ganahl L. Co. v. Neal, 91 Cal. 362, 365, sub nom. Stovell V. Neal, 27 Pac. Rep. 192. See Pacific Mut. L. Ins. Co. v. Fisher, 106 Cal. 224, 235, 39 Pac. Rep. 758. See " Waiver and Forfeiture," §§ 627 et seq., ante; " Construction," §§ 26, 227, ante. 701 EVIDENCE. §§824,825 the same, the debt being legal and just, and the plaintiff having acquired no rights which it would be inequitable to disturb, it was held that such rescission was no evidence of fraud.^^^ § 824. Same. Fraudulent representations. Where suit to foreclose a mechanic's lien is brought, and defendant denied the performance of the contract sued on, and sets up another contract for a certain sum, which included extra work sued for by plaintiff upon a quantum meruit count for a balance due, when defendant introduces such contract in evidence, plaintiff may show in rebuttal that he signed it under representations made by defendant, and never in- tended to sign that contract, but supposed he was signing one previously drawn up in lead-pencil, which is not the one sued upon.^^® § 825. Use of materials in building.'^^ It has already been seen that the evidence must show that the materials were used in the building ; ^^^ "' Gamble v. Voll, 15 Cal. 508, 510. See §§ 326 et seq., ante. "« Cumming-s v. Ross, 90 Cal. 68, 71, 27 Pac. Rep. 62. ^" See S§ 87 et seq., ante. Colorado. Secondary evidence of assignment of claim for labor: See Everett v. Hart, 20 Colo. App. 93, 77 Pac. Rep. 254. Utah. Evidence as to dates when first and last materials were furnished was admitted: Morrison v. Inter-Mountain S. Co., 14 Utah 201, 46 Pac. Rep. 1104. "s Houghton v. Blake, 5 Cal. 240, 241. See ■■ Materials," §§ 87 et seq., ante. Colorado. Evidence that materials were to be used in building required: Tabor-Pierce L. Co. v. International T. Co., 19 Colo. App. 108. 75 Pac. Rep. 150. Evidence a.s to quality of material fiirni.slied with reference to sample: See San Miguel Consol. G. M. Co. v. Stubbs (Colo., April 1, 1907), 90 Pac. Rep. 842. Admission by iiiireliaser of use of material in structure prima facie evidence: .See Joralmon v. McPliee. 31 Colo. 26, 71 Pac. Rep. 419. Hawaii. Proof that materials were ordered for a building, and furnislied therefor and delivered thereat, prima facie proof that they were used in the building: Allen v. Redward, 10 Hawn. 151, 158. i'resiimption that materials furnished to lie used 'were used In iMiildiii;^'; and proof that a portion only were so used does not, as a matter of law. destroy the presumption as to the remainder: Allen v. Lincoln, 12 Hawn. 356. § 826 mechanics' liens. 702 are sold under a written contract which is silent as to the use or purpose for which such materials are intended to be put, parol evidence may be admitted to show such purpose, in order to enforce a lien therefor; since such evidence does not contradict nor add any new term to the written con- tract.i^» § 826, Money advanced. Evidence as to money advanced by assignee of subcontractor's interest in last payment, and used by him for work done under the subcontract, with Oklahoma. As to presumption that all material was used in build- ing after delivery of same, and use of some of it, see Blanshard v. Schwartz, 7 Okl. 23, 54 Pac. Rep. 303. Oregon. " To require direct and positive testimony that, as to each specific article delivered, it was in fact used in the buildings, would make the mechanic's-lien law mure of a burden and a trap, than a blessing and a help. When materials are contracted for use in a proposed building, when they are delivered in pursuance of such con- tract, and when the building is in fact completed, and there is no testimony tending to raise even a suspicion that the materials there- for were elsewhere obtained, or that those contracted for were not used therein, and especially when some of the materials are shown to have actually entered into its construction, it is fair to conclude and say that such materials did in fact go into the building, and that the seller has a mechanic's lien therefor": Allen v. Elwert, 29 Oreg. 428, 44 Pac. Rep. 823, 48 Pac. Rep. 54, qnotingr Rice v. Hodge, 26 Kan. 170. Time-checks given by the contractor to the laborer, though not conclusive against the owner of the structure, " are declarations of the defendant's agent in the line of his employment, and are to be considered for what they are worth": Forbes v. Willamette Falls E. Co., 19 Oreg. 61, 23 Pac. Rep. 670, 20 Am. St. Rep. 793. Utah. See, as to the " Oregon doctrine," supra, McCornick v. Sad- dler, 10 Utah 210, 37 Pac. Rep. 332, in which it is held that where a building contractor's only knowledge as to the amount of lumber purchased from a firm, and which went into the construction of a building, was received from certain bills and checks, some of which had been lost, but were correct, and he was not present when all the lumber was delivered, and did not measure it, nor order all of it, his evidence as to such amount is hearsay. AVasbington. Same principle as to time-checks as Oregon case, this note, supra: See Garneau v. Port Blakeley M. Co., 8 Wash. 467, 36 Pac. Rep. 463. Same quotation from Rice v. Hodge, 26 Kan. 170, as- Oregon case, this note, supra: Seattle L. Co. v. Sweeney, 43 Wash. 1, 85 Pac. Rep. 677. "9 Donahue v. Cromartie, 21 Cal. 80, 86. See Neilson v. Iowa E. R. Co., 51 Iowa 184, 186, 1 N. W. Rep. 434, 33 Am. Rep. 124. Colorado. Hearsay evidence: Custom of store with reference to sales and delivery of goods: See Stidger v. McPhee, 15 Colo. App. 252, 62 Pac. Rep. 332. Montana. Evidence as to date of first 'item was held admissible to show right to lien and right to assign lien: Mahoney v. Butte H. Co., 19 Mont. 377, 48 Pac. Rep. 545. 703 EVIDENCE. § 827 the knowledge of contractor, is immaterial, in an action by such assignee of the subcontractor against the contractor.^-" § 827. Questions of fact.^-^ The following are questions of fact : Payment ; ^-- time of completion of building ; ^-^ what constitutes a trivial or trifling imperfection ; ^-* whether the work done after a certain date was to remedy a trifling imperfection;^-^ generally, the sufficiency of a description of property,^^® or sufficiency for identifica- tion ; ^-' the character of occupanc}' ; ^-^ whether the build- "» Pohlman v. Wilcox, 146 Cal. 410, 442, 80 Pac. Rep. 625. ^^ Oregon. As to whether materials affixed are fixtures is a mixed question of law and fact: Matthiesen v. Arata, 32 Oreg. 342, 346, 50 Pac. Rep. 1015, 67 Am. St. Rep. 535. >Va.shiiigtun. Whether architect's decision was just and impartial, question of fact: See Lorjg- v. Pierce County, 22 Wash. 330, 61 Pac. Rep. 142. Fixture, question of fact: See Philadelphia M. & T. Co. v. Miller, 20 Wash. 607, 56 Pac. Rep. 382, 72 Am. St. Rep. 138, 44 L. R. A. 559. Neglect of contractor, question of fact: Novelty M. Co. v. Heinzer- ling. 39 Wash. 244, 81 Pac. Rep. 742. i~ P,arilari v. Ferrea, 59 Cal. 1, 4; Simons v. Webster, 108 Cal. 16, 18, 40 Pac. Rep. 1056. AVa.>«hington. Time at which work on building was completed is a question of fact: See Ellsworth v. Layton, 37 Wash. 340, 79 Pac. Rep. 947. So whether the receiving of a check for the amount of a disputed claim was an acceptance of it as a full settlement, although the check recites that it is, is a question proper to be submitted to the jury, when there is a controversy as to the facts: Megrath v. Gil- more, 10 Wasli. 339. 39 Pac. Rep. 131. »=3 Willamette S. M. Co. v. Kremer, 94 Cal. 205, 208, 29 Pac. Rep. 633; Coss V. MacDonough, 111 Cal. 662, 666, 44 Pac. Rep. 325. See Santa Monica L. & M. Co. v. Hege, 119 Cal. 376. 378, 51 Pac. Rep. 555: Schal- lert-Ganahl L. Co. v. Sheldon (Cal., Feb. 9, 1893), 32 Pac. Rep. 235. '2* Willamette S. M. Co. v. Kremer, supra; Willamette S. M. Co. v. Los Angeles College Co., 94 Cal. 229, 238, 29 Pac. Rep. 629; Coss v. MacDonough, supra; Marble Lime Co. v. Lordsburg H. Co., 96 Cal. 332, 334, 31 Pac. Rep. 164; Bianchi v. Hughes, 124 Cal. 24, 56 Pac. Rep. 610; Santa Monica L. & M. Co. v. Hege, 119 Cal. 376, 378, 51 Pac. Rep. 555 (there was no test by which it could be determined that the building was completed). See Schallert-Ganahl L. Co. v. Sheldon (Cal., Feb. 9, 1893), 32 Pac. Rep. 235. Colorado. Questions of fact: Trifling imperfection; material altera- tions of contract: Stidger v. McPhee, 15 Colo. App. 252, 62 Pac. Rep. 332. ^ Coss V. MacDonough, 111 Cal. 662, 666, 44 Pac. Rep. 325. "« Willamette S. M. Co. v. Kremer, 94 Cal. 205, 209, 29 Pac. Rep. 633. See § 399, ante. "' Union L. Co. v. Simon (Cal. App., March 13, 1906), 89 Pac. Rep. 1077, 1079. '-■» Willamette S. M. Co. v. Los Angeles College Co., 94 Cal. 229, 239, 29 Pac. Rep. 629. § 828 mechanics' liexs. 70 i ing Avas completed ; ^-^ whether there was a continuance of work during a certain period, or a cessation of work for thirty days ; ^^^ whether there was a substantial performance of the contract ; ^^^ whether several mining claims are owned and operated as one mine ; ^^- whether the materials furnished were so affixed to the building as to become a part thereof.^^^ § 828. Questions of law.^34 -q^^^^ whether the plaintiff has a lien/^^ or has complied with the requirements of the provisions of the law/^*' or has filed his claim within the i2« Willamette S. M. Co. v. Los Ang-eles C. Co., 94 Cal. 229. 237. 29 Pac. Rep. 629; Marble L. Co. v. Lordsburg H. Co., 96 Cal. 332, 334, 31 Pac. Rep. 164. Colorado. Or whether it was completed within a reasonable time, when the contract does not specify any particular time of comple- tion: "Walling V. Warren, 2 Colo. 434. "» Marble L. Co. v. Lordsburg H. Co., 96 Cal. 332, 334, 31 Pac. Rep. 164. "1 Harlan v. Stufflebeem, 87 Cal. 508, 512, 25 Pac. Rep. 686: Perry v. Quackenbush, 105 Cal. 299, 306, 38 Pac. Rep. 740; Marble L. Co. v. Lordsburg H. Co., 96 Cal. 332, 334, 31 Pac. Rep. 164. See §§ 806, 801, ante. Montaua. Whether materials furnished or labor performed under one or more original contracts, question of fact: W'estern I. W. v. Mon- tana P. & P. Co., 30 Mont. 550. 77 Pac. Rep. 413. 417. >=2 Hamilton v. Delhi M. Co., 118 Cal. 148, 50 Pac. Rep. 378. "3 Bianchi v. Hughes, 124 Cal. 24, 28, 30, 56 Pac. Rep. 610 (ice-room constructed by lessee); Stevenson v. W^oodward, 3 Cal. App. 754, 86 Pac. Rep. 990. See '■ Questions of Law," § 828, post. Montana. Whether materials were delivered under an entire con- tract or under separate ones, and whether there was a running account between the parties under which the orders were filled, were held to be questions of fact: Helena S. H. & S. Co. v. W'ells, 16 Mont. 65, 40 Pac. Rep. 78. W'a.shington. So whether materials are in good faith designed to be used in the construction of a building: Potvin v. Wickersham. 15 Wash. 646, 47 Pac. Rep. 25; or that the contractors were the "agents" of the owner: Sautter v. McDonald, 12 Wash. 27, 31, 40 Pac. Rep. 418. ^^* See also "Pleading," § 737, ante. Oklahoma. Building, real or personal property, held to be a ques- tion of law, to be determined from the facts: Bridges v. Thoinas, 8 Okl. 620, 58 Pac. Rep. 955. See § 827, ante. 133 Bradbury v. Cronise, 46 Cal. 287, 289; Curnow V. Happy Valley B. G. & H. Co., 68 Cal. 262, 26G, 9 Pac. Rep. 149. In.struotion to jury as to levy of asses-snient being an acceptance of work, question of law: See Gilliam v. Brown, 116 Cal. 454, 48 Pac. Rep. 486. "« Curnow v. Happy Valley B. G. & H. Co.. supra. ^Va.sllin^ton. Likewise, it has been held, whether the inaterials are such as are lienable articles or of a kind or character to be used in the construction of a building: Bolster v. Stocks, 13 Wash. 460, 43 Pac. Rep. 532, 534, 1099. 705 EVIDENCE. §§ 829-831 time required by law,^" or has priority of lien/^^ is a con- elusion of law. Whether a bond is a common-law or a statutory bond is a question of law, not for the witness to determine; and whether claimant relied upon a statutory bond at the time of entering into the contract is imma- terial."' § 829. Value. Valid contract as evidence thereof. Ac- tion on implied contract. A valid building contract is admissible in evidence as proof of the value of materials furnished and services rendered, but is by no means con- clusive on that point, in an action on the implied contract after prevention of performance, and such evidence is to be taken with the other evidence in arriving at such value. '^*'' § 830. Same. Common counts. Where plaintiff has in- troduced evidence showing the complete performance of a valid contract, and that the payment of the money due merely remained, the special valid contract is admissible in evidence, under the common counts, as an admission of the standard of value.^*^ § 831. Same. Contract as evidence of extra work. Ex- press contract. In an action to foreclose the lien, based upon the valid contract, it is conclusive as to the value of the work done under it, and also as to the extra work, so far as it fixes the value; the court saying, "Appellant claims '" Pierce v. Willis, 103 Cal. 91, 93, 36 Pac. Rep. 1080. Washin^on. Contra; it is a question of fact: Johnston v. Har- rington, 5 Wash. 73, 82, 31 Pac. Rep. 316. The true rule seems to be, that the time within wliich the claim should be filed is a question of law, but that the question whether or not the claim was filed within that time is a question of fact. ">" Pacific Mut. L. Ins. Co. v. Fisher, 106 Cal. 224, 236, 39 Pac. Rep 758. See " Answer," §§ 738 et seq., ante. "» Union S. M. Works v. Dodge, 129 Cal. 390, 397, 62 Pac. Rep. 41. See §§ 281 et seq.. and §§ 605 et seq., ante. "" Adams v. Burbank, 103 Cal. 646, 650, 37 Pac. Rep. 640. See Cox V. McLaughlin, 54 Cal. 605, 610. 1" Castagnino v. Balletta, 82 Cal. 250, 259, 23 Pac. Rep. 127. See "Complaint," §§ 673 et seq., ante. Mech. Liens — 45 § 832 mechanics' liens. 706 that there was no evidence of the reasonable value of the work done by the plaintiffs. As the memorandum of the contract between W. and the owner is sufficient, the con- tracts between the contractor and the subcontractors are conclusive, both as to their principal contracts and as to contracts for extra work, so far as they fixed the value. Where the value was not fixed by contract, other proof of value must be made." ^*^ § 832. Same. Void contract. The price of materials agreed upon in a void statutory original contract is now held to be prima facie evidence of their value, "^ at least as far as the owner and contractor are concerned."* At first there was some uncertainty in the decisions as to whether a void original contract is admissible as evidence of the value of the work done and materials furnished. In an action on a quantum meruit, by the original contractor, against the owmer, it was held that the void statutory original contract is not admissible in evidence.^*^ But in an action to foreclose a lien upon the property by subclaimants, where the statu- tory original contract was void, it was said : " To prevent misapprehension, it may be added that if the memorandum filed was not in compliance with the statute, the contract price agreed by the contractor to be paid to the subcon- 1*2 Joost V. SuUivan, 111 Cal. 286, 296, 43 Pac. Rep. 896. See § 832, post. Colorado. See Merriner v. Jeppson, 19 Colo. App. 218, 74 Pac. Rep. 341. "3 Bringham v. Knox, 127 Cal. 40, 44, 59 Pac. Rep. 198. 1" See Laidlaw v. Marye, 133 Cal. 170, 65 Pac. Rep. 391. See §§ 319 et seq., ante. "5 Rebman v. San Gabriel V. L. & W. Co., 95 Cal. 390, 395, 30 Pac 564. It was said (p. 396): "But, even conceding that the void con- tract is merely competent evidence, tending- to prove the value of the labor and materials, but not conclusive, its effect was only to creafe a conflict with other evidence tending to support the finding in ques- tion." Q,ucere: Might it not have been admissible as an admission of value? Compare also Kuhlman v. Burns, 117 Cal. 469, 49 Pac. Rep. 585. See following note. Rule of Rebman v. San Gabriel V. L. & M. Co., supra, was over- ruled by Laidlaw v. Marye, 133 Cal. 170, 65 Pac. Rep. 391 (so far as relates to subclaimants). See §§ 319 et seq., ante. ii 707 EviDENcia. § 832 tractors is evidence of value ; but such evidence may be rebutted." ^*^ Under a void statutory original contract, plaintiff's testimony as to the reasonable value of certain work, and as to his knowledge of the charge of persons engaged in the business, for similar work, is admissible, and relevant and material, in an action in assumpsit.^*^ Where the statutory original contract is void, an averment in the complaint of a subclaimant as to the contract price for materials is prima facie evidence of their value, and need "8 Joost V. SuUivan, 111 Cal. 286, 296, 43 Pac. Rep. 896 (dictum), citing- Booth v. Pendola, 88 Cal. 36, 41, 44, 23 Pac. Rep. 200, 24 Pac. Rep. 714, 25 Pac. Rep. 1101, in wiiicli it was held that the contract price agreed upon between the contractor and material-man and laborers is prima facie evidence of value of the materials furnished and labor performed, where the statutory original contract is void. This case was not noticed in Willamette S. M. Co. v. Los Angeles Col- lege Co., 94 Cal. 229, 236, 240, 29 Pac. Rep. 629, a suit to foreclose a lien on the property by subclaiinazits, in which it was said: " It [the void statutory original contract] cannot be the basis of a recovery by the contractor against the owner, nor can it be looked to for the purpose of determining the amount for which the owner is liable, or when any payment is to be made. In any action against him by a laborer or material-man, their riglits are to be determined by other rules, and irrespective of any provision of such contract. . . . Ina.s- much as by a failure to file the contract in the recorder's office it became wholly void, it was not available as a defense for any pur- pose, either to determine the amount of the contract price, or to limit the liability of the appellant [the owner], or as the foundation of a right to complete the building according to its terms." Also quoted in Rebman v. San Gabriel Valley L. & W. Co., 95 Cal. 390, 30 Pac. Rep. 564. See also §§ 319 et seq., ante. In Booth V. Pendola, supra, it was said: " The contract between the owner and Hamilton [the contractor] was never filed for record. It was void; and, while it is doubtless true that the contract price agreed upon between Hamilton, the agent of the owner, and the material- men and laborers, is prima facie evidence of the value of the materials furnished and labor performed, and would support a finding of value, we think that an allegation and a finding on the subject are essential to support a judgment in actions of this character. . . . Appellant con- tends that there is no sufficient finding of the value of the materials and labor furnished by two of the lien claimants. But the court finds that they were employed by Hamilton, the contractor, at a certain price; and as, under the code, Hamilton was the agent of the owner, we think that this was sufficient." See "Agency," §§ 572 et seq., ante. Colorado. Charles v. Hallack L. & M. Co., 22 Colo. 283. 43 Pac. Rep. 548 (the contract is prima facie evidence of value as against the owner). "' Camp v. Behlow, 2 Cal. App. 699, 702, 84 Pac. Rep. 251, not fol- lo^Tint; Kuhlman v. Burns, 117 Cal. 469. 49 I'ac. Rep. 58.'). on this point, declaring it to be no longer the law. See Laidlaw v. Marye, 133 Cal. 170, 65 Pac. Rep. 391. § 833 mechanics' liens. "^OS not be proven at the trial, when the allegation is not specially demurred to, nor denied in the answer/*^ § 833. Same. Market price. Usual price. A general rule relating to value is, that proof of the market price is evidence of the value of the materials.^*^ Usual price. Where the claim of lien states that the price agreed upon was " the usual price, and what said materials were reasonably worth at their place of business," it states, in legal effect, a contract that the materials were to be paid for on delivery at what they were reasonably worth, and is sufficiently sustained by proof that the materials contracted for were furnished on orders of the architects and used in the building, and were reasonably worth a certain sum; and it is not necessary to prove an express agreement to pay the usual price, and what said materials were reasonably worth, at the claimants' place of business. ^^° "» Although an averment of evidence of the fact, rather than the uUlmate fact itself: Bringham v. Knox, 127 Cal. 40, 45, 59 Pac. Rep. 198, citing Russ L. & M. Co. v. Garrettson, 87 Cal. 589, 25 Pac. Rep. 747; Amestoy v. Ellectric R. T. Co., 95 Cal. 311, 30 Pac. Rep. 550; Mul- lally V. Townsend, 119 Cal. 47, 52, 50 Pac. Rep. 1066. Followed: Carpenter v. Furrey, 128 Cal. 665, 669, 61 Pac. Rep. 369; Anderson v. Bank of Lassen County, 140 Cal. 695, 699, 74 Pac. Rep. 287. Objections going to sntliciency of statement of facts, and not to the facts themselves, must be by special demurrer, pointing out the defects complained of: Mullally v. Townsend, 119 Cal. 47, 52, 50 Pac. iiep. 1066. See Himmelmann v. Spanagel, 39 Cal. 401, 402; Tehama County V. Bryan, 68 Cal. 57, 59, 8 Pac. Rep. 673; Harnish v. Bramer, 71 Cal. 155, 158, 11 Pac. Rep. 888; Grant v. Sheerin, 84 Cal. 197, 200, 23 Pac. Rep. 1094; Amestoy v. Electric R. T. Co., 95 Cal. 311, 314, 30 Pac Rep. 550. 8anie. General demurrer will not reach the defect: Tehama County V. Bryan, 68 Cal. 57, 59, 8 Pac. Rep. 673; Harnish v. Bramer, 71 Cal. 155, 158, 11 Pac. Rep. 888; see Grangers' Business Assoc, v. Clark, 84 Cal. 201, 23 Pac. Rep. 1081; Grant v. Sheerin, 84 Cal. 197, 200, 23 Pac. Rep. 1094; Ryan v. Jaques, 103 Cal. 280, 284, 37 Pac. Rep. 186; Mullally v. Townsend, 119 Cal. 47, 52, 50 Pac. Rep. 1066; Larkin v. Mullen, 128 Cal. 449, 453, 60 Pac. Rep. 1091; Buckman v. Hatch, 139 Cal. 53, 60, 72 Pac. Rep. 445. 1" Santa Monica L. & M. Co. v. Hege, 119 Cal. 376, 380, 51 Pac. Rep. 555. Idaho. Conflict as to evidence of contract price under express con- tract, evidence of actual cost admissible: See Lewis v. Utah Const. Co., 10 Idaho 214, 77 Pac Rep. 336. 1^ Reed v. Norton, 90 Cal. 590, 597, 26 Pac. Rep. 767, 27 Id. 426. AVashington. Value of material not equal to contract, but shown approximately, as defense: See Kruegel v. Kitchen, 33 Wash. 214, 74 Pac. Rep. 373, 375. 709 EVIDENCE. § 831 § 834. Same. Other evidence of value. The time reason- ably necessary to be occupied in performing the services is one of the facts and circumstances to be considered in de- termining the value of the services of an architect ; ^^^ and a subsequent agreement to pay a certain sum is evidence of the reasonable value of services, where the contract is im- plied.^^^ The evidence of experts as to value is admissible.^^^ "1 Ehlers V. W^annack, 118 Cal. 310, 311, 50 Pac. Rep. 433. J" W^ebb V. Kuns (Cal., July 25, 1898), 54 Pac. Rep. 78. 1" Ehlers v. Wannack, 118 Cal. 310, 311, 50 Pac. Rep. 433. Expert evidence as to the value of work, putting together the bottoms of caissons: Pacific R. M. Co. v. English, 118 Cal. 123, 130, 50 Pac. Rep. 383. Idaho. See American B. Co. v. Regents of University, 11 Idaho 163, 81 Pac. Rep. 604, 612. § 835 mechanics' liens. 710 CHAPTER XXXIX. VARIANCES. § 835. Variances. Generally. § 836. Claim of lien. Pleadings. Proof. Generally. § 837. Claim of lien. Pleadings. Material variances. § 838. Same. Persons contracting. Husband and wife. § 839. Same. Immaterial variances. § 840. Same. Valid, void contract. Owner purchasing directly. § 841. Same. Description of property. § 842. Same. Payments. § 843. Claim of lien and proof. Generally. § 844. Same. Material variances. § 845. Same. Time of payment. § 846. Same. Nature of labor. § 847. Same. Deducting credits and offsets. Amount paid. § 848. Same. Immaterial variances. § 849. Same. Person contracting. § 850. Same. Contract. Date of contract. § 851. Same. Implied contract. Express contract. § 852. Same. Nature of work. § 853. Pleading and proof. Generally. § 854. Same. Material variances. Contract. § 855. Same. Valid, void contract. Contracting directly with owner or agent. § 856. Same. Indefinite contract. § 857. Same. Person contracting. § 858. Same. Nature of work. § 859. Same. Fund. Contractual indebtedness. § 860. Same. Immaterial variances. § 861. Same. Time of payment. § 862. Same. Subclaimant. Owner's employee. § 863. Same. Bond. Signed by principals. Unsigned. § 835. Variances.^ Generally. A variance between the claim of lien and proof differs greatly in its results from a variance between the claim of lien and the pleadings ; for ' See, generany, "Claim," §§361 et seq., ante; especially, "Mis- take and Error," §§412 et seq., ante, and "Complaint," §§672 et seq., ante. See Kerr's Cyc. Cede Civ. Proc, Stats, and Amdts. 1906-07, § 1203a. 711 ARiANCEs. §§ 836, 837 the latter may be amended to conform to the evidence, while the former may not. The effect of error in the claim of lien has already been considered at some length,- and the effect of the new provision of 1907, adding section twelve hundred and three a,^ has been dwelt upon elsewhere,* and will not be repeated in this place. § 836. Claim of lien. Pleadings. Proof. Generally. A statement in the claim, which is not required to be made by the statute, and which is erroneous, will not form the basis for a material variance.^ As a general rule, where the vari- ances between the evidence on the one hand, and the com- plaint and claim of lien on the other, are trifling, and do not go to any matter of substance, and could not have misled the opposing party in kny way, to their injury, they are not fatal." The contract " stated in the claim of lien must be the same in all essentials as that alleged in the complaint.^ § 837. Claim of lien. Pleadings. Material variances.^ In accordance with the rule stated in the preceding section, before the enactment of section twelve hundred and three a in 1907, the following have been held to be material vari- ances. Colorado. Variance, where claim sets up contract with considera- tion, and complaint without consideration: Harris v. Harris, 9 Colo. App. 211, 219, 47 Pac. Rep. 841. As to variance, claim and complaint, see Harris v. Harris, IS Colo. App. 34, 69 Pac. Hep. 309. As to variance between claim of lien and notice of intention to claim lien, Immaterial (agreed and reasonable value): See Chicago L. Co. V. Newcomb, 19 Colo. App. 265, 74 Pac. Rep. 786, 791. 2 §§ 412 et seq., ante. 3 Kerr's Cyc. Code Civ. Proc, Stats, and Amdts. 1906-07, § 1203a. < §§ 412 et seq., ante. '^ Slight V. Patton, 96 Cal. 384. 386, 31 Pac. Rep. 248. « Macomber v. Bigelow, 126 Cal. 9. 16, 58 Pac. Rep. 312. ' Material variances: See Boscow v. Patton, 136 Cal. 90, 68 Pac. Rep. 490, explaining Santa Monica L. & M. Co. v. Hege, 119 Cal. 376, 51 Pac. Rep. 555, and Wilson v. Nugent, 125 Cal. 280, 57 Pac. Rep. 1008. " See San Pedro L. Co. v. West, 3 Cal. App. 757, 86 Pac. Rep. 993 (contract for all materials for building). » Malone v. Big Flat G. M. Co., 76 Cal. 578, 581, 18 Pac. Rep. 772. But see Star M. & L. Co. v. Porter (Cal. App., Nov. 24, 1906), 88 Fac. Rep. 497, 499. §§ 838, 839 mechanics' liens. 712 Express and implied contract. It is a material variance if the complaint is on a quantum meruit, and the contract stated in the claim is for a fixed price." Work. Work and materials. If the claim is for work, and the complaint is for work and materials, it is a material variance.^^ § 838. Same. Persons contracting. Husband and wife. Likewise if the claim states that the contract was made with the wife with the knowledge, consent, and acquiescence of the husband, it not being his contract, and the complaint alleges that the contract was made with the defendants, husband and wife, it is a material variance.^^ § 839. Same. Immaterial variances. The following have been held to be immaterial variances. Valid, void contract. Contractor as agent of owner. There is no fatal variance between the claim of lien and the complaint, where the claim treats the original contract as valid, and states that the contractor purchased the materials both as contractor and as agent of the owner, while the complaint alleged that the statutory original contract was void for want of filing, and that the contractor purchased the materials as agent of the owner only.^^ " Malone v. Big Flat G. M. Co., 76 Cal. 578, 581, IS Pac. Rep. 772; Russ L. & M. Co. V. Garrettson, 87 Cal. 589, 596, 25 Pac. Rep. 747. Montana. But otherwise where the complaint alleged the price as being both the agreed price and the reasonable value, and the account stated a certain amount as per agreement and another amount as the reasonable value: Bardwell v. Anderson, 18 Mont. 528, 46 Pac. Rep. 443. " Wagner v. Hansen, 103 Cal. 104, 106, 37 Pac. Rep. 195. 12 Palmer v. Lavigne, 104 Cal. 30, 34, 37 Pac. Rep. 775. Oregon. See, as variance, name of purchaser: Osborn v. Logus, 28 Oreg. 302, 38 Pac. Rep. 190, 42 Pac. Rep. 997. Utah. But it was held no material variance, where the claim states that the materials furnished and labor performed were in pursuance of a contract made by claimants w'ith " Braun, Carrol, and Kern, and A. Nink," who were the principal contractors, employed by the owner, Clift, and the complaint alleged that claimant, "at the request of Clift and his architects, Carrol and Kern, furnished material," etc.: Culmer v. Clift, 14 Utah 286, 47 Pac. Rep. 85. Washin^on. But see, contra, Powell v. Nolan, 27 Wash. 318, 67 Pac. Rep. 712. " Reed v. Norton, 90 Cal. 590, 598, 26 Pac. Rep. 767, 27 Pac. Rep. 426. See Mclntyre v. Trautner, 63 Cal. 429. 713 VARIANCES. §§ 840-843 § 840. Same. Valid, void contract. Owner purchasing directly. It is an immaterial variance where a subclaimant's claim sets up an original contract, and the complaint against the owner avers facts showing that the contract with the owner was void, and that he is deemed, under the statute, to have furnished the materials and labor at the personal instance and request of the owner.^* § 841. Same. Description of property. The variance is immaterial where the claim described property sufficient to embrace the entire building, and the complaint described property less in extent ; ^^ or where the claim describes a building as situated upon a portion of the land, and the complaint describes the building as situated upon the entire lot.i« § 842. Same. Payments. It is an immaterial variance where the claim correctly states that one hundred dollars of the contract price was to be paid upon completion and the balance thirty days after the completion of the building, and the complaint states that three fourths of the contract price was to be paid during the progress of the work and the balance thirty-five days after the completion, as the mistake in the complaint could not have misled the defendant.^^ § 843. Claim of lien and proof.^* Generally. It has been held that the effect of a variance between the pleading and " Coss V. MacDonough, 111 Cal. 662, 667, 44 Pac. Rep. 325; Davies- Henderson L. Co. v. Gottschalk, 81 Cal. 641, 647, 22 Pac. Rep. 860. " WiHamette S. M. Co. v. Kremer, 94 Cal. 205, 211, 29 Pac. Rep. 633. See "Description," g§ 399 et seq., ante; §§ 717 et seq., ante. '« Brunner v. Marks, 98 Cal. 374, 377, 33 Pac. Rep. 265. See " Description," §§ 399 et seq., ante; §§ 717 et seq., ante. Oregon. Or where the claim describes the land as being- in " Car- ter's Addition," and the complaint avers that it is in " Market Street Addition": Joshua Hendy Machine Works v. Pacific Cable Const. Co., 24 Oreg. 52, 33 Pac. Rep. 403. AVaxhlngrton. Or where the complaint differed from the claim only as to the number of the house, the description being otherwise sufll- cient: Griffith v. Maxwell, 20 Wash. 403, 55 Pac. Rep. 571. " Webb V. Kuns (Cal., July 25, 1898), 54 Pac. Rep. 78, 79. See §§ 845, 861, post. " See "Claim," §§ 379 et seq., and §§ 706 et seq., ante. As to variance between claim and evidence, see Jones v. Kruse, 138 Cal. 613, 617, 618. 72 Pac. Rep. 146 (value of material, including cart- § 844 mechanics' liens. 714 the proof generally is not governed by the same rules as in the case of a variance between the claim of lien and the proof. The claim of lien must contain a correct statement of the facts required by the statute, and unless so stated, no lien can be enforced; while a variance between the com- plaint and the proof is otherwise not material, unless the adverse party has been misled thereby to his prejudice. ^^ But, as the claim of lien is only a link in the chain of evi- dence to sustain the lien, the status of the claim, after it has been fixed by construction, should, in reason, be viewed as any other piece of evidence. § 844. Same. Material variances. The following have been held to be material variances between the claim of lien and the proof. Agreed price. Reasonable value. The variance is fatal, where the claim of lien states that the work was done at an agreed price, and the evidence showed a contract to pay the reasonable value of the services ; -° or where the claim stated an agreement to pay the then prevailing list price, and that no terms for payment were specially agreed to, and the finding was that there was no agreement to pay the list price, or any particular price, but that the material should be paid for upon completion of the house. -^ Likewise where the claim states nothing as to the reasonable or other value or agreed price of the work and materials, except the agreed ag-e); Macomber v. Bigelow, 126 Cal. 9, 15, 58 Pac. Rep. 312; Wilson v. Nugent, 125 Cal. 280, 284, 57 Pac. Rep. 1008 (explaining- and quoting from Santa Monica L. & M. Co. v. Hege, 119 Cal. 376, 51 Pac. Rep. 555); Bryan v. Abbott, 131 Cal. 222, 224, 225, 63 Pac. Rep. 363 (owner and reputed owner; time of payment); Georges v. Kessler, 131 Cal. 183, 185, 186, 63 Pac. Rep. 466 (work and materials); San Pedro L. Co. v. West, 3 Cal. App. 757, 86 Pac. Rep. 993 (contract for all materials for building). " Santa Monica L. & M. Co. v. Hege, 119 Cal. 376, 380, 51 Pac. Rep. 555. See Star M. & L. Co. v. Porter (Cal. App., Nov. 24, 1906), 88 Pac. Rep. 497, 499. See "Claim," §§ 361 et seq., ante. 2" Jones V. Shuey (Cal., April 3, 1895), 40 Pac. Rep. 17. Utah. But see Sandberg v. Victor G. & S. M. Co., 24 Utah 1, 66 Pac. Rep. 360 (express proi.nise the same as the law implies, no variance). 21 Nofziger Bros. L. Co. v. Shafer, 2 Cal. App. 219, 220, 83 Pac. Rep. 284. Arizona. No variance: claim, agreed price; complaint, agreed price; evidence, no specified price; See W^olfley v. Hughes (Ariz., March 20, 1903), 71 Pac. Rep. 951. II 715 VARIANCES, § 844 price as to part of the work, aud the contract is entire, and the evidence shows that, except as to one small item, there was no agreed price for the work ; -^ or where the claim states that claimant was to receive the reasonable market value, and the evidence shows a fixed price; -^ or where the claim showed a contract that the claimant was to be paid for the labor done and materials furnished at what they were reasonably worth, to be paid for when the work ceased, and the proof showed an express contract for a fixed amount, and that claimant partialh^ performed, and stopped, owing to the refusal of the owner to pay him ; -* or where the claim shows a contract that claimant was to be paid the reasonable value -of the materials furnished, and that an order for the amount due, signed by the original contractor, and indorsed by the owner, was to be delivered to the claimant by the subcontractor upon accfeptance of the building, and the proof showed that the materials were bought at a fixed price, and on his own credit, and there was no agreement in regard to an order on the owner, or that claimant was to be paid out of the contract price.^^ -=' Wagner v. Hansen, 103 Cal. 104, 107, 37 Pac. Rep. 195. See Star M. & L. Co. V. Porter (Cal. App., Nov. 24, 1906), 88 Pac. Rep. 497, 499. " Wilson V. Nugent, 125 Cal. 280, 283, 57 Pac. Rep. 1008; Buell v. Brown, 131 Cal. 158, 162, 63 Pac. Rep. 167. See Star M. & L. Co. v. Porter (CaJ. App., Nov. 24, 1906), 88 Pac. Rep. 497, 499, attempting to distinguish Wilson v. Nugent, supra, and other cases. CoIora«1o. Claim and evidence; small difference in amount injuring no one, no variance: Chicago L. Co. v. Newcomb, 19 Colo. App. 265, 74 Pac. Rep. 786. See Cannon v. Williams, 14 Colo. 21, 23 Pac. Rfep. 456. -* Reed v. Norton, 90 Cal. 590, 595, 26 Pac. Rep. 767, 27 Id. 426. See McClain v. Hutton, 131 Cal. 132, 142, 61 Pac. Rep. 273, 63 Id. 182, 622; Wilson v. Hind, 113 Cal. 357, 359, 45 Pac. Rep. 695 (as to time of pay- ment). Claim. Bxtras at no agreed price, upon implied contract; evi- dence, express contract; variance: Linck v. Johnson, 134 Cal. xix, 66 Pac. Rep. 674. But in Star M. & L. Co. v. Porter (Cal. App., Nov. 24, 1906), 88 Pac. Rep. 497, 499, where the claim was based on the implied contract, and the evidence showed an express contract, it was held no variance, the court attempting to distinguish Reed v. Norton, supra, and other cases cited, on the ground tliat in those cases it did not appear that the fixed price was also the market price, and, in the absence of such evidence, the claim would be substantially false and misleading. =2 Wilson v. Hind, 113 Cal. 357, 359, 45 Pac. Rep. 695. See Reed v. Norton, 90 Cal. 590, 595, 26 Pac. Rep. 767, 27 Id. 426; McClain v. Hutton, 131 Cal. 132, 142, 61 Pac. Rep. 273, 63 Id. 182, 622 (as to time of pay- ment). §§ 845-847 mechanics' liens. 716 § 845, Same. Time of payment. Where the evidence shows that there is no specific agreement as to time of pay- ment, and the claim states that a certain portion of the mate- rials was to be paid for in sixty days, and the finding was that all the materials were to be paid for in that time, there is a variance, as to the terms of the contract, between the claim and evidence and findings.^® § 846. Same. Nature of labor. It is a material variance, where the claim leaves it uncertain whether the contract was to erect and furnish materials for one building or two, and the evidence shows that the contract, and the work actu- ally performed, was to raise up and move back and repair two houses, and furnish materials therefor.^^ § 847. Same. Deducting credits and ofifsets. Amount paid. The variance has been held material, and also imma- terial, where the complaint states that the " amount of the contract price of said lumber and materials furnished as aforesaid is two hundred and forty-four dollars and fifty cents, and that no part thereof has been paid," and the evi- dence showed that the contract price was four hundred and nineteen dollars and fifty-nine cents, and one hundred and seventy-five dollars had been paid thereon.-^ 2« McClaln v. Hutton, 131 Cal. 132, 142, 61 Pac. Rep. 273, 63 Id. 182, 622. See Wilson v. Hind, 113 Cal. 357, 359, 45 Pac. Rep. 695; Reed v. Norton, 90 Cal. 590, 595, 26 Pac. Rep. 767, 27 Id. 426. See § 861, post. " Eaton V. Malatesta, 92 Cal. 75, 28 Pac. Rep. 54. See Ward v. Crane, 118 Cal. 676, 678, 50 Pac. Rep. 839. Compare: Newell v. Brill, 2 Cal. App. 61, 83 Pac. Rep. 76. See " Nature of Labor," S§ 130 et seq., ante. Washington. So where the claim set forth as the contract, that " the claimant agreed to furnish the lumber material to be used in the construction, erection, and completion " of a certain building, and the proof showed that the contract was made after the building ^.•as commenced, for the lumber for its completion: United States Sav. L. & B. Co. V. Jones, 9 Wash. 434, 37 Pac. Rep. 666. ** Santa Monica L. & M. Co. v. Hege, 119 Cal. 376, 381, 51 Pac. Rep. 555. But in a later case, in the court of appeals, it was held that where the balance stated to be due in the claim of lien is found by the court to be the amount remaining unpaid, the fact that material of a certain value was furnished, for none of which tlie claimant was paid, where 717 VARiANCEa. §§ 848, 849 § 848. Same. Immaterial variances. The variance has been held to be immaterial in the following cases. Name of owner or reputed owner. Where the claim states that a certain person is owner and reputed owner, and the evidence shows that such person is the reputed owner only ; -^ where the claim states that the materials were furnished to A. & Co., and the evidence shows that they were furnished to A.^'' § 849. Same. Person contracting. The variance is im- material where the claim states that the claimants furnished the materials to the contractor, and that they were employed by both the contractor and the owner to furnish the same, and, according to the evidence, that they first agreed to fur- nish the materials to the owner, and that they were used in the building being erected by the contractor, and for which he purchased them from claimants, and that the contractor, by giving an order for payment on the owner, which was paid by the latter, admitted his liability therefor, no injury having resulted to the owner.^^ Agency of contractor. Where the claim states that T., as contractor, and as agent for and in behalf of the owner, entered into a contract with plaintiff, and there was evidence of express agency to employ the plaintiff, there is no material varianee.^^ the evidence shows a different amount furnished, upon which pay- ments have been made, does not constitute a variance: Star M. & L. Co. V. Porter (Cal. App., Nov. 24, 1906), 88 Pac. Rep. 497, 498. See § 850, post. =» Kelly V. Lemberger (Cal., Sept. 15. 1896), 46 Pac. Rep. 8. See "Names," §§379 et seq., ante. Colorado. Name of contractor: See Bitter v. Mouat L. & I. Co., 10 Colo. App. 307, 51 Pac. Rep. 519 (1883). Washington. Husband and wife: See Powell v. Nolan, 27 Wash. 318, 67 Pac. Rep. 712, 720; Bolster v. Stocks, 13 Wash. 460, 43 Pac* Rep. 532, 534, 1099. 3« Tlbbetts V. Moore, 23 Cal. 208, 215. See Davis v. Livingston, 29 Cal. 283; Presbyterian Church v. Santy, 52 Kan. 462, 465, 34 Pac. Rep. 974; Brown v. Welch, 12 Hun (N. Y.) 582. 31 Reed V. Norton, 90 Cal. 590, 596, 26 Pac. Rep. 767, 27 Pac. Rep. 426. See Corbett v. Chambers. 109 Cal. 178, 185, 41 Pac. Rep. 873; Central etc. Co. v. Condon, 67 Fed. Rep. 108. 3=' Mclntyre v. Trautner, 63 Cal. 429, 431. Haivail. See Allen v. Reist, 16 Hawn. 23. §§ 850, 851 mechanics' liens. 718 § 850. Same. Contract.^^ Date of contract. The vari- ance is not so material as to be fatal, where the claim states the date of the contract incorrectly, and the evidence shows a difference of two years in the date of the contract.^* Interest after maturity. Where the claim set forth that the agreement as to each item tixed payment therefor sixty days after purchase, and if not paid within said time, to draw interest, and the evidence failed to show any agreement as to interest, and the court found that the claim contained a true statement of the demand, it was held to be no vari- ances^ Current market price. Regular market price. Where the claim stated that the terms of the contract were the " current market price," and the testimony showed that the terms were the " regular market price," there is no variance.^® § 851. Same. Implied contract. Express contract. It is no material variance, where the claim correctly sets forth an agreement to pay the market or reasonable value, and the evidence also shows a subsequent agreement to pay a fixed price as the ascertained market price or reasonable value.s'' ^^ W^hether the full amount of the contract price Is stated with credits, or the true amount due after deducting credits, is immaterial, provided tlie facts are correctly stated: Star M. & L. Co. v. Porter (Cal. App., Nov. 24, 1906), 88 Pac. Rep. 497. "In this respect the case differs from that of Santa Monica L. & M. Co. v. Hege, 119 Cal. 376, 381, 51 Pac. Rep. 555, where there was a false statement of the contract in this respect." The complaint alleged the furnishing of material of the value of $132, on which nothing had been paid, and the proof showed the furnishing of material of the value of $212, on which $80 had been paid. But see § 847, ante. " Pacific Mut. L. Ins. Co. v. Fisher, 109 Cal. 566, 568, 42 Pac. Rep. 154 (the terms and conditions of the contract, which are the essential elements contemplated by the statute to be stated, being correctly set forth). s» McClain v. Hutton, 131 Cal. 132, 136, 61 Pac. Rep. 273, 63 Id. 182, 622. 3« Webb V. Kuns (Cal., July 25, 1898), 54 Pac. Rep. 78. Claim, extra worli; no evidence: See Newell v. Brill, 2 Cal. App. 61, 63, 83 Pac. Rep. 76 (amendment of complaint). " San Pedro L. Co. v. West, 3 Cal. App. 757, 86 Pac. Rep. 993. Where complaint and- claim stated that plaintiff was to be paid reasonable sum for any extra work, and i-t is found that this is true, and, in addition, that plaintiff performed all the extra work men- tioned in tlie complaint, and fully completed the same, and the same II 719 VARIANCES. §§ 852, 853 § 852. Same. Nature of work. It is an immaterial variance, where the claim stated that the contract was to do all the work and furnish all the materials necessary to com- plete all of the plumbing-work of the building, and the evi- dence showed an agreement to do the gas-fitting and plumb- ing, there beiug a close kinship between gas-fitting and plumbing, and no one could be misled thereby.^^ § 853. Pleading and proof.^'' Generally. The technical doctrine of variances of the common law has no application to variances between the pleadings and the proof, or find- ings, under existing practice ; and, under the broad rules of pleading and liberal right of amendment under the Cali- fornia codes, substantial justice is sought, regardless of tech- nical forms ; and the actual misleading of the adverse party to his prejudice is the fundamental rule.*" was accepted by the defendants (stating the thiie), and defendants agreed to pay therefor a definite sum, this wiU sustain the aUegations in the complaint, since this is not a finding- that the work was done under a contract for an agreed price: Santa Monica L. & M. Co. V. Hege, 119 Cal. 376, 380, 51 Pac. Rep. 555. See McClain v. Hutton, 131 Cal. 132, 136. 63 Pac. Rep. 182, 61 Id. 273, 63 Id. 622. Utah. See Sandberg v. Victor G. & S. M. Co., 24 Utah 1, 66 Pac. Rep. 360, 365. See § 860, post. ^ Newell V. Brill, 2 Cal. App. 61, 62, 83 Pac. Rep. 76. See ■• Nature of Labor," §§ 130 et seq., ante. ^V's^.sllin8•ton. And it is immaterial, where the claim is for material used in the construction and completion of a one-story refrigerating- machine building and boiler-house, and the proof shows that there were two buildings which are substantially one, there being an old boiler-house on the grounds, which was overhauled and rebuilt sub- stantially, and substantially connected with the refrigerator-macliine building, there being no chance for mistake as to the identity of the structures: Peterman v. Milwaukee B. Co., 11 Wash. 199, 39 Pac. Rep. 452. •" As to variance betweeo evidence and complaint, see Macomb er V. Bigelow, 126 Cal. 9, 15, 58 Pac. Rep. 312; Georges v. Kessler, 131 Cal. 183, 185, 186, 63 Pac. Rep. 466 (no variance). See "Variances," §§835 et seq., ante; "Complaint," §§670 et seq., ante; "Evidence," §§764 et seq., ante. *" See Kerr's Cyc. Code Civ. Proc, § 469, and note. Idalio. Variance between pleadings and proof immaterial, unless adverse party prejudiced: Lewis v. Utah Const. Co., 10 Idaho 214, 77 Pac. Rep. 336. AVasiiiugton. Ernst v. Fox, 26 Wash. 526, 67 Pac. Rep. 258; Olson v. Snake River V. R. Co., 22 Wash. 139, 60 Pac. Rep. 156. Test of departure in pleading: See Childs L. & M. Co. V. Page, 28 Wash. 128, 68 Pac. Rep. 373 (contract, legal effect, in hrec verba). Lower contract price siiown; no variance: Irby v. Pliillips, 40 Wash. 618, 82 Pac. Rep. 931. §§ 854-856 mechanics' liens. 720 § 854. Same. Material variances. Contract. Where the contract alleged in the complaint differs in substance from that proved or found by the court, the variance is fatal.*^ Agreed price. No price agreed. Or where the plaintiff alleged an express contract at an agreed price, and the evi- dence shoAved that there was no agreed price ; *' or that there was a contract for the reasonable value, less than the express price alleged.*^ § 855. Same. Valid, void contract. Contracting directly with owner or agent. In an action to enforce the lien of a mechanic or material-man, the complaint must show, either that the building was constructed under a valid statutory original contract, or that it was not ; and a complaint upon one theory will not support a judgment rendered upon another. So where the complaint is based upon the theory that the statutory original contract was void, and that the claimant dealt directly with the owner, and that he was liable for the whole of their claims, a judg- ment is not supported, which is based upon findings that these allegations are not true, that the statutory original contract was valid, and that the claimants dealt directly, not with the owner, but with the contractor.** § 856. Same. Indefinite contract. Where the complaint alleged a contract to grade the " south half of Chestnut Street," between certain streets, and the evidence showed a contract between the contractor and certain owners of « Cox V. McLaughlin, 63 Cal. 196, 207. See " Contract," §§ 798 et seq., ante. *2 Wagner v. Hansen, 103 Cal. 104, 107, 37 Pac. Rep. 195. See Star M. & L. Co. V. Porter (Cal. App., Nov. 24, 1906), 88 Pac. Rep. 497, 499. See § 851, ante. ^ Jones V. Shuey (Cal., April 3, 1895), 40 Pac. Rep. 17 (the claim of lien corresponding with the allegations of the complaint). " Reed v. Norton, 99 Cal. 617, 620, 34 Pac. Rep. 333. But see discussion, "Contract," §§689 et seq., §§798 et seq., §§807 et seq., ante; and "Complaint," §§687, 691, 692, 697, 698, ante. In Parker v. Savage Placer Mining Co., 61 Cal. 348, where the original contract was valid, and the complaint of the subclaimant alleged that the plaintiff performed labor at tlie special instance and request of the owner, and the proof showed that the plaintiff was employed by the contractor, it was held no variance. 721 VARIANCES. §§ 857-859 property fronting on " Chestnut — 1/2 street," that the con- tractor was to perform the work " in front of the property here represented," and grade the same to the official line and grade, the variance is fatal, tlie contract proved being too uncertain and indefinite.*^ § 857. Same. Person contracting. And it is a material variance, where the complaint alleges only that materials were furnished to the contractor, and the proof and find- ings are that the materials were bought by the owner directly from the plaintiffs.'*® Agency. Where the complaint alleges one person to be the owner, and that the plaintiff was employed by his agent, and the proof shows that the latter w^as not the agent of the owner, it is a material variance.*^ § 858. Same. Nature of work. It is a material variance, where the complaint sets forth a contract whereby plaintiff agreed to furnish the material and erect for defendant a cer- tain building, and the evidence shows that the contract, and the work actually performed, was to raise up, move back, and repair two houses, and furnish materials therefor.*^ § 859. Same. Fund. Contractual indebtedness. It is a material variance, where a complaint for materials alleges that the balance of the contract price is still in the hands of the owner of the building, and bases the right of the recovery on that ground alone, and the proof shows that there is a mere assumption by the owner of the debt, or his agreement « Rauer v. Fay, 110 Cal. 361, 42 Pac. Rep. 902. See Rauer v. Welsh (Cal., Dec. 10, 1895), 42 Pac. Rep. 904. See "Contract," §§387 et seq., ante; "Description," §§399 et seq., ante. « Gibson v. Wheeler, 110 Cal. 243, 245, 42 Pac. Rep. 810. See "Com- plaint," §§ 692 et seq., ante. Ha^vaii. Variance, contract with owner alleged; subcontract proved: Allen v. Reist, 16 Hawn. 23. " Eaton V. Rocca, 75 Cal. 93, 96, 16 Pac. Rep. 529. See Hooper v. Flood, 54 Cal. 218. See "Complaint," §§692 et seq., ante. ** Eaton V. Malatesta, 92 Cal. 75, 28 Pac. Rep. 54. See Ward v. Crane, 118 Cal. 676, 50 Pac. Rep. 839. Mech. Liens — 46 §§ 860, 861 mechanics' liens. 722 to pay such debt, which would not create or carry a right of lien.*^ § 860. Same. Immaterial variance. It has been held that there is no material variance in the following cases. Express price. Reasonable value. Where the subelaim- ant's complaint avers that the owner, through her agent, hired claimants at certain specified wages per day, and the court finds that all the amounts for which the judgment was given were " the reasonable value of said work and materials done and furnished " ; ^° or where the complaint alleged that the defendant agreed to pay therefor what the materials were reasonably worth, and the proof showed an agreement to pay " the regular market value " ; " or where the com- plaint alleged a special contract, and that the defendant prevented the performance thereof, and alleged the reason- able value of the work performed, and the evidence and find- ings showed no special contract.^^ § 861. Same. Time of payment. The variance is imma- terial, where the complaint, by mistake, alleged that three fourths of the contract price was to be paid during the progress of the work, and the balance thirty-five days after the completion, and the proof and findings showed that one hundred dollars of the contract price was to be paid upon « Gibson v. W'heeler, 110 Cal. 243, 245, 42 Pac. Rep. 810. =0 Green v. Clifford, 94 Cal. 49, 53, 29 Pac. Rep. 331 (it does not appear whether there was also any finding of a hiring at specified wages). See § 851, ante. Montana. Or where the claim stated that " Lewisohn (whose cliristian name is unknown) " was the owner, and the complaint alleged that a copartnership — said Lewisohn and another — were the owners: Richards v. Lewisohn, 19 Mont. 128, 132, 47 Pac. Rep. 645. Oregon. As to name of employer, see Osborn v. Logus, 28 Oreg. 302, 38 Pac. Rep. 190, 42 Pac. Rep. 997. AVanhington. So the variance is immaterial where the claim states that the husband is the reputed owner, and the proof shows that the property was community property, that being unknown to the claim- ant at the time of filing the claim: Douthitt v. ftlacCulsky, 11 Wash. 601, 40 Pac. Rep. 186. " Santa Monica L. &" M. Co. v. Hege, 119 Cal. 376, 380, 51 Pa... Rep. B55. See preceding sections, this cnapte'r. « Ehlers v. Wannack, 118 Cal. 310, 313, 50 Pac. Rep. 433. 723 VARIANCES. §§ 862, 863 completion, and tlie balance thirty days after completion, the claim of lien correctly describing the contract.^^ § 862. Same. Subclaimant. Owner's employee. Where the complaint alleged that the plaintiff was an employee of the original contractor, and the proof showed an express agency of the contractor to employ the plaintiff, it was held that there was no such material variance between the com- plaint and the proofs as to preclude the enforcement of the lien.^* § 863. Same. Bond. Signed by principals. Unsigned. Where, in the body of the complaint, it is averred that the principals executed a bond, and the copy of the bond, which is attached as " Exhibit A," and made part of the complaint, shows that it was not signed by the principals, and the bond offered in evidence was identical with the exhibit, there is not a material variance.^^ 53 Webb V. Kuns (Cal., July 25, 1898), 54 Pac. Rep. 78, 79. See §§ 842. 845, ante. " Mclntyre v. Trautner, 63 Cal. 429, 431. =« Kurtz V. Forquer, 94 Cal. 91, 94, 29 Pac. Rep. 413 (the contract under the bond being strictly joint, and not joint and several, dls- tinKuifihing- Sacramento v. Dunlap. 14 Cal. 421. and People v. Hartley, 21 Cal. 585, 82 Am. Dec. 758, and following People v. Love, 25 Cal. 520. 530). § 864 mechanics' liens. 724 CHAPTER XL. TRIAL AND PRACTICE. § 864. Practice. In general. § 865. Amendment. Express and implied contract. § 866. Same. Modification of contract. § 867. Same. Description of property. § 868. Same. Relation of amendment to time of commencing action. § 869. Consolidation of actions. § 870. Same. Rights of claimants against one another. § 871. Deposit of money in court. § 872. Same. Payment of balance of fund. § 873. Intervention. Effect of. § 874. Same. Right to intervene. § 875. Jury trial. § 876. Same. Verdict. Setting aside verdict. § 877. New trial. § 878. Nonsuit. When sustained upon appeal. § 879. Same. When not granted. § 880. Same. Statute of limitations. § 881. Same. Time of filing claim. § 882. Same. Excessive claim. Forfeiture. § 883. Same. Admission in answer. Contract. § 884. Same. Common counts. Express contract. § 864. Practice. In general.^ With regard to rules of practice in mechanic's-lien cases, section eleven hundred and ^ Continued practice. Constant and uniform procedure continued by the courts for a long time are strongly presumptive that the prac- tice is correct: Giant P. Co. v. San Diego F. Co., 78 Cal. 193, 20 Pac. Rep. 419. Defaults. Relief from. ^Vide discretion. Under Kerr's Cyc. Code Civ. Proc, § 473, a wide latitude of discretion is vested in courts of original jurisdiction in relieving parties from default in the per- formance of acts, where such default tends to obstruct a hearing of pending actions, and where the exercise of such discretion is to accord litigants a trial upon the merits, the abuse must clearly appear: Klokke v. Raphael (March 27, 1908), 6 Cal. App. Dec. 508, 96 Pac. Rep. 392. Estoppel by stipulation to take deposition: Palmer v. Uncas M. Co., 70 Cal. 614, 616, 11 Pac. Rep. 666. Specifications of particular errors of law on which appellant will rely are not necessary"ln a bill of exceptions. So of Improper exclu- sion of evidence: Hagman v. Williams, '88 Cal. 146, 151, 25 Pac. Rep. 1111. So as to the ground that the finding or decision is not sup- ported by the evidence: Snell v. Payne, 115 Cal. 218, 220, 46 Pac. P.ep. 1069. '^25 TRIAL AND PRACTICE. § 864 ninety-eight - provides : " Except as otherwise provided in this chapter,^ the provisions of part two of this code are applicable to, and constitute the rules of practice in, the proceedings mentioned in this chapter." Only those rules peculiar to or specially illustrating proceedings in mechanic's- lien cases will be considered in this title. Principles of general application decided in mechanic's-lien cases, here considered for the sake of completeness, will be relegated to the notes. Kstoppel. As to attorneys' fees, see Rapp v. Spring- Valley G Co 74 Cal. 532, 534, 16 Pac. Rep. 325. Default: See " Judg-ment," §§903 et seq., post. Fictitious defendants. Dis^niissal. In a suit to enforce a lien ag-ainst the owner, the contractors, and several fictitious defendants, and the owner only was served and appeared, and no disposition of the case was made as to those not appearing-, and no objection was made in the court below to proceeding with the trial of tlie cause, the court may, under § 579 of the Code of Civil Procedure, give judgment against the owner without determining the liability of the other de- fendants: Kelley v. Plover, 103 Cal. 35, 36, 36 Pac. Rep. 1020. Granting motion to strike out matter upon which cause of action not based: See Gilliam v. Brown, 126 Cal. 160, 163, 58 Pac. Rep. 466. Stay of proceedings; banlfruptcy proceedings: See In re Grissler 136 Fed. Rep. 754, 69 C. C. A. 406. Colorado. Decree making claim of receiver a lien on property: See Bassick M. Co. v. Schoolfleld, 15 Colo. 376, 24 Pac. Rep. 1049. Idaho. Continuance, discretionary; ruling not reversed, except for abuse: See Robertson v. Moore, 10 Idaho 115, 77 Pac. Rep. 218. Nevada. Dismissal with relation to interveners: Elliott v Ivers 6 Nev. 287. New Mexico. Where adult defendants have the suit to foreclose liens dismissed as to certain other defendants, minors, the former are liable to pay the entire debt: Armijo v. Mountain E. Co., 11 N M 235 67 Pac. Rep. 726. ' • • - Dismissal: Newcomb v. White, 5 N. M. 435, 23 Pac. Rep. 671. Oregon. See Osborn v. Logus, 28 Oreg. 302, 37 Pac. Rep. 456, 38 Pac. Rep. 190, 42 Pac. Rep. 997, for a number of points of practice fully discussed; Capital L. Co. v. Ryan, 34 Oreg. 73, 54 Pac. Rep. 1093. Preference in calendar applies only to the trial in the circuit court- See Falconio v. Larsen, 31 Oreg. 137; and not on appeal: Hand Mfg Co. V. Marks, 36 Oreg. 523, 53 Pac. Rep. 1072. AVashington. Reference to referee: See Wheeler v. Ralph 4 Wash 617, 30 Pac. Rep. 709. Objections against parties having prior claims on fund: See Munroe v. Sedro L. & S. Co., 16 Wash. 694, 48 Pac. Rep. 405. Failure to serve cross-complaint; dismissed on rehearing, notwith- standing recital of decree and Hndings: See Powell v. Nolan '>! Wash 318, 67 Pac. Rep. 712, 721. Tender as admission of amount due: See Young v. Borzone 26 Wash. 4, 66 Pac. Rep. 135, 139, 421. Cost of claim of lien not deniandable on tender before suit: Youn" V. Borzone, 26 Wash. 4, 66 Pac. Rep. 135, 421. * " Rea.souable attorneys' fees stipulated at trial; uo evidence: See Greene v. Finnell, 22 Wasli. 186, 60 Pac. Rep. 144. ^ Kerr's Cyc. Code Civ. Proc, § 1198. » Kerr's Cyc. Code Civ. Proc, §§ 1183-1203a. §§ 865, 866 mechanics' liens. 726 § 865. Amendment.^ Express and implied contract. The complaint in an action to enforce a contractor's lien, in which a special contract between the contractor and the owner was stated, can be changed, by amendment, into an action on the contract, which contract may be counted on specially, or the common counts in assumpsit, in certain cases, may be used, the general rules applicable to which have already been indicated.® § 866. Same. Modification of contract. Where the com- plaint alleges a modification of the contract, the answer need not set it up ; and where the plaintiff strikes out such allega- tion by amendment after resting, the defendant may avail himself of proof of such modification, and amend his answer to conform to the proof.'' * See "Appeal," §956: "Description," §§399 et seq., ante. Aniendineut to answer: See Willamette S. M. L. & M. Co. v. Los Ang-eles Colleg-e Co., 94 Cal. 229, 240, 29 Pac. Rep. 629. Ainendnient to conform to proof of extent of lien: See "Decree," §§ 903 et seq., post. Anieuclnient affeetinK' injunction: See §§ 645 et seq., ante. Relation of amendment to commencement of action: See §§ G49 et seq., ante. Complaint in action on express contract; prevention of perform- ance; amendment to quantum meruit: See Cox v. McLaughlin, 76 Cal. 60, 63, IS Pac. Rep. 100. 9 Am. St. Rep. 164. Amendment of complaint as to notice to owner: See Weldon v. Superior Court, 138 Cal. 427, 71 Pac. Rep. 502. Montana. Amendment of answer: See A. M. Holter H. Co. v. On- tario' M. Co., 24 Mont. 184, 61 Pac. Rep. 3. Washington. Appellate court treating pleading- as amended; satis- faction of superintendent: See Lang v. Crescent Coal Co. (Wash., Nov. 1, 1906), 87 Pac. Rep. 261. » Castagnino v. Balletta, 82 Cal. 250, 256, 23 Pac. Rep. 127. See " Common Counts," §§ 673 et seq., and §§ 638 et seq., ante. Arizona. Amendment to complaint; review: O'Connor v. Adams, 6 Ariz. 404. 59 Pac. Rep. 105. Colorado. Amendment not changing cause of action of contractor to that of subcontractor: See Harris v. Harris, 18 Colo. App. 34. 69 Pac. Rep. 309, s. c. 9 Colo. App. 211, 47 Pac. Rep. 841. Making new cause of action (notes): Davis v. Johnson, 4 Colo. App. 545, 36 Pac. Rep. 887. « Flinn v. Mowry, 131 Cal. 481, 485, 63 Pac. Rep. 724, 1006. Amended complaint, alleging changes made in conformity -wltli contract, not constituting ne^v or ditferent cause of action; See People's L. Co. v. Gillard (Cal. App., June 20, 1907), 90 Pac. Rep. 556, s. c. 136 Cal. 55, 57, 68 Pac. Rep. 576. Washington. Amendment of complaint to correspond with proof showing smaller contract price, when alleged: See Irby v. Phillips, 40 Wash. 618, 82 Pac. Rep. 931. H 727 TRIAL AND PRACTICE. §§ 867-869 § 867. Same. Description of property. AYliere, in an action to enforce liens upon a building, tiie building is shown to be upon more land than is described in the complaint, but the claim of lien is sufficient to embrace the entire building, the court should direct an amendment to be made to the complaint, so that it may conform to the proofs." § 868. Same. Relation of amendment to time of com- mencing action. Where an amendment, based upon the same cause of action, is made to the complaint, it relates back to the date upon which the original complaint was filed, with reference to the time of commencing the action to foreclose the lien.^ An amendment to the complaint, by a material- man, to foreclose a lien for material furnished to the con- tractor, making the contractor a party, after the statutory time for commencing 'the action has passed, does not preju- dice the owner of the premises, because the contractor is not a necessary party to the action.^ § 869. Consolidation of actions.^" Section eleven hun- dred and ninety-five ^^ provides that " when separate actions are commenced, the court may consolidate them." ^- ' Wniamette S. M. Co. v. Kremer, 94 Cal. 205, 211, 29 Pac. Rep. 633. See §§ 399 et seq., ante. Colorailo. See Martin v. Simmons, 11 Colo. 411, 18 Pac. Rep. 535. 8 White V. Soto, 82 Cal. 654, 656, 23 Pac. Rep. 210. » Green v. Clifford, 94 Cal. 49, 52, 29 Pac. Rep. 331. See White v. Soto, 82 Cal. 654, 656, 23 Pac. Rep. 210; Casserly v. Waite, 124 Mich. 157, 161, 82 N. W. Rep. 841, 83 Am. St. Rep. 320. See "'Time of Commencing- Action," §§649 et seq., ante; also note 7 Am. & Eng. Ann. Cas. 947. " Consolidated aetiou; sing^le action: See Union L. Co. v. Simon (Cal. App., March 13, 1906), 89 Pac. Rep. 1077, 1080. See "Intervention," §§873 et seq., post. Various cases of consolidation o£ actions: Palmer v. Uncas M. Co., 70 Cal. 614, 11 Pac. Rep. 666; Harmon v. San Francisco & S. R. R. Co., 86 Cal. 617, 25 Pac. Rep. 124; Marble L. Co. v. Lordsburg Hotel Co., 96 Cal. 332, 31 Pac. Rep. 164; Petersen v. Shain (Cal.), 33 Pac. Rep. 1086. Consolidation on appeal: See Valley L. Co. v. Struck, 146 Cal. 206, 80 Pac. liep. 405. Colorado. Consolidation of actions: See Eagle G. M. Co. v. Bryarly, 28 Colo. 262, 65 Pac. Rep. 52, 53. > Montana. Consolidation ordered where the parties are the same in each suit, and the subject-matter such as may be joined: Mason v. Germaine. 1 Mont; 267 (1865). " Kerr's Cyc. Code Civ. I'roc, § 1195. ^ As to attorneys' fees in eacU action, see §§ 935 et seq., post. § 870 mechanics' liens. 728 Trial after consolidation. A plaintiff is not entitled to a separate trial of the respective claims of plaintiffs in the consolidated action ; ^^ and, after the consolidation, the actions should be tried as a single action by the respective plaintiffs against the defendants." Findings. The decision of the court should be embodied in a single set of findings, after the actions have been con- solidated.^^ § 870. Same. Rights of claimants against one another. Upon the consolidation of two or more actions to foreclose An early statute required that every lien on the same property should be litigated and enforced in the same action, and it was held that every suit brought to enforce a particular lien must be regarded as a proceeding to enforce all the liens against the same property: Mars V. McKay, 14 Cal. 127, 129 (1855). Washington. Prior to act of 1893: See Douthitt v. MacCulsky, 11 Wash. 601, 40 Pac. Rep. 186; Harrington v. Miller, 4 Wash. 808, 31 Pac. Rep. 325 (and the court, it was held, could segregate some of the actions after consolidation, and proceed with the others to final judg- ment, and likewise, subsequently, with the segregated actions). Consolidation of actions: See Peterson v. Dillon, 27 Wash. 78, 67 Pac. Rep. 397. Power to consolidate actions inherent in courts of equity: Peterson V. Dillon, 27 Wash. 78, 67 Pac. Rep. 397. " Curnow v. Happy Valley B. G. & H. Co., 68 Cal. 262, 263, 9 Pac. Rep. 149. " Willamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 229, 232, 29 Pac. Rep. 629. Washington. "In consolidated cases, each case should be treated on its merits, as if it stood alone. The rules of evidence are the same, whether cases are tried separately or together, and no incom- petent evidence is admissible. The parties in one of several consoli- dated cases ought not to be deprived of any legal right by reason of the introduction of proper evidence in another case, simply because the two are tried together. The object of the legislature in providing for the consolidating of these lien cases was to facilitate the trial and avoid unnecessary expenses, and not to deprive a wortliy class of liti- gants of any rights or privileges they would have if their actions were brought separately": Harrington v. Miller, 4 Wash. 808, 813, 31 Pac. Rep. 325. Where owner party to only some of consolidated actions, but appeared on the trial of the consolidated actions, she was held bound by the decree in the consolidated action: Douthitt v. MacCulsky, 11 Wash. 601, 40 Pac. Rep. 186 (statute prior to act of 1893). '5 Willamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 229, 232, 29 Pac. Rep. 629. See Kerr's Cyc. Code Civ. Proc, § 1194, and note, declaring the rank of liens in the judgment; and see "Findings," §§885 et seq., and "Decree," §§903 et seq., post. Mere fact that court makes separate findings in each case is not sufficient ground for reversal: Marble L. Co. v. Lordsburg Hotel Co., 96 Cal. 332, 333, 31 Pac. Rep. 164. 729 TRIAL AND PRACTICE. §§ 871-873 mechanics' liens, the plaintiffs become actors in the suit against one another, as well as against the owner, and each is entitled to reduce or avoid the lien of any of the others by any evidence that would have that effect.^* § 871. Deposit of money in court. The owner of the building, after its completion by the contractor, holds the money reserved as required by section eleven hundred and eighty-four ^' for payment to the contractor or lien claim- ant, whichever is entitled to it; and if there is a contest between them, he should deposit the money in court, to be paid to the party adjudged to be entitled to it.^^ § 872. Same. Payment of balance of fund. The remain- der of the fund due from the owner to the contractor after payment of liens cannot be ordered by the court to be dis- tributed to those who are entitled only to a money judgment against the contractor, but should be ordered to be paid to the contractor.^^ But where the fund is deposited in court, and the parties are required to interplead concerning it, it has been held that the remainder may be distributed to one of the parties so interpleaded, if he is entitled to it, although he may have no lien upon the fund.-° § 873. Intervention.-^ Effect of. Intervention in a suit already pending, if filed within the time prescribed by law, " Kennedy & S. L. Co. v. Dusenbery, 116 Cal. 124, 126, 47 Pac. Rep. 1008. " Kerr's Cyc. Code Civ. Proc., § 1184. " De Camp L. Co. v. Tolhurst, 99 Cal. 631, 635, 34 Pac. Rep. 438. »» Kennedy & S. L. Co. v. Priet, 113 Cal. 291, 293, 45 Pac. Rep. 336; Kennedy & S. L. Co. v. Dusenbery, 116 Cal. 124, 126, 47 Pac. Rep. 1008. See " General Creditors," §§ 601 et seq., ante. 2» Board of Education v. Blake (Cal., Dec. 3, 1894), 38 Pac. Rep. 536. This case was one of garnishment upon a board of education, which was ineffectual, and the board interpleaded a general creditor having no lien upon the fund, a creditor who had a lien by service of notice under § 1184 of the Code of Civil Procedure, and the contractor; but the decision was based expressly upon the ground that the board haa interpleaded the parties respecting the fund. » See "Consolidation," §§869 et seq., ante. As to general principles of intervention, see Kerr's Cyc. Code Civ. Proc, 5 387, and note. Montana. Summons necessary on order to bring parties in: Mason V. Germaine, 1 Mont. 273 (1865). § 874 mechanics' liens. 730 is as much a compliance with the act as an original suit; and the effect is the same as if an original suit had been com- menced; but if the intervener fails to connect himself with the original suit before his lien expires, he cannot take advantage of the pendency of the original suit.^^ § 874. Same. Right to intervene. In a suit to enforce a mechanic's lien on a ditch, the mortgager of the ditch, sub- sequently to the lien, has no absolute right of intervention, and where a suit has been pending for some time, and the ap- plication to intervene was made just as the plaintiff was taking judgment, the application was properly refused, and in such case, if the intervener has a valid claim, it is still in Intervention: See Cook v, Gallatin R. Co., 28 Mont. 340, 72 Pac. Rep. 678. Utah. Intervention; practice: Elwell v. Morrow, 28 Utah 278, 78 Pac. Rep. 605. W'asbingrton. Consent of the other parties to the suit is necessary in order that a pendente lite assignee of a mechanic's lien may inter- vene in a foreclosure suit, and supplemental pleadings required: Powell V. Nolan, 27 Wash. 318, 67 Pac. Rep. 712 (under Ballinger's Ann. Codes and Stats., § 4824, the party in interest; and § 4958, sup- plemental pleadings). Intervention: See Lavanway v. Cannon, 37 Wash. 593, 79 Pac. Rep. 1117. Claimants intervening after suit commenced: See Lavanway v. Cannon, 37 Wash. 593, 79 Pac. Rep. 1117, 1119. 22 Mars v. McKay, 14 Cal. 127, 129 (under § 7, act of April 27, 1855, Stats. 1855, p. 157, similar to § 1190, Kerr's Cyc. Code Civ. Proc, as to commencing suit; the former, however, allowing six months and ex- tensions of time, and the latter ninety days only, after the filing of the claim): See De Camp L. Co. v. Tolhurst, 99 Cal. 631, 633, 34 Pac. Rep. 438. See Tibbetts v. Moore, 23 Cal. 208, 214 (under act of April 19, 1856, Stats. 1856, p. 203, § 7, as amended by act of April 22, 1858, Stats. 1858, p. 225, and act of 1861, which provided for special notice to be published upon the filing of the petition requiring claimants on a certain day to exhibit proof of their liens, the proceeding being special). Likewise: Van Winkle v. Stow, 23 Cal. 457, 461 (Stats. 1861, p. 495). Under the peculiar procedure required by the act, it was held that it was not the intent of the legislature that there should be inter- vention by a mortgagee in such special proceeding. Nevada. Under act of 1875, interveners were connected with the proceeding to foreclose the plaintiff's lien, by force of the statute, when the action was commenced and notice thereof published. No formal petition or order of court was required: Hunter v. Truckee Lodge, 14 Nev. 29; Elliott v. Ivers, 6 Nev. 290. The former case criti- cizes Mars V. McKay (Cal..), supra. Oklahoma. Blanshard v. Schwartz, 7 Okl. 23, 54 Pac. Rep. 303. Oregon. But see Title G. & T. Co. v. W'renn, 35 Oreg. 62, 56 Pac. Rep. 271, 76 Am. St. Rep. 454, citing Mars v. McKay, supra. 731 TRIAL AND PRACTICE. § 875 his power to assert it, the decree, of course, binding only the parties to the action.^^ § 875. Jury trial.^* An action to foreclose a mechanic's lien being equitable in its nature,-^ a party to the action is not entitled, as a matter of right, to a jury trial ; but, under " Hocker v. Kelley, 14 Cal. 164. See note to preceding section. Colorado. Any person wliose interest, when disclosed, requires it, may be made a party, pending- proceedings prior to final decree: Snodgrass v. Holland, 6 Colo. 596. But as to parties whose rights accrued after suit brought, see Cornell v. Conine-Eaton L. Co., 9 Colo. App. 225, 47 Pac. Rep. 912; Fischer v. Hanna, 8 Colo. App. 471, 47 Pac. Rep. 303. AVashington. "Under our statute, there is no reason why other liens than those of mechanics and material-men cannot be joined in an action for the foreclosure of sucli liens, if, in the opinion of the trial court, the convenience and interests of all parties demand such joinder. All the liens relate to the same subject-matter, and suits thereon seek a common remedy; that is, to have the property sold in satisfaction thereof, and bear such relations to each other as to come within the provisions of our statute as to intervention": Washington R. P. Co. V. Johnson, 10 Wash. 445, 448, 39 Pac. Rep. 115. ^* In-structions* to jury; verbal alterations of contract: See Gilliam V. Brown, 116 Cal. 454. Colorado. Instruction as to bad faith, no issue thereon being made: See San Miguel Consol. G. M. Co. v. Stubbs (Colo., April 1, 1907), 90 Pac. Rep. 842, 844. Instruction.^ conflicting; "heart of yellow pine"; sample: See San Miguel Consol. G. M. Co. v. Stubbs (Colo., April 1. 1907), 90 Pac. Rep. 842, 844. Idalio. Instruction; counterclaim for damages for delay: See American B. Co. v. Regents of University, 11 Idaho 163, 81 Pac. Rep. 604, 611. Montana. Instruction; cancelation of contract: Wortman v. ilon- tana Cent. R. Co., 22 Mont. 266, 56 Pac. Rep. 316. Oklalionia. Exception to instruction: See Harness v. McKee-Brown L. Co. (Okl., Feb. 13, 1907), 89 Pac. Rep. 1020. Washington. Instruction as to time of completion of contract; damages; conditions surrounding performance: See Anderson v. Hilker, 38 Wash. 632, 80 Pac. Rep. 848. Exception to in.struction; "substantial performance"; "substan- tial failure to perform": See Anderson v. Harper, 30 Wash. 378, 70 Pac. Rep. 965. Instruction; agency; knowledge of principal: See Novelty M. Co. v. Heinzerling, 39 Wasli. 244. SI Pac. Rep. 742. In.struction an to agency in Nuperintending w'ork: See Novelty M. Co. v. Heinzerling, 3;t Wasli. 244, SI Pac. Rep. 742. Instruction; comment l>y court on evidence: See Drumheller v. American S. Co., 30 Wash. 530, 71 Pac. Rep. 25. Instructions not excepted to, binding: See Dyer v. Middle Kittitas Irr. Dist., 40 Wash. 238, 82 Pac. Rep. 301. ^ See § 9, and §§ 638 et seq., ante. Colorado. Under Rev. Stats., ch. liv, 427, the chancery practice was Observed: Clear Creek M. Co. v. Root, 1 Colo. 374. §§ 876, 877 mechanics' liens. 732 the code, in such case, grantmg or refusing the demand for a jury trial is entirely within the discretion of the court.-® § 876. Same. Verdict. Setting aside verdict. In an action to foreclose a mechanic's lien, the court may properly set aside a judgment entered on the verdict of the jury, where it appears that it had been inadvertently entered by the clerk without judicial sanction, when other issues of fact remain to be determined by the court, and the court may proceed with the trial of such issues, and may adopt an advisory verdict of the jury upon the special matter therein involved, make findings as to the other issues, and have a new judgment entered. ^^ § 877. New trial. An express limitation of the ground upon which an order granting a defendant a new trial was made is as to the insufficiency of the claim of lien, and pre- vents the defendant from contending that the order might have been granted upon the ground that the evidence was insufficient to support the findings.^^ 2« Curnow v. Happy Valley B. G. & H. Co., 68 Cal. 262, 264, 9 Pac. Rep. 149. See §§ 869 et seq., ante. Idaho. Jury trial allowable where there is a demand for damages in cross-complaint or counterclaim, at law: See Robertson v. Moore, 10 Idaho 115, 77 Pac. Rep. 218. Montana. Jury discretionary In action to foreclose lien: Mochon V. Sullivan, 1 Mont. 470; Simonton v. Kelly, 1 Mont. 483. Washington. Wheeler v. Ralph, 4 Wash. 617, 630, 30 Pac. Rep. 709. See Installment etc. Loan Co. v. Wentworth, 1 Wash. 467, 25 Pac. Rep. 298. The interposition of a legal defense, such as damages for breach of contract, did not give a right to a jury trial: Dearborn Foundry Co. V. Augustine, 5 Wash. 67, 31 Pac. Rep. 327. =' Cummings v. Ross, 90 Cal. 68, 72, 27 Pac. Rep. 62. Idaho. The court may set aside the verdict: Idaho & O. L. Co. v. Bradbury, 132 U. S. 509, bk. 33 L. ed. 433, 10 Sup. Ct. Rep. 177. =» McGinty v. Morgan, 122 CaL 103, 54 Pac. Rep. 392. New trial. Section 1190 of the Code of Civil Procedure makes the provisions of Part II, § 656, same code, generally applicable: See Townley v. Adams, 118 Cal. 382, 50 Pac. Rep. 550. A new trial is properly granted in an action by the contractor, when the trial court refuses to continue the trial until the cases pending for the foreclosure of subclaimants' liens, pleaded in the answer, have been determined: Macomber v. Bigelow, 123 Cal. 532, 56 Pac. Rep. 449. See Kerr's Cjc. Code Civ. Proc., S§ 656, 1190, and notes. 733 TRIAL AND PRACTICE. §§ 878, 879 § 878. Nonsuit. When sustained upon appeal. The action of the trial court in granting a nonsuit will be sus- tained upon appeal, no matter whether the proper grounds were stated by the moving party or not, where any valid ground for sustaining such action can be seen by the appel- late court. -^ § 879. Same. When not granted. Where there is a con- flict in the evidence, if there is any evidence tending to sus- tain the plaintiff's case, the motion for a nonsuit should not be granted. ^'^ Thus — Void contract. Where the conflict relates to the terms of the contract upon which the action is brought, and as to its validity, for the purpose of the motion, the court has no right to assume that there were provisions in the contract which made it void.^° For a general statement as to the method of procedure on motion for a new trial, see Williams v. Hawley, 144 Cal. 97, 99, 77 Pac. Rep. 762. Statement on motion for ne%v trial; specifications of insufficiency of evidence: See American Type F. Co. v. Packer, 130 Cal. 459, 461, 62 Pac. Rep. 744. Order for new trial; laying sidewalk: See Fllnn v. Mowry, 131 Cal. 481, 487, 63 Pac. Rep. 724. 1006. New trial granted; lien for street-improvement: See PI inn v. Mowry, 131 Cal. 481, 487, 63 Pac. Rep. 724, 1006. Order granting ne^v trial; attorneys' fees: See Hooper V. Fletcher, 145 Cal. 375, 379, 79 Pac. Rep. 418. Appeal from order denying new trial; ^vliat considered: See Schroeder v. Pissis, 128 Cal. 209, 212, 60 Pac. Rep. 758. What considered upon appeal from order granting new trial; no specification of insuflaciency of evidence; request of owner; satisfac- tion of superintendent of streets; lien of assignee of contract: See De Haven v. McAuley, 138 Cal. 573, 575, 72 Pac. Rep. 152. Colorado. See Bradbury v. Butler, 1 Colo. App. 430, 29 Pac. Rep. 463. Right to lien: Bradbury v. Butler, supra. Reopening case without notice to subsequent encumbrancers: See Sprague I. Co. v. Mouat L. & I. Co., 14 Colo. App. 107, 60 Pac. Rep. 179, 184. Montana. See Bardwell v. Anderson, 18 Mont. 528, 46 Pac. Rep. 443. Washington. Vacation of judgment and entry of new judgment, on motion for new trial: See Griffith v. Maxwell, 19 Wash. 614, 54 Pac. Rep. 35, s. c. 20 Wash. 403, 55 Pac. Rep. 571. -'» Snell V. Payne, 115 Cal. 218, 222, 46 Pac. Rep. 1069. Arizona. Directed verdict; cause of action not stated: See McPher- son v. Hattich (Ariz., March 30, 1906), 85 Pac. Rep. 731. 30 Pacific Mut, L. Ins. Co. v. Fisher, 109 Cal. 566, 569, 42 Pac. Rep 154. §§ 880-882 mechanics' liens. 734 § 880. Same. Statute of limitations. When the statute of limitatious is pleaded as to the first two counts of the complaint, and not pleaded as to a third count, upon a motion for nonsuit upon the ground that the " claim " is barred by the statute, such objection cannot be urged. The word " claim," used in the grounds of the motion, includes the whole claim set forth in the three counts of the complaint, and the action in its entirety should not be held to be barred.^^ § 881. Same. Time of filing claim. Where certain work may not have been contemplated by the contract, if it never- theless appears that it was done under the direction of the agent of the owner, and the obligations of the contractor to the owner were not extinguished until certain debris were removed, there is some evidence tending to show that the work was not actually completed, for the purpose of filing the lien, and a nonsuit for failure to file the claim of lien in time should not be granted, even where such evidence consists largely of conclusions introduced without objection on that ground.^^ § 882. Same. Excessive claim. Forfeiture. And where the motion for nonsuit was made upon the ground that plaintiff " knowingly and wilfully filed a notice of lien for more than he was entitled to, and sought in the action to recover an amount in excess of the amount actually due," it does not state a ground of forfeiture, as wilfully includ- ing in his notice to the owner material not furnished for the property, as set forth in section twelve hundred and two,^^ and the motion for nonsuit could not, therefore, prop- erly be granted.^* »i Castagnino v. Balletta, 82 Cal. 250, 262, 23 Pac. Rep. 127. »2 Gordon H. Co. v. San Francisco & S. R. R. Co., 86 Cal. 620, 622, 25 Pac. Rep. 125. 33 Kerr's Cyc. Code Civ. Proc, § 1202. 3* Schallert-Gq,nahl.L. Co. v. Neal, 91 Cal. 362, 366, 27 Pac. Rep. 743 (the motion was not sufficient, whether aimed at the notice or claim. The language of the opinion, however, is not very clear upon tills point). 735 TRIAL AND PRACTICE. §§ 883, 884 § 883. Same. Admission in answer. Contract. A non- suit should not be granted, where there is an admission in the answer as to the making of the contract, and the plain- tiff does not offer evidence as to the terms of the contract, or evidence to show that there was any contract. ^^ § 884. Same. Common counts. Express contract. Where the evidence tends to show that the architect accepted the building, and all conditions precedent have been complied with by plaintiff, and the amount due alone remained to be paid, in an action upon the common counts, where the special contract is offered in evidence, a nonsuit should not be granted for a disagreement between the allegations and the proof.^^ Agreed price. But where the complaint and claim of lien averred an agreed price' for the work, and the evidence showed that, except as to one small item, there was no agreed price, a nonsuit should be granted, as this shows a failure to comply with a statutory requisite. ^^ » Schmid v. Busch, 97 Cal. 184, 187, 31 Pac. Rep. 893. »« Castagnino v. Balletta, 82 Cal. 250. 259, 23 Pac. Rep. 127. See "Complaint," §§672 et seq., ante; "Variances," §§836 et seq., ante. " Wagner v. Hansen, 103 Cal. 104, 107, 37 Pac. Rep. 195. § 885 mechanics' liens. 736 CHAPTER XLI. FINDINGS. § 885. Findings. Scope of chapter. § 886. Issues to be found upon. § 887. Finding to cover entire issue. § 888. Same. Defective findings. § 889. Ultimate facts to be found. § 890. Immaterial issues. § 891. Same. Knowledge of owner. Notice of non-responsibiflty. § 892. Segregating items of contract price. § 893. Contradictory findings. § 894. Findings in consolidated action. § 895. Findings of fact and conclusions of law. § 896. Same. Void contract. § 897. Findings sufficient to support judgment. § 898. Agency. § 899. Same. Insufficient finding. § 900. Same. Request of owner. § 901. Same. Void contract. § 902. When findings may not be attaclted. § 885. Findings.^ Scope of chapter. The subject of find- ings will not be discussed in detail. Only those rules pecu- liar to or specially illustrating the matter treated in this work will be referred to, in accordance with the general plan 1 See "Demurrer," §§728 et seq., ante; "Evidence," §§764 et seq., ante; "Practice. In General," §§ 864 et seq., ante; "Variances," §§ 835 et seq., ante. The provisiou of § 034, that findings may be waived by the several parties to an issue. Includes all parties, and applies to infants, as well as to adults: Western L. Co. v. Phillips, 94 Cal. 54, 56, 29 Pac. Rep. 328. See Kerr's* Cye. Code Civ. Proc., § 634, and note. As to extent of land for convenient use and occupation, see " Com- plaint," §§ 717 et seq., ante. As to finding upon inistalves in claim, and bona fide purchasers, see Kerr's Stats, and Aindts. 1906-07, Code Civ. Proc, § 1203, p. 482; and §§ 412 et seq., ante. Findings upon consolidation: See §§ 869 et seq., ante. PreNuiuptions in favor of findings, appeal: See § 976, post. Wasiiiugton. Finding's of fact and law held not necessary in an equitable action to foreclose lien: Kilroy v. Mitchell, 2 Wash. 407, 26 Pac. Rep. 865. 737 FINDINGS. § 886 of treatment of pleadings and practice already adverted to in the chapter on complaint.^ § 886. Issues to be found upon. The court should find upon all the material issues.'' Thus — ■ Proper defense. Notice of action. In an action upon a bond, where the answer denied that the plaintiff properly- defended the actions brought to foreclose liens of subclaim- ants, and also denied that the defendants had any notice of the pendency of these actions, the issues were material, and should have been passed upon."* Liens paid by owner. In a suit to foreclose a contractor's lien, there should be findings as to the issue of the moneys alleged to be paid to the subclaimants upon valid liens by the owner in consideration of an assignment of such subliens.' Priorities. The fact of want of notice of a prior unre- corded mortgage should be found, to give priority over it to a subsequent mechanic's lien.*' Use of materials. The findings must show, in an action to foreclose a material-man's lien, that the materials were furnished to be used in the building, and were actually so used.^ ^ See § 670, ante. Fixture as part of building;; finding: See Stevenson v. Woodward, 3 Cal. App. 754, 86 Pac. Rep. 990. As to fixtures as appurtenances, see Kerr's Cyc, Civ. Code, § 660, note pars 3-148. Wyoming. Finding properly identifying land and liouse: See Big Horn L. Co. v. Davis, 14 Wyo. 455, 85 Pac. Rep. 1048, 84 Id. 900. ^ Failure to find upon material issue is error: Reese v. Bald Mt. Consol. G. M. Co., 133 Cal. 285, 288, 65 Pac. Rep. 578 (agency; before amendment of 1907 to Kerr's Cyc. Code Civ. Proc, § 1183). Idaho. Necessary for court to find amount of land necessary for convenient use and occupation, and may call witnesses therefor: See Robertson v. Moore, 10 Idaho 115, 77 Pac. Rep. 218, 222. * Ernst V. Cummings, 55 Cal. 179, 183. = Shaw V. Wandesford, 53 Cal. 300, 301. See Billings v. Everett, 52 Cal. 661; Baggs v. Smith, 53 Cal. 88; O'Connor v. Fraslier, 53 Cal. 435; Taylor v. Reynolds, 53 Cal. 686; Mahoney v. Braverman, 54 Cal. 565, 571; Knight v. Roche, 56 Cal. 15, 25. » Root V. Bryant, 57 Cal. 48, 49. ' Patent Brick Co. v. Moore, 75 Cal. 205, 211, 16 Pac. Rep. 890. See Holmes v. Richet, 56 Cal. 307, 310, 38 Am. Rep. 54; Silvester v. Coe Quartz M. Co., 80 Cal. 510, 513, 22 Pac. Rep. 217: Bewick v. Muir, 83 Cal. 368, 370, 23 Pac. Rep. 389, 83 Cal. 373, 23 Pac. Rep. 390; Gordon H. Co. v. San Francisco & S. R. R. Co., 86 Cal. 620, 25 Pac. Rep. 125; Cohn V. Wright, 89 Cal. 86, 88, 26 Pac. Rep. 643; Roebling Sons Co. v. Bear Mech. Liens — 47 § 887 mechanics' liens. 738 Promise to pay. Honey due. In an action by the owner's laborers, the court must find upon the express promise to pay alleged, and that a sum of money was due and unpaid at the commencement of the action.^ Performance. Substantial performance of the original contract should be found as a fact, to sustain the judgment for the contract price, less damages for failure to perform the. contract, in favor of the contractor.^ Void contract. Value. In an action by subclaimants under a void statutory contract, there should be a finding as to the value of the labor done and materials furnished.^" § 887. Finding to cover entire issue. The finding of the court should cover the whole of the issue. ^^ Thus — Date of completion. A finding that a building was com- pleted " on or aliout " a date specified in the answer is insuf- ficient to cover the issue as to the date of completion, when it ?:s material to fix the proper time within which to file the claim of lien.^^ Prevention of performance. A finding that the defendant entirely suspended work under the provisions of the contract is not a finding of prevention of performance.^^ VaUey Irr. Co., 99 Cal. 488, 490, 34 Pac. Rep. 80; Hamilton v. Delhi M. Co., 118 Cal. 148, 153, 154, 50 Pac. Rep. 378; Stimson v. Los Angeles T. Co., 141 Cal. 30, 32, 74 Pac. Rep. 357; Bennett v. Beadle, 142 Cal. 239, 242, 75 Pac. Rep. 843; Tabor v. Armstrong-, 9 Colo. 285, 289, 12 Pac. Rep. 157; Hill v. Bowers, 45 Kan. 592, 593, 26 Pac. Rep. 13; The James H. Prentice, 36 Fed. Rep. 782; Gordon v. Canal Co., 1 McAl. C. C. 514, 522. See notes 64 Am. Dec. 679; 79 Am. Dec. 273. See also "Appeal," §980, post. s Bewick v. Muir, 83 Cal. 368, 371, 23 Pac. Rep. 389, 83 Cal. 373, 23 Pac. Rep. 390. » Perry v. Quackenbush, 105 Cal. 299, 306, 38 Pac. Rep. 740. " Booth V. Pendola, 88 Cal. 36, 41, 23 Pac. Rep. 200, 24 Id. 714, 25 Id. 1101. Idaho. Failure to find upon all material issues: See Sandstrom v. Smith (Idaho, June 20, 1906), 86 Pac. Rep. 416. Court may approve and adopt findings of jury in suit to foreclose lien, it being an action in equity: Sandstrom v. Smith, supra. " General principles of construction of findings set forth : See McClain v. Hutton, 131 Cal. 132, 143, 61 Pac. Rep. 273, 63 Id. 182, 622. Finding as to completion of building, construed: See Jones V. Kruse, 138 Cal. 613, 616, 72 Pac. Rep. 146. " Cohn V. Wright, 89 Cal. 86, 88. 26 Pac. Rep. 643. ^ Cox V. McLaughlin, 63 Cal. 196, 206. 739 FINDINGS. §§ 888, 889 Conditional compensation. Where the answer raises an issue that the plaintiff was not to receive any compensa- tion unless the building was erected, which depended upon whether he procured a license for the selling of liquor therein, the building being abandoned by reason of inability to procure such license, and the court finds that there was no agreement between plaintiff and defendants as to the amount to be paid plaintiff", this is not a finding as to the special defense set up, but relates merely to the amount.^* Completion of building. Abandonment. Where the claim was filed the day before the completion of the buiUliiig, and the court finds that prior to the commencement of the action the carpenters finished their work, but that the building " was not then, and is not now, completed," and " that neither of the plaintiff's, at the time of furnishing the materials, knew that it was not the intention " of the owner " to complete the building, and leave it in an unfinished state," the findings are not equivalent to a finding that the original purpose of the owner was to construct the building in part, or that the original purpose to finish it was abandoned.^^ § 888. Same. Defective findings. A finding is not defective, in failing to show whether improvements made were of such a character that they imixjscd a lien on the premises under a clause of a lease providing for their removal under certain conditions, referring to the same, where it is found that the additions, alterations, and repairs in ques- tion were made to and upon buildings and other structures situated on the leased premises, the finding thus showing that the improvements were upon property which is declared subject to lien by statute, and was sufficieut.^'^ § 889. Ultimate facts to be found. Probative facts should not be found; and a finding of probative facts will not gen- erally control, limit, or modify a finding of the ultimate fact; but, when the ultimate fact is found, no finding of probative facts, which may tend to establish that the ultimate fact was " Ehlers v. Wannack, 118 Cal. 310, 314, 50 Pac. Rep. 433. ^ Schwartz v. Knight, 74 Cal. 432, 435, 16 Pac. Rep. 235. " Evans v. Judson, 120 Cal. 282, 285, 52 Pac. Rep. 585. § 889 mechanics' liens. 740 found against the evidence, can overcome the principal find- jjjg 17 rpj^g ultimate fact, or facts from which the ultimate fact is necessarily deducible, must be found. Thus — Completion. The ultimate fact of completion, or of trifling imperfection, or of continuance of the work during a certain period, or cessation from work for thirty days, should be found.^^ Substantial performance. But a finding of trivial defect, such as that some small places in the house were not properly grained and finished, and that the cost of properly finish- ing them -would not be more than five dollars, or that plain- tiffs substantially complied with the contract and completed the work, is consistent with a finding that the plaintiff sub- stantially performed his contract,^^ Invalidity of contract. Where facts are found, showing the invalidity of the statutory original contract, it is equiv- alent to finding that there was no original contract, and that no labor was done or materials furnished under it.^" The issue of damages for breach of a statutory original contract is disposed of by a finding showing the statutory original contract to be void.^^ " Perry v. Quackenbush, 105 Cal. 299, 305, 38 Pac. Rep. 740 (finding of complete performance). Findings supported by e^-idence: See Sims v. Petaluma G. L. Co., 131 Cal. 656, 660, 62 Pac. Rep. 300, 63 Pac. Rep. 1011 (due perform- ance; reasonable value); Boothe v. Squaw Springs W. Co., 142 Cal. 573, 576, 76 Pac. Rep. 385 (extras; modification of contract); Union Ij. Co. V. Simon (.Cal. App., March 13, 1906), 89 Pac. Rep. 1077, 1078, 1081 (land for convenient use and occupation; hospital). E^videnee insufficient to support finding; compensation of architect: See Pitzhugh v. Mason, 2 Cal. App. 220, 224, 83 Pac. Rep. 282. Evidence conflicting; gas plant: See Sims v. Petaluma G. L. Co., 131 Cal. 656, 63 Pac. Rep. 1011, reversing s. c. 62 Pac. Kep. 300. Montana. Evidence held to support findings: Western I. W. v. Montana P. & P. Co., 30 Mont. 550, 77 Pac. Rep. 413, 417 (single con- tract on an open continuous account; falling within the rule an- nounced in Helena S. H. & S. Co. v. Wells, 16 Mont. 65, 40 Pac. Rep. 78, and distinguisliing A. M. Holter H. Co. v. Ontario M. Co., 24 Mont. 184, 61 Pac. Rep. 3). i« Marble L,. Co. v. Lordsburg H. Co., 96 Cal. 332, 3o4, 31 Pac. Rep. 164. " Harlan v. Stufllebeem, 87 Cal. 508, 510, 25 Pac. Rep. 686. ^ Rebman v. San Gabriel V. L. & W. Co., 95 Cal. 390, 396, 30 Pac. Rep. 564. See §§ 319 et seq., ante. =» Rebman v. San Gabriel V. L. & W. Co., 95 Cal. 390, 396, 30 Pac. Rep. 564. See §§ 319 et seq., ante. 741 FINDINGS. § 890 Estoppel. And so where the court does not find upon a plea of estoppel as to falsely receipted bills presented to the owner, but finds that the owner did not rely upon the same, it is sufficient.-- § 890. Immaterial issues. The court need not find upon immaterial issues, such as a claim for attorneys' fees upon foreclosure of the lien ; -^ nor upon issues not made by the pleadings, nor upon an issue rendered immaterial by the findings made upon other issues ; -* nor upon matters outside of the issues.-'^ Contract. A finding of a contract with the owner, not pleaded in an action of a subelaimant under a non-statutory original contract, is outside of the issues.-*^ Amount due. Where the plaintiff, a subcontractor, fails to state that anything was due from the owner to the con- tractor at the time of filing the claim, or upon notice to the owner, and thus fails to state a cause of action, a finding that the oAvner had notice was without the issues.-^ Another action pending. When the answer to the com- plaint of the contractor in indebitatus assumpsit does not plead another action pending, which had been first brought by the subcontractor of the plaintiff against the defendant to recover for a foundation built pursuant to the contract, a finding that such action was pending is outside of the issues.-* 2= Washburn v. Kahler, 97 Cal. 58, 60, 31 Pac. Rep. 741. 23 Clancy v. Plover, 107 Cal. 272, 274, 40 Pac. Rep. 394. 2* Finding outside issiie.s; offsets and counterclaims for labor and materials of subclaimants: See Gamache v. South School Dist., 133 Cal. 145, 148, 65 Pac. Rep. 301. See Green v. Chandler, 54 Cal. 626. In a suit to forecIoNe MUbeoutractor'H lien, flntlinjf; unneoeNMury as to negligence o£ contractor in carrying out void original contract by original contractor: See Macomber v. Bigelow, 126 Cal. 9, 13, 58 Pac. Rep. 312. Unnecessary flnding; need not be supported by tlie evidence: Union S. M. Works V. Dodge, 129 Cal. 390, 397 (consideration). Unsupported findinj? rendered immaterial: Fitzhugh v. Mason, 2 Cal. App. 220, 224, 83 Pac. Rep. 282 (arcliitect's compensation). No evidence as to fraud introduced; no finding necessary: See Macomber v. Bigelow, 126 Cal. 9, 13, 58 Pac. Rep. 312. •^ So held in reference to notice of non-responsibility under § 1192, Kerr's Cyc. Code Civ. Proc. (before amendment of 1907): Buell v. Brown, 131 Cal. 158, 162, 63 Pac. Rep. 167. 26 Gibson v. Wneeler, 110 Cal. 243. 246, 42 Pac. Rep. 810. " Rosenkranz v. Wagner, 62 Cal. 151, 154. » Griffith v. Happersberger, 86 Cal. 605, 612, 25 Pac. Rep. 137, 487. § 891 mechanics' liens. 742 Performance. "Where evidence as to non-performance of the contract and guaranteeing the performance of the con- tract was introduced in evidence, but no issue was made as to these facts by the pleadings, a finding thereon would be outside of the issues.-" Completion of work. An averment, in the answer, of the date of completion of the work of excavation presents no material issue, where the work of excavating was simply a part of the work under the contract, and requires no find- ing, when the findings made show that there was no cessa- tion from work, and that the construction of the building was continuously carried on to completion and the liens were filed within the proper time thereafter.^" Facts admitted. Where a fact is admitted in the plead- ings, a finding thereon is unnecessary, and may be treated as surplusage. ^^ § 891. Same. Knowledge of owner. Notice of non- responsibility. A finding outside of the issues must be dis- regarded ; and when, in a suit to enforce the lien of a miner, the complaint contains no allegation that any building or other improvement was constructed upon the lands owned by a mining company, with its knowledge, a finding that at the time of the contract between the claimant and his employer, and during the time of the performance of the labor, the company had full notice and knowledge of such contract, and of all work done by the claimant thereunder, is outside of the issues made by the pleadings, and under section eleven hundred and ninety-two, a decree foreclosing the lien is not supported thereby. ^^ Likewise a finding is outside of the issues, when the complaint alleges a contract made with the owner, through its agent, the employer, who contracted for labor in a mine, and where the finding is applicable to a case =» KeUey v. Plover, 103 Cal. 35, 37, 36 Pac. Rep. 1020. 30 Macomber v. Big-elow, 126 Cal. 9, 13, 58 Pac. Rep. 312. " West Coast L. Co. v. Apfleld, 86 Cal. 335, 342, 24 Pac. Rep. 993 (consent of owner). Finding upon issues,' facts admitted, unnecessary: Orlandl v. Gray, 125 Cal. 372, 58 Pac. Rep. 15 (void contract; fraud). 3= Reese v. Bald Mt. Consol. G. M. Co., 133 Cal. 285, 65 Pac. Rep. 678 (under Kerr's Cyc. Code Civ. Proc., before amendment of 1907). 743 • FINDINGS. §§892,893 in which there was no contract with the owner in any manner whatsoever, but in which the owner is liable, as a penalty for not giving notice of non-responsibility.^^ § 892. SegTegating items of contract price. "Where a con- tract provided a fixed price for a concrete bulkhead, and also expressly provided that any extra concrete-work in a wall was to be charged for at a certain rate, and the court finds that under it the defendant became indebted to the contractors in a sum certain, the finding is sufficient, without segregating the items for contract price and extra work, and finding specifically as to each.^* § 893. Contradictory findings. The findings are not con- tradictory because stating the date of completion of the building, and also that it Was never actually completed, when the}' show that the work ceased on a certain day and such cessation continued for more than thirty days, which facts constituted a completion, under section eleven hundred and eighty-seven.^'^ Party furnishing materials. Where the court finds that certain materials were furnished to the owner by the claim- ant, to be used in the construction of a dwelling-house, the finding is consistent with another finding, that they were partly furnished by a third party, and that such third party ^ Reese v. Bald Mt. Consol. G. M. Co., 3 33 Cal. 285. 288, 65 Pac. Rep. 578 (before amendment of 1907 to § 1192, Kerr's Cyc. Code Civ. Proc.). 5* Gray v. Wells, 118 Cal. 11, 17, 50 Pac. Rep. 23. 3= Marble L. Co. v. Lordsburg H. Co., 96 Cal. 332, 31 Pac. Rep. 164. Con.sistency of findinti^s. As to payment: Petersen v. Shaln (Cal.), 33 Pac. Rep. 1086. As to performance and )s;uaranty; Gray v. Wells, 118 Cal. 11, 14, 16, 50 Pac. Rep. 23. As to uncertain and liypfitlictical findings, and surplusage (per- formance), see Gray v. Wells, lis Cal. 11, 17, 50 Pac. Rep. 23. In a suit I)y a subcontractor to enforce a lien, a finding that the contractor's work was improperly done, not having been sufficiently objected to, the contractor's right to a lien was not affected by the further finding that he knew at the time he did the work that he was not complying with the original contract: Howe v. Schmidt (Cal., June 22, 1907), 90 Pac. Rep. 1056. Idalio. Special finding inconsistent with general verdict: Brad- bury V. Idaho & O. L. I. Co., 2 Idaho 221, 10 Pac. Rep. 620. See Colo- rado I. W. V. Riekenberg, 4 Idaho 705, 43 Pac. Rep. 681. § 894 mechanics' liens. 744 refused to deliver such material until it was paid for, and that thereupon the claimant paid the third party for such material, and furnished it according to their contract with the owner. ^® Performance of contract. And if the findings show how the contract was performed by plaintiff, and stated facts showing that the contract was substantially complied with, they sufficiently sustain an allegation of full performance, notwithstanding a finding that the contractor had not paid all the bills for work done by his subcontractor, as con- templated by an unnecessary provision of the contract for the prevention of liens on public property, which did not and could not accrue in favor of such subcontractor against the person creating the structure. ^^ § 894. Findings in consolidated action. Where a num- ber of suits to enforce liens are consolidated, it is better to have only one set of findings in the consolidated suit. Such a course avoids needless repetitions of facts common to all the cases, prevents possible complications and inconsisten- cies, and is altogether the clearer and more orderly method. The question, however, has been said to be one of good taste and correct method ; and the mere fact that the court makes separate findings in each of the cases is not, in itself, a suffi- cient cause for reversal.^* s« Avery v. Clark, 87 Cal. 619, 628, 25 Pac. Rep. 919, 22 Am. St. Rep. 272. Place o£ delivery of materials; proper finding: See Continental B. & L. Assoc. V. Hutton, 144 Cal. 609, 611, 78 Pac. Rep. 21. 3' Griffith V. Happersberger, 86 Cal. 605, 613, 25 Pac. Rep. 137, 487. Utah. A finding- that a contract was performed in all its terms and requirements includes all the conditions and provisions of the con- tract; and hence is a finding of the fact that there was a compliance with the contract requiring the certificate of the architect that the work was done to his satisfaction: Culmer v. Caine, 22 Utah 216, 61 Pac. Rep. 1008, 1009. 38 Marble L. Co. v. Lordsburg H. Co., 96 Cal. 332, 333, 31 Pac. Rep. 164. In this case there was only one judgment. See Willamette S. M. L. & M. Co. v. Los Angeles College Co., 94 Cal. 229, 29 Pac. Rep. 629. In this case, separate findings were made in each of four cases, and. the practice was hostilely criticized, although there were separate judgments. See " Consolidation," §§ 869 et seq., ante. I 745 FINDINGS. §§ 895, 896 § 895. Findings of fact and conclusions of law. Where the conclusions of law contain an averment that as a conclu- sion from the preceding findings of fact, " the liens of plain- tiffs, and each of them, were not filed within the time required by law," such a statement is not a finding of fact, but is a conclusion of law.^'* Property operated as one mine. And likewise, while a specific finding that property consisting of several mining claims was operated as a single mine is placed among the conclusions of law, yet it is none the less a finding of fact, and the circumstance of being so placed does not affect its character as such.*** § 896. Same. Void contract. With regard to findings, there is a wide difference between a void contract, or con- tract declared to be void under the law, and no contract; for, in the former case, where there is an agreement between competent parties, there is, ex vi termini, a contract, and where the agreement is in writing, a written contract. Hence where the evidence shows the existence of a contract, the fact, with the facts bearing on its validity, should be found, relegating to the conclusions of law — if the court should be of such opinion — the legal conclusion that it is void, under section six hundred and thirty-three of the Code of Civil Procedure, requiring the facts and conclusions of law to be separately stated. And so where the written contract, specifications, and drawings, signed by all the parties, were produced as evidence from the recorder's office, and were legally unobjectionable, findings that the contract was not '» Pierce v. WiUis, 103 Cal. 91, 93, 36 Pac. Rep. 1080. See " Questions of Fact," § 827, and " Questions of Law," § 828, ante. Conclusion of Ia>v misplaced anions findings of fact, considered according to its nature: Towle v. Sweeney, 2 Cal. App. 29, 83 Pac. Rep. 74. Finding: tliat labor performed in a mine " for the development, improveme'-t, protection, and preservation of the said premises," under tlie circumstances of tiie case, regarded as a conclusion: See Reese v. Bald Mountain Consol. G. M. Co., 133 Cal. 285, 289, 65 Pac. Rep. 578. • Hamilton v. Delhi M. Co., 118 Cal. 148, 151, 50 Pac. Rep. 378. §§ 897-899 mechanics' liens. 746 reduced to writing and signed by the parties, or filed in the recorder's office, are against the evidence." § 897. Findings sufficient to support judgment. A gen- eral finding, among others, that on a certain date plaintiff, for the purpose of securing and perfecting a lien for the money due upon the land and premises, pursuant to the pro- visions of the statute, specifically referring to the provisions, filed for record in the office of the recorder of the county where the premises are situated its claim therefor, duly veri- fied, and that such claim of lien is in due form and was filed in due time, and is a valid subsisting claim of lien under the law, seems to be sufficient to uphold a decree enforcing the lien.*^ Pajrment. And a finding that a debt was paid by a note, the receipt therefor expressly stating receipt of " payment by note," is sufficiently supported by the receipt.*^ § 898. Agency. In the absence of counter-proof, the prima facie evidence of agency, by acts under section eleven hundred and eighty-three," — that is, open and continued acts and declarations of any person having charge of the property upon which the labor was done, — is sufficient to support a finding of agency.*^ § 899. Same. Insufficient finding. A finding that the employer was in possession of a mine, under a contract with the owner, authorizing the former to hold possession, make improvements and prosecute development-work, is not a finding that he was the agent of the owner, within the mean- ing of section eleven hundred and eighty-three ; *^ nor is it « California I. C. Co. v. Bradbury, 138 Cal. 328, 330, 71 Pac. Rep. O <^ Q fi 1 T "« Russ L. Co. V. Garrettson, 87 Cal. 589, 596, 25 Pac. Rep. 747. « Jenne v. Burger, 120 Cal. 444, 447, 52 Pac. Rep. 706. See " Evidence," §§ 764 et seq., ante. " Kerr's Cyc. Code Civ. Proe., § 1183. « Donohoe v. Trinity Consol. G. & S. M. Co., 113 Cal. 119, 124, 45 Pac. Rep. 259. « Kerr's Cyc. Code Civ. Proc, § 11 S3. I 747 FINDINGS. §§ 900, 901 a finding that he was the contractor, subcontractor, archi- tect, or builder of the owner; nor that he was the person having charge of any mining, or the construction, alteration, addition to, or repair of any building or other improvement.*^ § 900. Same. Request of owner. In a suit to foreclose the liens of subclaimants under a void statutory original contract, and the findings with reference to each of the liens were, that the labor was performed or materials furnished " at the personal instance and request " of the owner, and that the owner " then and there undertook and agreed to pay for the same," in some cases it appearing either in the find- ings or pleadings that the employment was through the ori- ginal contractor as agent, but, in general, it not being stated whether the claimant was employed bj" the owner personally or by the original conti'actor as the owner's agent, and it is explicitly found in each case that the original contractor was the owner's agent for all the purposes of the building, it is to be inferred that the latter was intended, especially where it is rendered certain by referring to the evidence in the bill of exceptions, even where it does not appear from the findings whether the contractor acted as statutory or merely conventional agent, the findings being equall}^ true, whichever of these two constructions is placed upon them.** § 901. Same. Void contract. Where the pleadings and claim of lien show that the agency of the contractor, in a suit to foreclose a subclaimant's lien under a void statu- tory^ original contract, is the statutory agency, and where the findings are indefinite as to whether the agency was statutory, or actual, or ostensible, the findings will be con- strued to correspond with the pleadings and claim of lien, and will be insufficient to support a personal judgment against the owner.*" « Reese v. Bald Mt. Consol. G. M. Co., 133 Cal. 285, 287, 65 Pac. Rep. 578 (before the amendments of 1903 and 1907 to § 1183, Kerr'd Cjc. Code Civ. Proc). ** McClain v. Hutton, 131 Cal. 132. 143, 61 Pac. Rep. 273, 63 Id. 182, 622. « McClain v. Hutton, 131 Cal. 132, 143, 61 Pac. Rep. 273, 63 Id. 182, 622. §902 MECHANICS LIENS. 748 § 902. When findings may not be attacked. General creditors, who have themselves no liens upon the property, cannot attack the correctness of the findings as to the liens of others who are claimants."*^ It has been held that the find- ings cannot be attacked when a nonsuit has been granted,'^ or when the case has been submitted to the court upon an agreed statement of f acts.^' »• Kennedy-Shaw L. Co. v. Priet, 113 Cal. 291, 293, 45 Pac.Rep. 336. See "General Creditors," §§ 601 et seq., ante; "Appeal," § 982, post. °' Where nonsuit is granted, no oceaslon for any findingii upon the Issues presented by the pleadings: Kennedy & S. L. Co. v. Dusenbery, 116 Cal. 124, 125, 47 Pac. Rep. 1008. See Snell v. Payne, 115 Cal. 218, 220, 46 Pac. Rep. 1069. °^ And likewise where a case is submitted to the trial court upon an agreed statement of facts, the only question being as to what is tlie law applicable to the facts; and where findings are made in such a case, the objection that they are not justified by the evidence can- not be sustained: McMenomy v. White, 115 Cal. 339, 343, 47 Pac. Rep. 109. Agreed statement of facts, findings unnecessary, but not harmful: Towle V. Sweeney, 2 Cal. App. 29, 83 Pac. Rep. 74. Ha^vaii. Findings, when not set aside: Allen v. Redward, 10 Hawn. 151, 153. 749 DECREE. § 903 CHAPTER XLIL DECREE. § 903. General nature of decree foreclosing liens. § 904. Effect of decree on third persons. § 905. Consolidated action. § 906. Kind of money in which judgment is to be satisfied. § 907. Interest. § 908. Same. Contractor. § 909. Same. Unliquidated demands. § 910. Same. Interest of subcontractor's claimants, charge against subcontractor. § 911. Same. Valid contract. Payment of fund into court by owner. § 912. Default. Modiflcatioo of judgment. § 913. Default judgment against owner. § 914. Personal judgment. "When not required. § 915. Same. When obtained. § 916. Same. Purchaser of property assuming debt. § 917. Same. Notice to owner to withhold payments. § 918. Same. Subclaimant against contractor. Default. § 919. Same. When not given. § 920. Same. Death of owner. Recovery against estate. § 921. Same. Jurisdiction of superior court to render personal judgment in suit to foreclose lien. § 922. Deficiency judgment. § 923. Same. Notice to owner to withhold payments. § 924. Same. Judgment for gross amount. § 925. Same. Form of judgment. § 926. Prior mortgage. Decree of sale. § 927. Interests in land. When can be ordered sold. § 928. Recitals in decree. Foreclosure of interest. § 929. Same. Ownership. Knowledge. § 930. Extent of lien. Statutory provision. § 931. Same. Necessity of designating property to be sold. § 932. Same. Effect of failure to define extent of land. § 933. Same. Order directing sale of entire building. § 934. Same. Land necessary for convenient use and occupation. § 903. General nature of decree foreclosing liens. ^ In an action to foreclose meclianies' lions, tlic decree of the court 1 See, generaHy, Kerr's Vye. r«Mlo Civ. Proc. §§ 664 et seq.. and notes; "Practice. In General," §§864 et seq., ante; and see Lan- § 903 mechanics' liens. "50 should adjust the rights of all parties, which are proper to be determined.^ A court of equity will render a judg- caster v. Maxwell, 103 Cal. 67, 36 Pac. Rep. 951; Parke & L.. Co. v. Inter Nos O. & D. Co., 147 Cal. 490, 493, 82 Pac. Rep. 51 (uncertainty in complaint). Vacating judgment for excusable neglect: Dusy v. Prudom, 95 Cal. 646, 30 Pac. Rep. 798. Decree foreclo-sing lien of defendant, setting up sufficient claim entitling to affirmative relief in answer not designated as a cross- complaint: See Holmes v. Richet, 56 Cal. 307, 311, 38 Am. Rep. 54. Colorado. Decree not void; reversible error; sale of several pieces, on one of which no lien; sharing pro rata: See Ryan v. Staples. 76 Fed. Rep. 21, 23 C. C. A. 541, affirming s. c. 62 Fed. Rep. 35. Double judgments: See Eagle G. M. Co. v. Bryarly, 28 Colo. 262. 65 Pac. Rep. 52, 55. Remitting portion of judgment: See Eagle G. M. Co. v. Bryarly, 28 Colo. 262, 65 Pac. Rep. 52, 55. Judgment cannot be rendered for items not set forth in the plead- ings: Briggs v. Bruce, 9 Colo. 282, 11 Pac. Rep. 204. Hawaii. "Record judgment": See Lucas v. Redward, 9 Hawn. 23, 26; Pacific H. Co. v. Lincoln, 12 Hawn. 358, 359. Idaho. Giving force to decree affecting property in another state: See Idaho G. M. Co. v. Winchell, 6 Idaho 729, 59 Pac. Rep. 533, 96 Am. St. Rep. 290. Montana. Judgment founded upon a bill of exchange, reopened by other claimants to determine whether the consideration therefor was in fact labor or materials furnished: Gilchrist v. Helena H. S. & R. Co., 58 Fed. Rep. 708. New Mexico. Decree of foreclosure allowing compensation to a master and his attorney, final judgment, and appealable: See Neher V. Crawford, 10 N. M. 725, 65 Pac. Rep. 156. Conclusiveness of judgment: See Armijo v. Mountain E. Co., 11 N. M. 235, 67 Pac. Rep. 7 26. Curing improper judgment by filing disclaimer thereof: See Pearce V. Albright, 12 N. M. 202, 67 Pac. Rep. 726. Vacating decree: Texas, S. F. & N. R. Co. v. Orman, 3 N. M. 612, 9 Pac. Rep. 253. Oregon. If it nowhere appears in the judgment roll when the liens attached, the judgment would operate as a lien upon the premises as an ordinary judgment from the time it was docketed: Kendall v. McFarland, 4 Oreg. 293 (under statute allowing general execution). Vtah. Separate decrees where action is dismissed as to one of two separate liens joined in the same action: Venard v. Green, 4 Utah 67, sub nom. Venard v. Old Hickory Min. Co., 6 Pac. Rep. 415, 7 Id. 408. Recovering not more tlian demanded: See Culmer v. Caine, 22 Utah 216, 61 Pac. Rep. 1008, 1011. ■Washington. Judgment foreclosing lien as damages in action on contractor's bond not subject to collateral attack: See Gritman v. United States F. & G. Co., 41 Wash. 771, 83 Pac. Rep. 6. 2 Malone v. Big Flat G. M. Co., 76 Cal. 578, 583, 18 Pac. Rep. 772; Bewick v. Muir, 83 Cal. 368, 372, 23 Pac. Rep. 389, s. c. 83 Cal. 373, 23 Pac. Rep. 390. Questions of title cannot be adjudicated therein: See Thorne v. Hammond. 46 Cal. 530, 534 (so as between vendor and vendee). Under act of 1861 (Stats, and Amdts. 1861, p. 495), a decree for the sale of property would not affect the rights of holders of any other 751 DECREE. § 904 ment in favor of each claimant according to the amount which it shall determine each is entitled to receive.^ The court should determine and direct, under proper pleadings, to whom the fund in the hands of the owner should be paid.* § 904. Effect of decree on third persons. In actions to foreclose liens herein considered, the decree for the sale of the premises in its enforcement has the same, and no greater, effect upon the rights of purchasers and encumbran- cers, prior to the commencement of the suit, as a similar decree would have upon the foreclosure of a mortgage. If such purchasers are not made parties, they are in no respect bound by the decree or the proceedings thereunder.'^ kinds of liens, the statute having conferred jurisdiction upon a court of limited powers only: Van Winkle v. Stow, 23 Cal. 458, 461. See "Nature of Lien and Remedies," § 9, and §§ 638 et seq., ante. Arixuna. Bremen v. Foreinan, 1 Ariz. 413, 420, 25 Pac. Rep. 539. Colorado. Bassick M. Co. v. Schoolfleld, 10 Colo. 46, 14 Pac. Rep. 65 (Gen. Stats., §2155); Union Pac. R. Co. v. Davidson, 21 Colo. 93, 39 Pac. Rep. 1095. There inu.st be a judgment ag:ainst the original contractor in a suit by a subcontractor, which cannot be waived: Estey v. Halleck L. Co., 4 Colo. App. 165, 34 Pac. Rep. 1113. Montana. See Johnson v. Puritan M. & M. Co., 19 Mont. 30, 47 Pac. Rep. 337; Masow v. Germaine, 1 Mont. 268 (1865). Nevada. Lonkey v. Wells, 16 Nev. 271; Elliott v. Ivers, 6 Nev. 290. New Mexico. See Post v. Miles, 7 N. M. 317, 34 Pac. Rep. 586. 3 Macomber v. Bigelow, 126 Cal. 9, 15, 58 Pac. Rep. 312. Col»»ra«lo. A court of equity will protect the rights of all parties interested by its decree: Joralmon v. McPhee, 31 Colo. 26, 71 Pac. Rep. 419, 423. Idaho. The court must declare the rank and priorities of liens in its decree: Pacific States S. L. & B. Co. v. Dubois, 11 Idaho 319, 83 Pac. Rep. 513 (an exhavistive decision). * Gamache v. South School Dist., 133 Cal. 145, 149, 65 Pac. Rep. 301. 5 Whitney v. Higgins, 10 Cal. 547, 551, 70 Am. Dec. 748; Hocker V. Kelley, 14 Cal. 164, 165; March v. McKoy, 56 Cal. 85, 87. See "Estoppel," §§816 et seq., ante; "Parties," §§662 et seq., ante. As to validity of decree, on foreclosure of mortgage: See W'atts V. Gallagher, 97 Cal. 47, 51, 31 Pac. Rep. 626; Brackett v. Banegas, 116 Cal. 278, 283, 48 Pac. Rep. 90, 58 Am. St. Rep. 164. Colorado. Persons not served not bound by judgment: Turner v. Sawyer, 150 U. S. 578, bk. 37 L. ed. 1189, 14 Sup. Ct. Rep. 192. Montana. See Davis v. Alvord, 94 U. S. 545, 546, bk. 24 L. ed. 283. >Va.shington. Harrington v. Miller, 4 Wash. 808, 810, 31 Pac. Rep. 325. See Frank v. Jenkins, 11 Wash. 611, 616, 40 Pac. Rep. 220. Decree foreclo.sing lien creates a jiidginent upon premises, as against subsequent purchasers, without the filing in the oflice of the county auditor of a notice of lis pendens, or of a transcript of the judgment: Frank v. Jenkins, supra. See Douthiit V. MacCulsky, 11 Wash. 601, 40 Pac. Rep. 186. §§ 905, 906 mechanics' liens. 752 § 905. Consolidated action. After the consolidation of several actions for the foreclosure of liens, a single judg- ment should be entered directing the sale of the property affected by the liens, and the application of its proceeds to the satisfaction of the amount due to the respective lien- holders; for, among other reasons, if different judgments were entered, there might be different purchasers, and the respective titles acquired by such purchasers would necessi- tate further litigation for the purpose of determining which was superior.^ § 906. Kind of money in which judgment is to be satis- fied. The judgment may be for the same kind of money as agreed upon in the contract ; and the judgment foreclos- ing the lien of laborers of a person in possession of a mine under agreement with the owner to work the same may adjudge payment in gold coin, where the contract with such laborers was to pay in gold coin." It appears, however, to have been held that where the claim of lien mentions " gold coin," the judgment may be for " lawful money of the United States." « In Pacific Mfg. Co. v. Brown, 8 W^ash. 347, 36 Pac. Rep. 273, it was held that where a lien claimant's right to a lien arises subsequent to the commencement of the mortgage foreclosure on the premises, and such lien claimant has actual knowledge of such suit, and does not seek, by intervening or otherwise, to protect his rights, he i3 bound by the judgment in such foreclosure suit; but the burden of proving such actual knowledge of the pendency of said action is upon the party claiming the same, where the claimant is not a party to the action and no lis pendens has been filed; and the fact that the attorney for the foreclosing mortgagee and the lien claimant is the same person is not sufficient. Court has no jurisdiction to foreclose lien as against wife not made party to the action within the statutory period, since a wife is a necessary party to the foreclosure of a mechanic's lien on community property: Northwest B. Co. v. Tacoma S. Co., 36 Wash. 333, 78 Pac. Rep. 996. « Willamette S. M. L. & Mfg. Co. v. Los Angeles College Co., 94 Cal. 229, 233, 29 Pac. Rep. 629. . See '• Consolidation," §§ 869 et seq.. ante. Montana. See Mason v. Germaine, 1 Mont. 268 (1865). AVasiiington. See Douthitt v. MacCulsky, 11 Wash. 601, 40 Pac. Rep. 186. ' Bradbury v. Cronise, 46 Cal. 287, 289 Cgold coin). See Kerr's Cyc. Code Civ. Proc, § 667, and note. • See Neihaus v. Morgan (Cal., June 2, 1896), 45 Pac. Rep. 255. 753 DECREE. § 907 § 907. Interest. Interest may be included in the judg- ment up to the time of its entry, upon the principal sum found due, calculated from the time of payment, where the contract prescribes such time; but if no time of pay- ment is provided, interest may be allowed from the com- mencement of the action to foreclose the lien, or the time of filing the complaint therein;*^ for the lien which the statute » Pacific Mut. L. Ins. Co. v. Fisher, 106 Cal. 224, 233, 39 Pac. Rep. 758. See Trustees v. Heise, 44 Md. 472; Johnson v. Boudry, 116 Mass. 196; Willamette Falls Co. v. Riley, 1 Oreg. 183. Interest on claim from date of filing complaint, in absence of con- tract fixing- specific date of payment. On this point the case of Pacific Mut. L. Ins. Co. v. Fisher, supra, has been followed and ap- proved in Lane v. Turner, 114 Cal. 396, 400, 46 Pac. Rep. 290; Macomber V. Bigelow, 126 Cal. 9, 15, 58 Pac. Rep. 312; Hines v. Miller, 126 Cal. 683, 685, 59 Pac. Rep. 142; Cutting Fruit P. Co. v. Canty, 141 Cal. 692, 697, 75 Pac. Rep. 564. Under Kerr's Cyc. Civ. Code, § 3287, authorizing interest on the recovery of damages certain, or capable of being made certain, interest is allowable on a' claim of lien from the time of the com- mencement of an action to foreclose the same, where, at the time of such commencement, the claim is capable of being made certain, either by computation or by reference to market rates: Farnham v. California S. D. & T. Co. (Cal. App., May 18, 1908), 6 Cal. App. Dec. 721, 96 Pac. Rep. 788, following Macomber v. Bigelow, 126 Cal. 9, 15, 58 Pac. Rep. 312. Same. (Quantum meruit. Not allowed on. A claim for the reason- able value of services, not capable of being made certain by calcula- tion, under Kerr's Cyc. Civ. Code, § 3287, is not entitled to bear interest prior to judgment: Farnham v. California S. D. & T. Co., supra. Payment into court of amount remaining due, to be distributed by the court to claimants entitled thereto, relieves owner of liability to pay interest or costs: Hooper v. Fletcher, 145 Cal. 375, 378, 79 Pac. Rep. 418. Subclaimants entitled to interest from the time the indebtedness became due, in an action to foreclose a lien, and have the same made a lien upon the property: Macomber v. Bigelow, 126 Cal. 9, 15, 58 Pac. Rep. 312. See Pacific Mut. L. Ins. Co. v. Fisher, 106 Cal. 224. 233, 39 Pac. Rep. 758. Same. In case of unliquidated claims, interest cannot be allowed on claim prior to date of rendition of judgment: Cox v. McLaughlin, 76 Cal. 60, 18 Pac. Rep. 100, 9 Am. St. Rep. 164; Easterbrook v. Far- quharson, 110 Cal. 311, 42 Pac. Rep. 811; Swinnerton v. Argonaut L. & D. Co., 112 Cal. 375, 44 Pac. Rep. 719; Macomber v. Bigelow, 126 Cal. 9, 15, 58 Pac. Rep. 312. See post, § 909. Colorado. W'here the debtor agrees to pay interest, it may be allowed: Clear Creek M. Co. v. Root, 1 Colo. 374; otherwise, it seems not: Small v. Foley, 8 Colo. App. 435, 47 Pac. Rep. 64. Montana. Where amounts are vexatiously withheld: Mason v. Germaine, 1 Mont. 273 (1865). Oregon. From time of filing claim: Forbes v. Willamette Falls E. Co.. 19 Oreg. 61, 23 Pac. Rep. 670, 20 Am. St. Rep. 793. See Harris- Mech. Liens — 48 § 908 mechanics' liens. 754 gives the claimant is as extensive as the claim which it is intended to protect.^** If materials are furnished from time to time as they were needed, and claimant received payments on account, his claim is not " unliquidated, and open to be adjudicated " ; and if at the time of the commencement of the action to foreclose the lien the plaintiff's right of recovery on an open account has vested in him, and was capable of being made certain by calculation, he is entitled to recover interest thereon from that date.^^ As being within the rule above stated, interest may be allowed upon the demand from the date when the claim of lien is liled for record, when, under the contract, the amount is due at the time of such filing.^^ § 908. Same. Contractor. In an action to foreclose a contractor's lien, he is entitled to interest at the legal rate upon the respective payments as provided in the original contract, from the dates when they become due; and a decree which directs interest for a period less than that directed by the findings, which prescribed interest from burg- L. Co. V. Washburn, 29 Oreg. 150, 165, 44 Pac. Rep. 390. From time the sum became due: Willamette Falls Co. v. Riley, 1 Oreg. 183. See Forbes v. Willamette Falls B. Co., supra. Utah. From date of lien, when the sums should have been paid: Culmer v. Clift, 14 Utah 286, 47 Pac. Rep. 85. Interest properly allowed on the sum awarded: See Sandberg V. Victor G. & S. M. Co., 24 Utah 1, 66 Pac. Rep. 360, 366. Washington. See Kellogg v, Littell & S. M. Co., 1 Wash. 407, 411, 25 Pac. Rep. 461. Interest allowed only from date of lien claim; no demand for interest in claim, and prayer for interest from date of claim in the complaint: Huetter v. Redhead, 31 "Wash. 320, 71 Pac. Rep. 1016. i» Pacific Mut. L. Ins. Co. v. Fisher, 106 Cal. 224, 233, 39 Pac. Rep. 758. See following note. " See Kerr's Cyc. Code Civ. Proc., § 3287, and note; Pacific Mut. L. Ins. Co. V. Fisher," 106 Cal. 224, 233, 39 Pac. Rep. 758; Covell v. Wash- burn, 91 Cal. 560, 562, 27 Pac. Rep. 859. In Gamble v. Veil, 15 Cal. 508. 510 (1850), it was held that the fact that a judgment on a lien, including a charge of interest at two per cent, given on a prior extension of the lien, which interest was over and above the original contract price for the articles for which the lien is claimed, is not of itself conclusive evidence of fraud in the judgment, and such interest cannot be charged on the premises, as against a subsequent mortgagee. " Hines v. Miller, 126 Cal. 683, 685, 59 Pac. Rep. 142. 755 DECREE. §§ 909-912 the commencement of the trial, does not prejudice the rights of the owner.^^ § 909. Same. Unliquidated demands. As the converse of the rule stated in the last preceding section, interest cannot be allowed upon an unliquidated demand in favor of a subcontractor for the unascertained value of the work done and materials furnished by him, until the amount thereof is fixed by judgment in his favor.^* § 910. Same. Interest of subcontractor's claimants, charge against subcontractor. Those who are employed by subcontractors at fixed rates of compensation, which they are entitled to receive upon completion of their work, may recover interest thereon, and the amount thereof may be decreed to be a lien ujjon the property of the owner; but such interest will be deducted from the amount found due to the subcontractors in the marshaling of the liens.^^ § 911. Same. Valid contract. Payment of fund into court by owner. Where the original contract is valid, and the owner, on the trial of actions to foreclose liens, pays the residue properly remaining in his hands as due the contractor, to be applied toward the payment of claims of lien, the owner is not liable for interest or costs, although an issue was made as to the validity of the contract, which was decided in favor of the owner.^" § 912. Default. Modification of judgment. Where plain- tiff's lien had expired before his action was commenced, ^ Knowles v. Baldwin, 125 Cal. 224, 227, 57 Pac. Rep. 988. M Macomber v. Bigelow, 126 Cal. 9, 14, 58 Pac. Rep. 312. See note to § 907. ante. Thus where the suit is on quantum meruit, and the account Is unliquidated, interest cannot be recovered "prior to the decision of the case," or judgment: Macomber v. Bigelow, 123 Cal. 532, 56 Pac. Rep. 449. 126 Cal. 9, 16, 58 Pac. Rep. 312. I'luintifl' not eutitletl to Interest prior to verdict or judgment in personal action, when debt not susceptible of ascertainment: See Cox V. McLaughlin, 76 Cal. 60, 66, 18 Pac. Rep. 100, 9 Am. St. Rep. 164. " Macomber v. Bigelow, 126 Cal. 9, 14, 58 Pac. Rep. 312. " Hooper v. Fletcher, 145 Cal. 375, 379, 79 Pac. Rep. 418. §§ 913, 914 mechanics' liens. 75G and he takes judgment foreclosing the lien and directing a sale of the property by default, the court, of its own motion, on the next day, may properly modify the judgment to a money judgment only/^ § 913. Default judgment against owner. Where a suit is brought in equity to enforce a mechanic's lien upon an oil claim, and the contract, upon which the suit is brought, was made with a lessee of the oil-land, a default jvidgment should not be entered against the owner, aside from the question whether the constable's certificate of service of the summons, which is not allowed under sections four hundred and ten to four hundred and fifteen,^^ requiring proof by affidavit, is permissible, under section one hundred and fifty- three of the County Grovernment Act of 1897,^^ if there is no allegation in the complaint that the lessee had authority to develop the mine, or that the owner had knowledge that the work was being done, particularly if the mine is charged with a lien for a larger amount than the demand stated in the summons, which, in this particular, does not correspond with the prayer in the complaint.^" § 914. Personal judgment.-^ "When not required. To support a decree foreclosing a mechanic's lien, at least in " Lacore v. Leonard, 45 Cal. 394. See Kennedy-Shaw L. Co. v. Prlet, 113 Cal. 291, 45 Pac. Rep. 336; Miller v. Carlisle, 127 Cal. 327. 330, 59 Pac. Rep. 785. AVashington. Default, and judgment by court commissioner: See Peterson v. Dillon, 27 Wash. 78. 67 Pac. Rep. 397. " Kerr's Cje. Code Civ. Proc, §§ 410-415. ^' See HenuiiiK's General Laws, p. 189. 2» Berentz v. Belmont O. M. Co., 148 Cal. 577, 580, 84 Pac. Rep. 47, 113 Am. St. Rep. 388, aifirining, on this point, s. c. sub nom. Berentz V. Kern King O. & D. Co. (Cal. App., June 17, 1905), 84 Pac. Rep. 45. -' Personal judgement In addition to decree enforcing lien, not void on its face: See Canadian & A. M. & T. Co. v. Clarita L. & L Co., 140 Cal. 672, 677, 74 Pac. Rep. 301. Rigrlit to recover a personal judgment in an action brought to foreclose a mechanic's lien, where tlie lien fails, is in no way depend- ent upon the meclianic's-lien law: Los Angeles P. B. Co. v. Higgins (Cal. App., Aug. 8, 1908), 7 Cal. App. Dec. 164. Claimant entitled to "personal judgment against owner for work and material furnished directly to owner, he having agreed to pay therefor: Farnham v. California S. D. & T. Co. (Cal. App., May 15, 1908), 96 Pac. Rep. 788. 757 DECREE. § 915 eases other than the owner's claimants, it is not necessary that there should be a judgment against the parties person- ally liable ; -^ and a personal judgment against the contrac- tor is not necessary on the part of his subclaimants.-^ The subject of parties defendant may be profitably consulted in connection with this matter.*^ § 915. Same. When obtained. A personal judgment may be obtained, in the action to foreclose the lien, against the party personally liable, under the general principles of law, without counsel fees or expense of preparing and record- ing the mechanic's lien. Thus a personal judgment may be obtained against the owner, by the original contractor, for the value of his work and materials, in a proper case ; -^ or Same. Sewer improvement. Against contractor. Error when. In an action to enforce an equitable lien against the unpaid balance of a sewer-improvement fund, by laborers who performed work upon the sewer at the instance of the subcontractors, who abandoned the work, and which laborers gave notice to withhold payment from the con- tractors upon such abandonment, while they are entitled to have such portion of the fund applied to the payment of their claims, they are not entitled to a personal judgment against the contractors: Goldtree V. San Diego (Cal. App., July 9, 1908), 7 Cal. App. Dec. 101. Plaintiff entitled to a decree foreclosing his lien on the property, as well as a personal judgment against the contractor: Rasmusson v. Liming (Wash., Aug. 3, 1908), 96 Pac. Rep. 1044. AVashlngton. Personal judgment for part of demand for which lien not established: See Spaulding v. Burke, 33 Wash. 679, 74 Pac. Rep. 829 (under 2 Ballinger's Ann. Codes and Stats., §5911). ^ Russ L. & M. Co. V. Garrettson, 87 Cal. 589, 596, 25 Pac. Rep. 747. Oregon. Osborn v. Logus, 28 Oreg. 302, 37 Pac. Rep. 456, 38 Pac. Rep. 190, 42 Pac. Rep. 997. 23 Russ L. & M. Co. V. Garrettson, 87 Cal. 589, 596, 25 Pac. Rep. 747; Western L. Co. v. Phillips, 94 Cal. 54, 55, 29 Pac. Rep. 328. Oregon. Osborn v. Logus, 28 Oreg. 302, 37 Pac. Rep. 456, 38 Pac. Rep. 190, 42 Pac. Rep. 997; Ainslie v. Kohn, 16 Oreg. 363, 374, 19 Pac. Rep. 97. '* See §§ 662 et seq., ante. ^ Morris v. W'ilson, 97 Cal. 644, 647, 32 Pac. Rep. 801. See Gnekow V. Confer (Cal., March 31, 1897), 48 Pac. Rep. 331. Colorado. Cannon v. Williams, 14 Colo. 21, 23 Pac. Rep. 456 (1883); St. Kevin Min. Co. v. Isaacs, 18 Colo. 400, 32 Pac. Rep. 822; Finch v. Turner, 21 Colo. 287, 40 Pac. Rep. 565; Lowrey v. Svard, 8 Colo. App. 357, 46 Pac. Rep. 619. Contra (under act of 1872): Hart v. Mullen, 4 Colo. 512 (materials); Barnard v. McKenzie, 4 Colo. 251. Montana. Gilliam v. Black, 16 Mont. 217, 40 Pac. Rep. 303. No personal judgment can be rendered against the owner when the service of the summons is by pulilication : Richards v. Lewisohn, 19 Mont. 128, 130, 47 Pac. Rep. 645; nor against the contractor, although § 915 mechanics' liens. 758 against the contractor, by a subclaimant with whom the former has contracted ; -'' or against the subcontractor, by the lien may be foreclosed: O'Rourke v. Butte Lodge, 19 Mont. 541, 48 Pac. Rep. 1106. IVo personal judgment was allowed on a separate several contract against one of joint debtors, on a claim secured by lien, in an action to foreclose the same against them: Nolan v. Lovelock, 1 Mont. 224, 229. Personal judgment in foreclosure, under act of 18G4, not allowed: Riale v. Roush, 1 Mont. 474; Mochon v. Sullivan, 1 Mont. 470. New Mexico. Contra to text: See Rupe v. New Mexico L. Assoc, 3 N. M. 261, 5 Pac. Rep. 730. Oregon. As an equity court is entirely without jurisdiction to enter a judgment or decree in a mechanic's-lien case against the property-owner in excess of the amount for which the lien is allowed, its power ends with the ascertainment of the amount of the lien and its enforcement, even where the contract is directly with the owner: Allen v. Blwert, 29 Oreg. 428, 44 Pac. Rep. 823, 48 Pac. Rep. 54, approving and following Ming Yue v. Coos Bay R. & E. R. & N. Co., 24 Oreg. 392, which holds that, under the provisions of the Oregon law, which maintains the distinction between suits in equity and actions at law, although it abolishes the difference in the forms at law, a complaint for the foreclosure of a mechanic's lien, which does not state a cause of suit, cannot be retained as an action at law to recover moneys; following Beacannon v. Liebe, 11 Oreg. 443. 5 Pac. Rep. 273; Burrage v. Bonanza G. & Q. M. Co., 12 Oreg. 169, 6 Pac. Rep. 766. "U'ashington. Spears v. Lawrence, 10 Wash. 368, 38 Pac. Rep. 1049, 45 Am. St. Rep. 789. See Littell v. Miller, 8 Wash. 566, 36 Pac. Rep. 492. 28 Kennedy-Shaw L. Co. v. Priet, 113 Cal. 291, 293, 45 Pac. Rep. 336; Kennedy-Shaw L. Co. v. Dusenbery, 116 Cal. 124, 126, 47 Pac. Rep. 1008: Marchant v. Hayes, 120 Cal. 137, 139, 49 Pac. Rep. 840. Colorado. Hume v. Robinson, 23 Colo. 359, 362, 47 Pac. Rep. 271. Personal judgment against party liable, under 3 Mills's Ann Stats., 1st ed., § 2894. See American Nat. Bank v. Barnard, 15 Colo. App. 110, 61 Pac. Rep. 200, 202. Void personal judgment or for lien foreclosure: See Schweitzer v. Mansfield, 14 Colo. App. 236, 59 Pac. Rep. 843. Montana. Goodrich L. Co. v. Davie, 13 Mont. 76, 32 Pac. Rep. 282. AVashington. Peterman v. Milwaukee B. Co., 11 Wash. 199, 200, 39 Pac. Rep. 452. Under a previous act, an appeal from a decree of foreclosure of a mechanic's lien, which resulted in the reversal of the decree on account of the invalidity of the lien, will not affect a personal judgment obtained against the contractor in the foreclosure proceedings under the code of 1881, when he is not joined in the appeal: Littell v. Miller, 8 Wash. 566, 36 Pac. Rep. 492. In this case it was said, speaking of the cases of Hildebrandt v. Savage, 4 Wash. 524, 30 Pac. Rep. 643, 32 Pac. Rep. 109, and Eisenbeis v. Wakeman, 3 Wash. 534, 28 Pac. Rep. 923: "Upon a careful consideration of the opinions, in the light of the facts before the court, it will be seen that they did not go to the extent of holding that a judgment against the contractor, under the circumstances of these cases, would be absolutely void. The most that can be said to have been established by these cases is. that the rendition of a judgment against the contractor, in a suit 759 DECREE. §§ 916, 917 his material-man, for material purchased by the former, and used in the building.-^ § 916. Same. Purchaser of property assuming debt. If a purchaser of the property agrees to pay the debt at the time of the purchase, and assumes the debt, a personal .judg- ment may be rendered against him, if he is made a party to the foreclosure of the lien,^^ in the same manner that a deficiency judgment may be entered against the grantee of a mortgager, who has assumed the mortgage debt.-" § 917. Same. Notice to owner to withhold pa5niients. A personal judgment may also be rendered against the employer upon sufficient notice to such employer to stop payments due from the employer to the original contractor, under section eleven hundred and eighty-four,^° in the man- ner heretofore pointed out,^^ which notice is in the nature to foreclose, after it had been adjudged that no lien existed, would be erroneous." Tacoma L. & Mfg. Co. v. Wolff, 7 Wash. 478, 35 Pac. Rep. 115, 755, was cited as establishing that doctrine (Stiles, J., dissenting). See also Tacoma L. Co. v. Wolff, 5 Wash. 264, 31 Pac. Rep 753, 32 Pac. Rep. 462; Warren v. Quade, 3 Wash. 750, 755, 29 Pac. Rep. 827. The case of Hildebrandt v. Savage, supra, cited the Colorado cases of Barnard v. McKenzie and Cannon v. Williams, supra, to tlie effect that where the statute does not authorize the same, in a suit in a court cf equity to foreclose the lien no tersonal judgment can be obtained where the lien fails, and the case of Schettler v. Vendome Turkish Bath Co., 2 Wash. 457, 27 Pac. Rep. 76, was also cited to that effect; and it was held that the case of Kellogg v. Littell & S. Mfg. Co., 1 Wash. 407, 25 Pac. Rep. 461, was not in conflict with this position, the distinguishing feature in the latter case being that there had been no objection to the trial of these matters in the equitable proceeding, and tliere had been no demand for a jury trial; a dissenting opinion, however, on the point last stated, being filed. Wyomiug. Fein v. Davis, 2 Wyo. 118, 124 (although the lien was not sustained). =' Davies-Henderson L. Co. v. Gottschalk. 81 Cal. 641, 647, 22 Pac. Rep. 860. See McMenomy v. White, 115 Cal. 342, 343, 47 Pac. Rep. 132; Marchant v. Hayes, 120 Cal. 137, 139, 52 Pac. Rep. 154; Humboldt L. & M. Co, V. Crisp, 146 Cal. 686, 688, 81 Pac. Rep. 30, 106 Am. St. Rep. 75, 2 Am. & Eng. Ann. Cas. 811. =" San Francisco P. Co. v. Fairfield, 134 Cal. 220, 226, 66 Pac. Rep. 255. *■• Hopkins v. Warner, 109 Cal. 133, 41 Pac. Rep. 868; San Fran- cisco Pav. Co. v. Fairfield, 134 Cal. 220, 226, 66 Pac. Rep. 255. '-'> Kerr's Cyc. Code Civ. Proc, § 1184. " SS 547 et seq., ante. i§ 918, 919 MECHANICS LIENS. 760 of a garnishment of such moneys either due or to become due.^- § 918. Same. Subclaimant against contractor. Default. Where a judgment of nonsuit is granted, in a consolidated action, in favor of the owners, against one of the subclaim- ants, for insufficiency of his claim of lien, the claimant still remains a party to the consolidated action as against the other plaintiffs in the several actions and against the contractor. When, in such case, however, the contractor defaults, the lien claimants may recover judgment against him by default.^^ § 919. Same. When not given. In an action to enforce a lien of mechanics and others for materials furnished or labor performed, neither a personal judgment for the amount of the claim, ^* nor for a deficiency,^^ can be rendered against 32 First Nat. Bank v. Ferris Irr. Dist., 107 Cal. 55, 65, 40 Pac. Rep. 45; Bates v. Santa Barbara County, 90 Cal. 543, 547, 27 Pac. Rep. 438. See " Cumulative Remedies," §§ 638 et seq., ante. Oregon. Contra: Allen v. Blwert, 29 Oreg. 429, 44 Pac. Rep. 823, 45 Pac. Rep. 54; Ming Yue v. Coos Bay R. & E. R. & N. Co., 24 Oreg. 392, 33 Pac. Rep. 641. S3 Kennedy-Shaw L. Co. v. Dusenbery, 116 Cal. 124, 126, 47 Pac. Rep. 1008. See " Evidence," §§ 795 et seq., ante. Montana. Personal judgment on failure to establish lien: See Mason v. Germaine, 1 Mont. 267 (1865). 2^ Barber v. Reynolds, 44 Cal. 519, 537; Eaton v. Rocca, 75 Cal. 93, 97, 16 Pac. Rep. 529; Phelps v. Maxwell's Creek G. M. Co., 49 Cal. 336, 338; Giant P. Co. v. San Diego F. Co.. 78 Cal. 193, 200, 20 Pac. Rep. 419; Gibson v. W^heeler, 110 Cal. 243, 246, 42 Pac. Rep. 810; Gnekow v. Confer (Cal., March 31, 1897), 48 Pac. Rep. 331; Santa Clara V. M. & L. Co. v. Williams (Cal., Dec. 8, 1892), 31 Pac. Rep. 1128. See Neihaus v. Morgan (Cal., June 2, 1896), 45 Pac. Rep. 255. See "Liability of Owner," §§523 et seq., ante; "Cumulative Reme- dies," §§ 638 et seq., ante. Under peculiar statute of 1861 (Stats, and Amdts. 1861, p. 495), a personal judgment had to be recovered in another action in a court of competent jurisdiction: Van Winkle v. Stow, 23 Cal. 457, 459. See McNeil V. Borland, 23 Cal. 144. Colorado. Lowrey v. Svard, 8 Colo. App. 357, 46 Pac. Rep. 619; Hume V. Robinson, 23 Colo. 359, 47 Pac. Rep. 271. Montana. Gilliam v. Black, 16 Mont. 217, 40 Pac. Rep. 303 (agent). Washington. Mentzer v. Peters, 6 Wash. 540, 33 Pac. Rep. 1078 (owner). But see Kellogg v. Littell & S. Mfg. Co., 1 Wash. 407, 411, 25 Pac. Rep. 461. 35 See Kerr's Cye. Code Civ. Proc, § 1194. Act of March 30, 1868, § 10, subd. 2, providing that each claimant shall be entitled to an execution for any balance found due him after 761 DECREE. §§ 920-922 those defendants against whom no personal claim has been established according to the general principles of law, even if the statutory original contract is void.^*' § 920. Same. Death of owner. Recovery against estate. Where the owner dies, the suit of subchiiniauts to foreclose a lien upon the property, being in the nature of a proceeding in rem, in which no personal judgment is rendered against the owner, there can be no recovery against his estate, pay- able in due course of administration.^^ § 921. Same. Jurisdiction of superior court to render personal judgment in suit to foreclose lien. When the supe- rior court acquires jurisdiction by the filing of a suit to fore- close a mechanic's lien, it has jurisdiction to render a personal judgment for the amount claimed, although the right to the lien is denied, and the amount claimed is less than three hun- dred dollars.^® § 922. Deficiency judgment. " Whenever, in the sale of the property subject to the lien, there is a deficiency of proceeds, judgment may be docketed for the deficiency, in like manner and with like effect as in actions for the fore- closure of mortgages " ; ^^ and a personal judgment may be docketed against the owner,**' or contractor, for such the disposition of the proceeds of the sale, must be confined to those cases in which a defendant, upon general principles of law, and irrespective of the provisions of the act, would be personally liable for the work done and materials furnished: Phelps v. Maxwell's Creek G. M. Co., 49 Cal. 33G, 338. See preceding- note. 36 Kellogg V. Howes, 81 Cal. 170, 180, 22 Pac. Rep. 509, 6 L. R. A. 588; Southern Cal. L. Co. v. Schmitt, 74 Cal. 625, 627, 16 Pac. Rep. 516: Davies-Henderson L. Co. v. Gottschalk. 81 Cal. 641, 647, 22 Pac. Rep. 860; First Nat. Bank v. Ferris Irr. Dist., 107 Cal. 55, 65, 40 Pac. Rep. 45. " Booth v. Pendola, 88 Cal. 36, 44, 23 Pac. Rep. 200, 24 Id. 714, 25 Id. 1101. Non-presentation of claim, owner's laborer: WeithofC v. Murray, 76 Cal. 508, 511, 18 Pac. Rep. 435. =« Mannix v. Tryon (Cal. Sup., Sept. 19, 1907), 91 Pac. Rep. 983, affirming Becker v. Superior Court (Cal. Sup., May 21, 1907), 90 Pac. Rep. 689, whicli overrules, on this point, Miller v. Carlisle, 127 Cal. 327, 59 Pac. Rep. 785. 3" Kerr's Cje. Code Civ. Proc., § 1194. *" See Pacific Mut. L,. Ins. Co. v. Fisher, 106 Cal. 224. 231, 39 Pac. Rep. 758. §§ 923-925 mechanics' liens. 762 deficiency as each may be personally liable for to the per- sons with whom he dealt.*^ § 923. Same. Notice to owner to withhold payments. In like manner, a deficiency judgment against the person to whom the materials were furnished, or for whom the work was performed, may be obtained in an action to subject the unpaid portion of the contract price to the payment of the claimant's claim, after notice to the owner,^" provided for in section eleven hundred and eighty-four,*^ in the manner heretofore pointed out,** without seeking to enforce a lien against the building.*^ § 924. Same. Judgment for gross amount. In an action foreclosing miners' liens, the court must determine the amount for which the defendants are liable to the plain- tiffs, in order that it may be seen, when the sheriff's return comes in, whether there is a deficiency in the proceeds of sale ; and this determination b}' the court is its judgment upon the allegations of the plaintiffs in this respect, and, under section six hundred and sixty-eight, is properly entered by the clerk in the " judgment-book." *^ § 925. Same. Form of judgment. In a suit to enforce miners' liens, where the decree declares that '' judgment be, and the same is hereby, entered in favor of plaintiffs and against defendants," in certain specified sums, and that the liens are foreclosed, and directs that the property be sold, and if the amount derived from the sale is insufficient, « Giant P, Co. v. San Diego F. Co., 78 Cal. 193, 200, 20 Pac. Rep. 419; Wood v. Oakland & B. R. T. Co., 107 Cal. 500, 502, 40 Pac. Rep. 806. New Mexico. • Ford v. Springer Land Assoc, 8 N. M. 37, 41 Pac. Rep. 541. AVashin^on. Execution for deficiency: See Eisenbeis v. Wakeman, S Wash. 534, 539, 28 Pac. Rep. 923. ** See §§ 547 et seq.. anta. « Kerr's Cyc. Code Civ. Proc., § 1184. ** See §§ 547 et seq., ante. « Bates V. Santa Barb'ara County, 90 Cal. 543, 548, 27 Pac. Rep. 438. « Hines v. Miller, 126 Cal. 683, 685, 59 'Pac. Rep. 142 (under Kerr's Cyc. Code Civ. Proc, § 668). Utali. Deficiency judgment against building after sale of land: See Sanford v. Kunkel, 30 Utah 379, 85 Pac. Rep. 363, 1012. 763 DECREE. §§ 926-928 judgment for deficiency be docketed, such judgment is not enforceable as a personal judgment, except for such defi- ciency as may be shown upon the return of the sheriff. Such judgment will not be reversed by the appellate court upon the theory that a personal judgment, except for such deficiency, was not authorized.*^ § 926. Prior mortgage. Decree of sale. In a suit to enforce a senior mortgage and mechanics' liens, the mort- gage affecting onl}- part of the lands embraced in the other liens, a judgment providing for the sale, in satisfac- tion of the mechanics' liens, of the mortgaged lands is errone- ous ; ** and when all the questions relating to the liens are involved in another suit, the judgment foreclosing the senior mortgage should be modified so as to confine it to the fore- closure of the senior mortgage and to securing any surplus resulting from the sale of the premises affected by the mort- gage for the benefit of the holders of the mechanics' liens.*^ § 927. Interests in land. When can be ordered sold. The interest of any one in the property upon which a lien for labor performed upon or materials furnished for the same is sought to be enforced cannot be adjudged to be sold, unless his liability is under the statute, or otherwise proved under proper averments in the complaint in the action to foreclose the lien.^° § 928. Recitals in decree. Foreclosure of interest. In an action to foreclose the liens of mechanics and others for materials furnished for or labor performed upon real prop- erty, the decree should recite that the defendants are for- ever barred and foreclosed of all right, etc., " from and after the delivery of the sheriff's deed, after sale as hereinafter provided." ^^ « Hines v. MiUer, 126 Cal. 683, 59 Pac. Rep. 142. « McClain v. Hutton, 131 Cal. 132, 141, 61 Pac. Rep. 273, 63 Id. 1S2, 622; Willamette S. M. Co. v. Kremer, 94 Cal. 205, 29 Pac. Rep. 633. " McClain v. Hutton, 131 Cal. 132, 141, 61 Pac. Rep. 273, 63 Id. 182, 622. "« Eaton V. Rocca, 75 Cal. 93, 97, 16 Pac. Rep. 529; Phelps v. Max- well's Creek G. M. Co., 49 Cal. 336, 338. " Castagnetto v. Coppertown Co., 146 Cal. 329, 80 Pac. Rep. 74. §§ 929, 930 mechanics' liens. 764 § 929. Same. Ownership. Knowledge. It is not neces- sary, in the judgment foreclosing the lien, to repeat that at the time of the commencement of the action the land belonged to the person who caused the building to be con- structed, or that it was erected with his knowledge, where these allegations are made in the complaint, and found to be true by the court.^^ § 930. Extent of lien. Statutory provision. Section eleven hundred and eighty-five -'^^ provides : " The land upon which any building, improvement, well, or structure is con- structed, together with a convenient space about the same, or so much as may be required for the convenient use and occupation thereof, to be determined by the court on rendering judgment, is also subject to the lien, if, at the commencement of the work, or of the furnishing of the materials for the same, the land belonged to the person who caused said building, improvement, well, or structure to be constructed, altered, or repaired, but if such person owned less than a fee-simple estate in such land, then only his interest therein is subject to such lien." ^* " Dusj^ V. Prudom, 95 Cal. 646, 649, 30 Pac. Rep. 798. Montana. It is not necessary for claimant to claim, upon fore- closure, the right to remove improvements upon which his lien has been enforced, or to have the decree provide for such removal within a reasonable time: Grand Opera House Co. v. McGuire, 14 Mont. 558, 37 Pac. Rep. 607. New Mexico. " If it should appear, on a hearing, that any portion of the property upon which the labor was performed, or in the con- struction of which the materials were used, did not become a part of the realty, or that the same was severed therefrom after the lien had attached, the decree can be so molded as to reach such property" (dictum): Post v. Miles, 7 N. M. 317, 34 Pac. Rep. 586. In an action at law, if a joint liability is charged, judgment cannot be entered separately against one of the parties; and in an action in assumpsit a judgment to enforce a mechanic's lien cannot be entered against any or all the parties: Rupe v. New Mexico L. Assoc, 3 N. M. 393, 9 Pac. Rep. 301. See Straus v. Finane, 3 N. M. 398, 5 Pac. Rep. 729; Finane v. Las Vegas H. & I. Co., 3 N. M. 256, 5 Pac. Rep. 725. « Kerr's Cyc. Code Civ. Proc., § 1185. M See §§ 438 et seq., §§ 399 et seq., §§ 166 et seq., and §§ 717 et seq., ante. Arizona. Interest of vendor not causing improvement can only be sold by ordering payment of unpaid purchase price: Bremen v. Fore- man, 1 Ariz. 413, 25 Pac. Rep. 539 (Comp. Laws, p. 248, § 4), 765 DECREE. §§ 931-933 § 931. Same. Necessity of designating property to be sold. In an action to foreclose the lien, it is necessary that the property which the plaintiff seeks to subject to sale therefor shall be definitely, described, and that the judg- ment shall specifically designate the property affected by the lien and directed to be sold; otherwise the officer exe- cuting the judgment can neither point out the property which he offers for sale, nor place the purchaser in possession thereof, and the deed which he may execute will not convey any title. ^^ § 932. Same. Effect of failure to define extent of land. But failure of the court to define the exact amount or extent of land necessary for the building does not invalidate the decree, and it will not be reversed upon appeal of the owner. In such case, however, it maj^ be that the purchaser would acquire no land beyond that covered by the building described in the decree.^® § 933. Same. Order directing sale of entire building. "Where it appears that the building covers more land than is described in the complaint, but the claim of lien is suffi- cient to embrace the entire building, the court should direct amendments to the complaint, so that it may conform to the proofs. The court should then direct the sale of the entire building, and such land as it should determine to =5 Gamble v. VoH, 15 Cal. 507, 510; Willamette S. M. Co. v. Kremer, 94 Cal. 205, 210, 29 Pac. Rep. 633. ^ Sidlinger v. Kerkow, 82 Cal. 42, 45, 22 Pac. Rep. 932. Thus "Where the claim of lien describes the land around the building on which the lien is claimed, in these words, " witli such convenient space of land around tlie same as may be required for the convenient use and occupation tliereof," the description is sufficient; but it is proper for the court, by its decree, to define tlie amount and extent of land connected with the building, which is properly subject to the lien, and if the decree follows the description in the claim, it does not invalidate the decree, but it is doubtful whether the purchaser will acquire any land beyond that covered by tlie building: Tiljbetts V. Moore, 23 Cal. 208, 213. Montana. Vantilburgh V. Black, 2 Mont. 371. Nevada. See Dickson v. Corbett, 11 Nev. 277. Kew Mexico. Description by metes and bounds, or government surveys, governs quantities: Ford v. Springer L. Assoc, 8 N. M. 37, 41 Pac. Rep. 541. § 934 mechanics' liens. 766 be required for the convenient use and occupation thereof. A decree which directs a sale of only that part of the build- ing which is upon the premises set forth in the complaint is erroneous. °^ § 934. Same, Land necessary for convenient use and occupation. It is not necessary to repeat the statement in the judgment, that the land directed to be sold is all neces- sary for the convenient use and occupation of the build- ing, where the complaint, in the action of foreclosure of the lien, alleges that all of such land is necessary for such use and occupation, and the court finds this allegation to be true.^^ The decree, in the absence of any description of more land for its convenient use and occupation, directs the sale only of the building, and the land on which it is situated.^** " Willamette S. M. Co. v. Kramer, 94 Cal. 205, 210, 29 Pac. Rep. 633. Colorado. Separate liens on land and building; decree appor- tioning liens and establishing priorities: See Joralmon v. McPhee, 31 Colo. 26, 71 Pac. Rep. 419. =» Dusy V. Prudom, 95 Cal. 646, 649, 30 Pac. Rep. 798. See §§ 438 et seq., ante. New Mexico. Decree ordering sale of entire mining claim proper, without reciting that all is necessary for convenient use and occupa- tion, where no structure has been erected; and testimony must be taken in lower court, in order to limit extent of lien: See Post v. Fleming, 10 N. M. 476, 62 Pac. Rep. 1087, 1090. s» Newell V. Brill, 2 Cal. App. 61, 64, 83 Pac. Rep. 76. See Sidlinger V. Kerkow, 82 Cal. 42, 22 Pac. Rep. 932. 767 COSTS AND AT'i'ORNEYS' FEES. § 935 CHAPTER XLIII. COSTS AND ATTORNEYS' FEES. § 935. Costs and attorneys' fees. Statutory provision. § 936. Costs. Preparing, filing, and recording claim of lien. § 937. Same. Recovery by owner. § 938. Same. Recovery of costs against owner. Prolonging liti- gation. § 939. Same. Owner may set off costs and interest against con- tractor when. § 940. Attorneys' fees. Unconstitutionality of provision. § 941. Same. Attorneys' fees not allowed, except on foreclosure of liens on property. § 942. Same. Nature of attorneys' fees allowed, and their relation to costs. § 943. Same. Measure of attorneys' fees. § 944. Same. Relation of legal services to action. § 945. Same. Agreement as to fees. § 946. Same. Lower court fixing attorneys' fees in supreme court. § 947. Same. When owner not liable for attorneys' fees. § 935. Costs and attorneys' fees.^ Statutory provision. Section eleven hundred and ninety-five- provides: "The ' Costs. Completion of trial before expiration of five days after offer of compromise: See Scammon v. Denio, 72 Cal. 393, 14 Pac. Rep. 98. See, generally, " Obligations of Owner," §§ 523 et seq., ante, and " Constitutionality," § 40, ante. Colorado. Appropriation of money to pay costs to accrue not to be applied to judgment: See Schweizer v. Mansfield, 14 Colo. App. 236, 59 Pac. Rep. 843. See Sayre-Newton L. Co. v. Union Bank, 6 Colo. App. 541, 41 Pac. Rep. 844. Idaho. Cost of protesting an acceptance cannot be included in decree as damages: Bradbury v. Idaho & O. L. I. Co., 2 Idaho 221, 10 Pac. Rep. 620. 3Iontaua. Provision for attorneys' fees (Comp. Stats., § 1394) held applicable to all liens in chapter on liens: Wortman v. Kleinschmidt, 12 iMont. 316, 30 Pac. Rep. 280 (1889). Oregon. Refusal of trial court to allow costs in suit in equity (to foreclose mechanic's lien) will not be reviewed, except in case of an abuse of discretion: Leick v. Beers, 28 Oreg. 483, 43 Pac. Rep. 658. Division of costs sustained: Chamberlain v. Hibbard, 26 Oreg. 428, 38 Pac. Rep. 437. ^ Kerr's Cyc. Code Civ. Proc, § 1195. § 936 mechanics' liens. 768 court must also allow, as a part of the costs, the money paid for filing and recording the lien, and reasonable attor- neys' fees in the superior and supreme courts, such costs and attorneys' fees to be allowed to each lien claimant wiiose lien is established, whether he be plaintiff or defendant, or whether they all join in one action or separate actions are consolidated." ^ § 936. Costs. Preparing, filing, and recording claim of lien. Notwithstanding the holding of the court that attor- neys' fees may not constitutionally be allowed, which is dis- cussed elsewhere,* it has been determined that the sraaii expense of filing the claim of lien is properly included in the phrase " costs and disbursements." ^ The right to recover the costs of filing and recording the claim of lien, like the general right to recover costs, is a necessary incident to the judgment establishing the lien,'' and does not depend upon any averments in the complaint, except such as are neces- sary to establish the lien, but the costs of preparing a claim of lien, or attorneys' fees therefor, are not a part of such costs.'^ ' See "Consolidation," §§869 et seq., ante; Kerr's Cyc. Code Civ. Proc, § 1184. W'ithliolding; costs by the o-»vuer, after notice: See " Notice," §§ 547 et seq., ante. See Kerr's Cyc. Code Civ. Proc, § 1193. Recovery of costs from the contractor l>y the owner: See " Riglits of Owner," §§ 510 et seq., ante. New Mexico. Master adding unnecessary expenses as to notice of sale, etc., before redemption period has expired, cannot recover back such expenses, if the liens are paid before the redemption period expires: Neher v. Crawford, 10 N. M. 725, 65 Pac. Rep. 156. Unnecessary expenses on sale not costs: See Neher v. Crawford, 10 N. M. 725, 65 Pac. Rep. 156. * See § 40, ante, and § 940, post. ^ Builders' S. Depot v. O'Connor (Cal., Jan. 10, 1907), 88 Pac. Rep. 982, 985. 8 Mulcahy v. Buckley, 100 Cal. 484, 490, 35 Pac. Rep. 144. See Carriere v. Minturn, 5 Cal. 435; Rapp v. Spring Valley G. Co., 74 Cal. 532, 16 Pac. Rep. 325; West Coast L. Co. v. Newkirk, 80 Cal. 275, 22 Pac. Rep. 231. ' Mulcahy v. Buckley, 100 Cal. 484, 490, 35 Pac. Rep. 144. See Kerr's Cye. Code Civ. Proc, § 1184. It has been held that in an action to foreclose a lien of a material-man and of subcontractors in tlie elty and county of San Francisco, the plaintiffs, as the prevailing parties, were entitled to recover as costs the percentage of the amount recovered allowed by the act of February 9, 1866: Golden Gate L. Co. V. Sahrbacher, 105 Cal. 114, 118, 38 Pac. Rep. 635. ^1 769 COSTS AND attorneys' fees. §§ 937-939 Void contract. Contractor's right to costs. Where the statutory original coutraet is void, the original contractor has no lien, and in an action on the implied contract, he cannot recover counsel fees or expenses of preparing or recording a claim of lien.^ § 937. Same. Recovery by owner. Where the owner obtains a nonsuit against a lien claimant for the insufficiency of his claim of lien, the former is entitled to a judgment against the latter for costs, although the latter may remain a party to the action, as against other parties than the owner.® § 938. Same. Recovery of costs against owner. Pro- longing litigation. It has been held that where the con- tractor defaults in a suit _ to enforce a lien by his subclaim- ant, and thus there is no contest between the contractor and his subclaimants, and the owner, apparently without cause or right, raises a contest on every point, and litigates the case to the end, the latter thereby delays the claimants in recovering the money justly due, and puts them to unne- cessary expense ; and, under a valid original contract, the balance due thereunder is not the limit of the owner's liabil- ity, so far as costs and attorneys' fees are concerned, but they are properly allowed, and made payable out of the proceeds of the property ordered to be sold.^° § 939. Same. Owner may set off costs and interest against contractor when. In an action by the contractor against the owner, the latter may set off the amount paid by him upon foreclosure of the liens of material-men for materials furnished the contractor, including the amount AVasliinKton. Costs may be ordered paid out of amount tendered and deposited by the owner Into court: Kruegel v. Kitchen, 33 Wash. 214, 74 Pac. Rep. 373. » Morris v. MMlson, 97 Cal. 644, 647, 32 Pac. Rep. 801. » Kennedy-Shaw L. Co. v. Dusenbery, 116 Cal. 124, 126, 47 Pac. Rep. 1008. " De Camp L. Co. v. ToUnirst, 99 Cal. 631, 63.^, 34 PaO. Rep. 438. See also Covell v. Washburn, 91 Cal. 560, 27 Pac. Rep. 859. See " Obligrations of Owner," §§ 523 et seq., ante; and § 944, post. Mech. Liens — 49 § 940 mechanics' liens. 770 allowed and paid for attorneys' fees and costs/^ as Avell as for principal and interest on the liens ; ^~ but where the owner had accepted and agreed to pay orders of the con^ tractor, he cannot recover the costs and expenses incurred by reason of his refusal to pay them.'^^ § 940. Attorneys' fees. Unconstitutionality of provision. The California courts, as has already been shown,^* after some wavering, and in line with the decisions of some and against the ruling in other states, have held that the pro- vision of the statute ^^ providing an allowance for attorneys' fees is unconstitutional.^® This rule must be considered as " Clancy v. Plover, 107 Cal. 272, 275, 40 Pac. Rep. 394; Covell v. Washburn, 91 Cal. 560, 27 Pac. Rep. 859. See " Obligations of Owner," §§ 523 et seq., ante. 12 Covell V. Washburn, 91 Cal. 560, 562, 27 Pac. Rep. 859. « Adams V. Burbank, 103 Cal. 646, 651. 37 Pac. Rep. 640. See " Obligations of Owner," §§ 523 et seq., ante. " See § 40, ante. " Kerr's Cyc. Code Civ. Proc, § 1195. 18 Mannix v. Tryon (Cal. Sup., Sept. 19, 1907), 91 Pac. Rep. 983 (judgment modified by striking out allowance); Union L. Co. v. Simon (Cal. Sup.), 89 Pac. Rep. 1081, rever.sing s. c, on this point (Cal. App., March 13, 1906), 89 Pac. Rep. 1077; Builders' Supply Depot V. O'Connor (Cal., Jan. 10, 1907), 88 Pac. Rep. 982, 985; H. Raphael Co. V. Grote (Cal., Aug. 10, 1908), 36 Cal. Dec. 125; Los Angeles P. B. Co. V. Los Angeles P. B. & D. Co. (Cal. App., Jan. 23, 1908), 94 Pac. Rep. 775; Hill v. Clark (Cal. App., Feb. 28, 1908), 95 Pac. Rep. 382, Farnham v. California S. D. & T. Co. (Cal. App., May 15, 190S), 96 Pac. Rep. 788; Los Angeles P. B. Co. v. Higgins (Cal. App., July 9, 1908), 7 Cal. App. Dec. 95. Error to a.sses.«« attorney fees in costs: H. Raphael Co. v. Grote (Cal., Aug. 10, 1908), 36 Cal. Dec. 125: Hall v. Clark (Cal. App., Feb. 28. 1908), 95 Pac. Rep. 382; Farnham v. California S. D. & T. Co. (Cal. App., May 15, 1908), 96 Pac. Rep. 788. Even though provided for by statute; Hill v. Clark (Cal. App., Feb. 28, 1908), 95 Pac. Rep. 382. Earlier decisions otherwise: Peckham v. Fox, 1 Cal. App. 307, 309, 82 Pac. Rep. 91. See Linck v. Johnson, 134 Cal. xix, 66 Pac. Rep. 674. See " Constitutional Aspect's," § 40, ante. Colorado. The provision of Sess. Laws 1893, ch. cxvii, p. 325, § 18 (3 Mills's Ann. Stats., 1st ed., § 2893a), relating to attorneys' fees, being unconstitutional, none can be allowed in an action to foreclose mechanics' liens: Davidson v. Jennings, 27 Colo. 187, 60 Pac. Rep. 354, 83 Am. St. Rep. 49, 48 L. R. A. 340; Sickman v. Wollett, 31 Colo. 58, 71 Pac. Rep. 1107; Campbell v. Los Angeles G. M. Co., 28 Colo. 256, 64 Pac. Rep. 194 (writ of error presenting this sole question not allowed) ; Burleigh B. Co. v. Merchant B. & B. Co., 13 Colo. App. 455, 466, 59 Pac. Rep. 83, 87; Antlers Park R. M. Co. v. Cunningham, i'« Colo. 284, 68 Pac. Rep. 226; Perkins v. Boyd, 16 Colo. App. 266, 65 771 COSTS AND attorneys' FEES. § 941 established in California, although, at most, its soundness may be considered a question upon which a difference of opinion might reasonably exist.^^ An allowance of attorneys' fees, therefore, in an action to foreclose mechanics' liens, is now erroneous in those states in which the provision has been held unconstitutional,^* and as to them the adjudicated law relating to the subject becomes comparatively unim- portant. § 941. Same. Attorneys' fees not allowed, except on foreclosure of liens on property. In a simple action against the one personally liable,^** or in an action to subject the unpaid portion of the contract price to the payment of the claim, without seeking the foreclosure of a lien upon the realty, a claimant is not entitled to recover for the attor- neys' fees, or for the expenses incurred by him for filing Pac. Rep. 350, s. c. (Sup. Ct.), 86 Pac. Rep. 1045. See EagLe G. M. Co. V. Bryarly, 28 Colo. 262, 65 Pac. Rep. 52. Idabo. The provision of Sess. Laws 1899, ch. i, p. 150, § 12, relating to the allowance of attorneys' fees on foreclosure of mechanics' liens, is constitutional, and they should be allowed: Thompson v. Wise Boy M. & M. Co., 9 Idaho 363, 74 Pac. Rep. 958. Attorneys' fees are allowed upon the foreclosure of mechanics' and laborers' liens: Robertson v. Moore, 10 Idaho 115, 77 Pac. Rep. 218. Montana. Provision for attorneys' fees held constitutional: Helena S. H. & S. Co. V. Wells, 16 Mont. 65, 40 Pac. Rep. 78; Wortman v. Kleinschmidt, 12 Mont. 316, 30 Pac. Rep. 280 (1889). New Mexico. Provision as to attorneys' fees in Comp. Laws 1897, § 2229, held constitutional: Genest v. Las Vegas M. B. Assoc, 11 N. M. 251, 67 Pac. Rep. 743. Utah. Provision in Rev. Stats., § 1400, for attorneys' fees, held un- constitutional: Brubaker v. Bennett, 19 Utah 401, 57 Pac. Rep. 170. Washington. Provision for attorneys' fees held constitutional: Littell V. Saulsberry, 40 Wash. 550, 82 Pac. Rep. 909 (2 Ballinger's Ann. Codes and Stats.); Ivall v. Willis, 17 Wash. 645, 50 Pac. Rep. 467 (Laws 1893, p. 428, § 17). See Griffith v. Maxwell, 20 Wash. 403, 55 Pac. Rep. 571; Fitch v. Applegate, 24 Wash. 25, 64 Pac. Rep. 147. " Merced L. Co. v. Bruschi (Cal. Sup., Nov, 29, 1907), 92 Pac. Rep. 844. Attorneys' fees allowed, under Kerr's Cyc. Code Civ. Proc., § 1195, were held to be a lien upon the property: Peckham v. Fox, 1 Cal. App. 307, 309, 82 Pac. Rep. 91. " Stimson M. Co. v. Nolan (Cal. App., June 19, 1907), 91 Pac. Rep. 262; Builders' Supply Depot v. O'Connor (Jan. 10, 1907), 88 Pac. Rep. 982. Washington. Attorneys' fees: See Fitch v. Applegate, 24 Wash. 25, 64 Pac. Rep. 147 (work on sawmill); Ivall v. "^Villis, 17 Wash. 645, 50 Pac. Rep. 467; Griffith v. Maxwell, 20 Wash. 403, 55 Pac. Rep. 571. " Central L. & M. Co. v. Center, 107 Cal. 193, 197, 40 Pac. Rep. 334. § 942 mechanics' liens. 772 a claim of lien. Under the statute, such items are only recoverable in actions to enforce the liens; -° and even though a claimant is successful in such action on appeal to the supreme court, no attorney's fee will be allowed, if, finally, the lien is not sustained. ^^ § 942. Same. Nature of attorneys' fees allowed, and their relation to costs. Where the statute relating to liens of mechanics and others upon real property is upheld, the attorney's fee allowed thereunder upon foreclosure of the lien is not technically nor strictly speaking a part of the costs ; 2^ and if allowed by the court, it seems that it need not be placed in the memorandum of costs ; ^^ but it bears » Bates V. County of Santa Barbara, 90 Cal. 543, 548, 27 Pac. Rep. 438. Plaintiff cannot recover attorneys' fees out of the proceeds of the property, where he fails to establish his lien: Pacific Mut. L. Ins. Co. V. Fisher, 106 Cal. 224, 234, 39 Pac. Rep. 758; Keener v. Eagle Lake L. & L Co., 110 Cal. 627, 632, 43 Pac. Rep. 14. And likewise under the act of March 31, 1891, relating to laborers, declared unconstitu tional (see § 31, ante), where the plaintiff did not establish a lien, no recovery of attorneys' fees was allowed: Ackley v. Black Hawk G. M. Co., 112 Cal. 42, 45, 44 Pac. Rep. 330. Idabo. Costs: See Bradbury v. Idaho & O. L. I. Co., 2 Idaho 221, 10 Pac. Rep. 620. " Mclntyre v. Trautner, 78 Cal. 449, 21 Pac. Rep. 15. See Stimson V. Dunham C. & H. Co., 146 Cal. 281, 285, 79 Pac. Rep. 968. Contractor not entitled to attorneys' fees wben fund is exhausted: Stimson v. Dunham C. & H. Co., 146 Cal. 281, 285. 2» Mclntyre v. Trautner, 78 Cal. 449, 21 Pac. Rep. 15; Schallert- Ganahl L. Co. v. Neal, 94 Cal. 192, 193, 29 Pac. Rep. 622; Rapp v. Spring Valley G. Co., 74 Cal. 532, 533, 16 Pac. Rep. 325. Oregon. " The attorney's fee provided for in the mechanic's-lien act (Hill's Ann. Laws, § 3677) are not fi.xed and determined by the act, nor imposed strictly as a penalty, but rather in the nature of costs, of which the amount is to be determined by the court; and it is therefore . . . not obnoxious to the constitution," as granting privileges to one litigant not granted to another, or denying the equal protection of the laws: Title G. & T. Co. v. Wrenn. 35 Oreg. 62. 56 Pac. Rep. 271, 76 Am. St. Rep. 454, citing Griflith v. Maxwell, 20 Wash. 403, 55 Pac. Rep. 571. Washington. The provision as to attorneys' fees held not to con- flict with the state constitution: Griffith v. Maxwell, 20 Wash. 403. 55 Pac. Rep. 571. See Fitch v. Applegate, 24 Wash. 25, 64 Pac. Rep. 147. " Rapp V. Spring Valley G. Co., 74 Cal. 532, 16 Pac. Rep. 325; but see Smith v. Solomon, 84 Cal. 537, 539, 24 Pac. Rep. 286; Russ L. Co. V. Garrettson, 87 Cal. 589, 596, 25 Pac. Rep. 747; Clark v. Taylor, 91 Cal. 552, 555, 27 Pac. Rep. 860. 773 COSTS AND attorneys' fees. § 943 some resemblance to costs, as it is an incident to the judg- ment.^* § 943, Same. Measure of attorneys' fees. The general rule with reference to attorneys' fees permitted under pro- visions relative to the liens of mechanics and others for labor performed upon or materials furnished for improvements on real property is, that the court may allow a reasonable attor- ney's fee ^^ to each of the lien claimants whose lien is estab- -* Rapp V. Spring Valley G. Co., 74 Cal. 532, 16 Pac. Rep. 325; Mclntyre v. Trautner, supra; Schallert-Ganahl L. Co. v. Neal, supra. Colorado. Under Stats. 1893, p. 315, no attorney's fee can be allowed, under the language of the statute, unless judgment of fore- closure is obtained: Los Angeles G. M. Co. v. Campbell, 13 Colo. App. 455, 56 Pac. Rep. 246. Oregon. Title G. & T. Co. v. Wrenn, 35 Greg. 62, 56 Pac. Rep. 271. ^ Attorneys' fee.s held properly alloived and reasonable in the fol- lowing eases: Amount recovered, $74: attorney's fee. $50: Hagman V. Williams, 88 Cal. 146, 25 Pac. Rep. 1111. Amount recovered, $483.72; attorney's fee, $100: Scammon v. Denio, 72 Cal. 393, 397, 14 Pac. Rep. 98. Amount recovered, $147.21; increased by supreme court to $672.21; attorney's fee, $50: Schallert-Ganahl L. Co. v. Neal, 91 Cal. 362, 3g6, 27 Pac. Rep. 742. Amount recovered, $1,070; attorney's fee allowed. $175: See Covell v. Washburn, 91 Cal. 560, 562, 27 Pac. Rep. 859. Amount recovered, $100; attorney's fee, $50: Clancy v. Plover, 107 Cal. 272, 274, 40 Pac. Rep. 394. Amount recovered, aggregating $750; two attorneys, fees of $25 and $75: Stimson M. Co. v. Riley (Cal., Dec. 20, 1895), 42 Pac. Rep. 1072 (the supreme court saying, "While the sums allowed seem ratlier small, we cannot say that the court abused its discretion in determining that $75 was a reasonable fee "). Amount recovered, $691.20; attorney's fee allowed, $100: Mulcahy v. Buckley, 100 Cal. 484, 490, 35 Pac. Rep. 144. Amount recovered, $67.50; attorney's fee allowed, $25: Anderson v. Johnston, 120 Cal. 657, 658, 53 Pac. Rep. 264. "Reasonable attorneys' fee.s," amounts not mentioned: Jewell v. McKay, 82 Cal. 144, 152, 23 Pac. Rep. 139; Western L. Co. v. Phillips. 94 Cal. 54, 29 Pac. Rep. 328; Bates v. Santa Barbara County, 90 Cal. 543, 548, 27 Pac. Rep. 438; Rapp v. Spring Valley G. Co., 74 Cal. 532, 536, 16 Pac. Rep. 325; Chivell v. Spring Valley G. Co., 16 Pac. Rep. 328; Castagnetto v. Coppertown M. & S. Co., 146 Cal. 329, 334, 80 Pac. Rep. 74 (seventy-five cents for each of twelve separate liens, total $900; nothing in the record to show tliat it was unreasonable). Court should uot flx fee at unreasonably small or insutlieieul amount: Stimson M. Co. v. Riley (Cal., Dec. 20, 1895), 42 Pac. Rep. 1072. Attorneys' fees not exeesslve in consolidated case: See Sweeney v. Meyer, 124 Cal. 512, 57 Pac. Rep. 479. Colorado. Four hundred dollars for foreclosing sixteen mechanics' liens, aggregatint," $1,919; judgment by default; held excessive: Los Angeles G. M. Co. v. Campbell, 13 Colo. App. 1, 56 Pac. Rep. 246. Idaho. Amount recovered, $257.83; attorney's fee, $100 in lower court: Huber v. St. Joseph's Hospital, 11 Idaho 631, 83 Pac. Rep. 768. § 943 mechanics' liens. 774 lished, for services in the superior and supreme courts.^® The amounts are to be fixed by the lower court, irrespective of any averment in the complaint ; -^ but, on the other hand, it has been held, more recently, that a judgment for attor- neys' fees in excess of that claimed in the complaint cannot be sustained.^® The court, however, is not bound by testi- mony touching the value of attorneys' services in suits of this nature.^^ New Mexico. Amount recovered, $232.40; attorney's fee, $100. Amount recovered, $3,790.24; attorneys' fees, $500: Genest v. Las Veg-as M. B. Assoc, 11 N.M. 251, 67 Pac. Rep. 743, 745. Oregon. Amount recovered, $85.75; attorney's fee, $20: Lewis v. Beeman, 46 Oreg. 311, 80 Pac. Rep. 417. Judgment, $220; attorney's fee allowed, $50: Cline v. Shell, 40 Oreg-. 372, 73 Pac. Rep. 12, Amounts recovered, $193.05 and $325; attorneys' fees, $25 and $70, respectively: Fitch v. Hewitt, 32 Oreg. 390, 52 Pac. Rep. 192. Amount recovered, $559.89; attorney's fee, $75: Harrisburg L. Co. v. Washburn, 29 Oreg. 150, 169, 44 Pac. Rep. 390; Forbes v. Willamette Falls E. Co., 19 Oreg. 61, 23 Pac. Rep. 670, 20 Am. St. Rep. 793 ($10 each for fifteen liens). See Title G. & T. Co. v. Wrenn, 35 Oreg. 62, 56 Pac. Rep. 271, 76 Am. St. Rep. 454 ($250). Washington. Amount claimed, $21,000; fee, $2,000; excessive; sjiould be $1,000 or less: See Fairhaven L. Co. v. Jordan, 5 Wash. 729, 736, 32 Pac. Rep. 729; Seattle and Walla W^alla R. Co. v. All Kowe. 2 Wash. Ter. 36, 3 Pac. Rep. 188. Amount recovered, $75.58; attorney's fee, $50; excessive, in absence of evidence: Lee v. Kimball (Wash., March 12, 1907), 88 Pac. Rep. 1121. Amount recovered, $4,328; at- torney's fee, $400: Lavanway v. Cannon, 36 Wash. 593, 79 Pac. Rep. 1117. Attorney's fee reduced from $100 to $50; contest concerning $73: Llttell V. Saulsberry, 40 Wash. 550, 82 Pac. Rep. 909. Attorney's fee based on items contested, and reduced: See Littell V. Saulsberry, 40 Wash. 550, 82 Pac. Rep. 909. -0 Kerr's Cyc. Code Civ. Proc, § 1195. Montana. In district court, but not in supreme court: Murray v. Swanson, 18 Mont. 533, 46 Pac. Rep. 441. See Wortman v. Klein- schmidt, 12 Mont. 316, 30 Pac. Rep. 280 (1889). =' Clancy v. Plover, 107 Cal. 272, 274, 40 Pac. Rep. 394; Pacific Mut. L. Ins. Co. V. Fisher, 106 Cal. 224, 234, 39 Pac. Rep. 758: Mulcahy v. Buckley, 100 Cal. 484, 490, 35 Pac. Rep. 144. See " Complaint," §§ 670 et seq., ante. Colorado. Judgment for attorneys' fees, without evidence of the services performed and their value, under the law of 1893, cannot be sustained: Burleigh B. Co. v. Merchant B. & B. Co., 13 Colo. App. 455, 59 Pac. Rep. 83, 87. 2s Skym V. Weske Cons. Co. (Cal., Dec. 18, 1896), 47 Pac. Rep. 116 (decided Dec. 18, 1896), appears impliedly to overrule, or at least dis- tinguish, the earlier cases of Pacific Mut. L. Ins. Co. v. Fisher, 106 Cal. 224, 234, 39 Pac. Rep. 758 (decided March 8, 1895), and Clancy v. Plover, 107 Cal. 273, 274,. 40 Pac. Rep. 394 (decided May, 1895), without expressly distinguishing or even noticing them. ^ In this connection, the supreme court has said: " W^e think, therefore, that the failure of the plaintiff to produce evidence on the question does not affect the validity of the judgment awarding such I 775 COSTS AND attorneys' pees. §§ 944, 945 § 944, Same. Relation of legal services to action. Attor- neys' fees paid by a party can be recovered from the defeated party only in exceptional cases, of which the action to enforce a mechanic's lien is one ; ^° but the exception pro- vided for in this class of cases does not extend to fees for services not pertaining to such action " in the superior " or " supreme court." Thus — Preparing of claim of lien to be recorded is no more nearly related to the action to foreclose the lien than is the drafting of the contract for the performance of the labor upon which such action may be partly founded.^^ § 945. Same. Agreement as to fees. And the court has held that it is not necessary to the allowance of the attor- ney's fee that the plaintiff should have actually paid or expressly agreed to pay one to his attorney; an implied agreement is sufficient. " If, indeed, it had appeared that the attorney had expressly agreed to give his services for nothing, or if he were an emploj^ee of the plaintiff at a yearly salary, as was the case in Bank of Woodland v. Treadwell ^- [for the foreclosure of a mortgage], then the plaintiff might not be entitled to an allowance for attor- ney's fee. But where there is an implied agreement for the payment of the attorney, or where, as here, there is an express agreement that for services prior to the recording of the liens, the attorney shall. receive five per cent upon the amount collected, and for subsequent services ' only such fees: See opinion of Harrison, .!., in Watson v. Sutro, 103 Cal. 169, 37 Pac. Rep. 201; Rapp v. Spring Valley G. Co., 74 Cal. 532, 16 Pac. Rep. 325. No doubt, such evidence is admissible, and may properly be considered by the court, but its absence in the record on appeal is not a circumstance requiring a reversal, unless it appear from an Inspection of the record, and without evidence to sustain it, that the fee fixed by the court is unreasonable, which is not claimed in this Instance": Clancy v. Plover, 107 Cal. 272, 275, 40 Pac. Rep. 394. See Castag-netto v. Coppertown M. & S. Co., 146 Cal. 329, 334, 80 Pac. Rep. 74. \Vashington. Evidence as to attorneys' fees seems to be necessary: Wheeler & Co. v. Ralph, 4 Wash. 617, 30 Pac. Rep. 709; Cowle v. Ahrenstedt, 1 Wash. 416, 420, 25 Pac. Rep. 458. 50 Mulcahy v. Buckley, 100 Cal. 484, 490, 35 Pac. Rep. 144. Montana. See Murray v. Swanson, 18 Mont. 533, 46 Pac. Rep. 441. »i Mulcahy v. Buckley, 100 Cal. 484, 490, 35 Pac. Rep. 144. « 55 Cal. 379. § 946 mechanics' liens. 776 fee as the court would allow,' it seems clear that plaintiff is entitled to an allowance for attorneys' fees. The court would not be bound by an agreement between plaintiff and his attorney as to amount, but must, under the code, allow such amount as is reasonable." ^^ Stipulation not excluding attorneys' fees. A stipulation that an individual named should ascertain and fix the amount due to each of the plaintiffs, and " upon such ascertainment that judgment shall accordingly be entered," does not pre- vent the claimant from recovering any attorneys' fees which may be properly allowed by the court. ^* § 946. Same. Lower court fixing attorneys' fees in supreme court. It has been held that the superior court has exclusive power to allow the claimant a reasonable attor- ney's fee for services in the supreme court, notwithstand- ing Rule XXIV of that court provides that costs be awarded to appellants in cases where the judgment or order appealed from is reversed or modified ; and the supreme court has not the power to order any amount to be paid as such fee, and such an order is not binding upon the lower court ; ^^ and the supreme court will make no direction to the lower court respecting the allowance of attorneys' fees.^® 33 Rapp V. Spring VaUey G. Co., 74 Cal. 532, 534, 16 Pac. Rep. 325; Chivell V. Spring Valley G. Co. (Cal., Jan. 25, 1888), 16 Pac. Rep. 328. Washington. " A statutory attorney's fee will not be allowed in addition to the fee provided for in a contract; neither do we think it can be allowed in addition to the fee allowed for the foreclosure": Bolster v. Stocks, 13 Wash. 460, 43 Pac. Rep. 532, 534, 1099. 3^ Rapp V. Spring Valley G. Co., 74 Cal. 532, 534, 16 Pac. Rep. 325. 35 Schallert-Ganahl L. Co. v. Neal, 94 Cal. 192, 193, 29 Pac. Rep. 622. L.o»ver court to fix attorneys' fees: Sweeney v. Meyer, 124 Cal. 512, 516, 57 Pac. Rep. 479; San Joaquin L. Co. v. Welton, 115 Cal. 1, 46 Pac. Rep. 735, 1057. Discretion o£ lower court as to attorneys' fees not disturbed on appeal, except for abuse: Sweeney v. Meyer, 124 Cal. 512, 515, 57 Pac. Rep. 479. Application for attorneys' fees in supreme court to be made in lower court: See Williams v. Gaston, 127 Cal. 641, 60 Pac. Rep. 427. Montana. Attorney's fee for services in appellate court to be fixed by district court on return of remittitur: Hill v. Cassidy, 24 Mont. 108, 60 Pac. Rep. 811. 3« San Joaquin L. Co: v. Welton, 115 Cal. 1, 46 Pac. Rep. 735, 1057; Evans v. Judson, 120 Cal. 282, 285, 52 Pac. Rep. 585. In West Coast L. Co. V. Newkirk, 80 Cal. 275, 281, 22 Pac. Rep. 231, the supreme court ordered the lower court, on the going down of the remittitur, 777 COSTS AND attorneys' fees. § 9-17 § 947. Same. When owner not liable for attorneys' fees. Where the only question raised by the answer of a land- owner in an action to enforce mechanics' liens is decided in his favor, it is improper to impose a lieu upon his laud for attorneys' fees, in addition to the balance due on a valid original contract, unless the answer was interposed to delay and harass the lien claimants.^" to aUow plaintiff, respondent, under Code Civ. Proc, § 1195, a reason- able attorney's fee in the supreme court, and this case was mentioned in Schallert-Ganahl L. Co. v. Neal, supra. See Mulcahy v. Buckley, 100 Cal. 484, 490, 35 Pac. Rep. 144. And the lower court had, previous to the rule established, as stated in the text, been ordered to allow, "as additional costs" (Russ L. Co. v. Garrettson, 87 Cal. 589, 596. 25 Pac. Rep. 747; Smith v. Solomon, 84 Cal. 537, 539, 24 Pac. Rep. 286). or "as part of their costs on this appeal" (Harlan v. Stufflebeem, 87 Cal. 508, 513, 25 Pac. Rep. 686; Clark v. Taylor, 91 Cal. 552, 555, 27 Pac. Rep. 860), a reasonable attorney's fee for services of the attorney for respondent. W'^asbington. Another attorney's fee not allowed on appeal: See Lavanway v. Cannon, 37 Wash. 593, 79 Pac. Rep. 1117. " Hooper v. Fletcher, 145 Cal. 375, 378, 79 Pac. Rep. 418. See § 934, ante. §948. Sale. §949. Same. §950. Same. §951. Same. §952. Same. §953. Same. §954. Right §955. Same. 948 mechanics' liens. 778 CHAPTER XLIV. SALE AND REDEMPTION. In general. Manner of executing judgment. " Writ " not an " execution." Time of sale. Application of proceeds to junior executions. Sale of leasehold interest, of redemption. Redemption by subsequent mortgagee not made a party. § 948. Sale. In general.^ The provisions of part two of the Code of Civil Procedure of California, with reference 1 See "Decree," §§930 et seq., ante. Colorado. As on executions: Keystone M. Co. v. Gallagher, 5 Colo. 23 (1872): San Juan Co. v. Finch, 6 Colo. 214. Void order of sale, directing distribution of proceeds pro rata: Bassick M. Co. v. Schoolfleld, 10 Colo. 46, 14 Pac. Rep. 65 (under Gen. Stats., § 2155), reviewed in Staples v. Ryan, 62 Fed. Rep. 635, holding that the sale was not void, on the gound that by such sale the person claiming a lien against only a portion of the property shared in the proceeds of the whole property of which his complaint did not give the court jurisdiction, but that it might be voidable. As to buying property in under foreclosure sale not being " pay- ment," see Orman v. Ryan, 25 Colo. 383, 55 Pac. Rep. 168. Impeaching record; publication of notice of sale: See Ryan v. Staples, 76 Fed. Rep. 721, 23 C. C. A. 541, affirming s. c. 62 Fed. Rep. 635. Execution on personal judgment: Finch v. Turner, 21 Colo. 287, 40 Pac. Rep. 565. Order marshaling asset.s of sale of land and building: See Joral- mon V. McPhee, 31 Colo. 26, 71 Pac. Rep. 419, 423. Montana. Personal judgment against husband only, in action to foreclose lien against husband and wife; enjoining sale: See Alex- ander V. Fransham, 26 INIont. 496, 68 Rep. 945. See Vantilburgh v. Black, 2 Mont. 371. New 3Iexico. Publication of notice of sale: See Neher v. Craw- ford, 10 N. M. 725, 65 Pac. Rep. 156. Oregon. As to sale of lot separate from building, and application of proceeds to the payment of a prior mortgage, and surplus, together with proceeds of sale of building, applied to the satisfaction of mechanics' liens, see Smith v. Wilkins, 38 Oreg. 588, 64 Pac. Rep. 761, s. c. 31 Oreg. 421, 51 Pac. Rep. 438.. General execution: Kendall v. McFarland, 4 Oreg. 293. Utah. Sale and removal of building from lot: See Sanford V. Kunkel, 30 Utah 379, 85 Pac. Rep. 363, 1012. H 779 SALE AND REDEMPTION. § 949 to sale,^ are generally applicable to the foreclosure of liens for labor performed upon or materials furnished for improve- ments on real property.^ § 949. Same. Manner of executing judgment. In refer- ence to this matter, the court has said: " The code provis- ions relating to the foreclosure of mechanics' liens provide no mode of enforcing the judgment, other than by a sale of the property and docketing a deficiency judgment against the defendant who may be liable therefor; and in Phillips on Mechanics' Liens, section four hundred and fifty-eight, it is said : ' The execution to be issued for the enforcement of the lien is generally provided for by express enact- ment. . . . Unless otherwise provided, the execution is always special against the particular property encumbered with the lien.' I conclude, therefore, that an execution as upon a mere personal judgment could not have been issued and levied upon the property of the defendant [owner of a leasehold interest], had the undertaking in question not been given, unless by direction of the court, upon a show- As to sale of different parcels subject to different rigrlits of claim- ants, see Sanford v. Kunkel, 30 Utah 379, 85 Pac. Rep. 363, 1012. Sale upon subsequent decree upon reinstating one of several separate claims, dismissed, sale having been decreed upon the other: Venard v. Green, 4 Utah 67, sub nom. Venard v. Old Hickory M. Co., 6 Pac. Rep. 415, 7 Pac. Rep. 408. ' \Vashingrton. Injunction will not lie to restrain the sale of com- munity real estate against whicli a decree of sale had been entered in a proceeding for the foreclosure of a mechanic's lien to whicli the owner's wife had not been made a party, her rights not being affected by the judgment, and the judgment not being void: Turner V. Bellingham Bay L. & M. Co., 9 Wash. 484, 37 Pac. Rep. 674; since, in the mechanic's-lien case, the limit of time is very short for the commencement of the action, and the issuance of the injunction would have the effect to defeat forever the lien, and a court of equity ought to interfere on behalf of parties only whose riglits can be fully protected in the manner pointed out. and the issuance of the injunction being in the sound discretion of tlie court: Concurring opinion of Stiles, J., in Harrington v. Johnson, 10 Wash. 545. 39 Pac. Rep. 141. As to enjoining sale, althougli judgment is void, see also Quinby v. Slipper, 7 Wash. 475, 35 Pac. Rep. 116, 38 Am. St. Rep. 899. General creditor foreclosing Hen; general execution for balance unsatisfied: See Marks v. Pence, 31 Wash. 426, 71 Pac. Rep. 1096. * See Kerr's Cyc. Code Civ. Proc, §§ 681 et seq., and notes. » Kerr's Cyc. Code Civ. Proc, § 1189. §§ 950, 951 mechanics' liens. 780 ing that the property upon which the lien was adjudged was no longer available, and that the bond given did not operate to stay the enforcement of the lien upon the prop- erty described in the judgment," * § 950. Same. " Writ " not an " execution." The only process allowed in the state of California for the enforcement of a judgment foreclosing a lieu upon specific property is that laid down by section six hundred and eighty-four,^ pro- viding that when a judgment requires the sale of property, the same may be enforced by a writ reciting the judgment, or the material parts thereof, and ' directing execution thereof by the sale. This " writ " is neither styled an " exe- cution," within the meaning of section six hundred and eighty-three," nor is it such in its nature, and the require- ment of the section last cited, that the " execution " be made returnable within sixty days, is inapplicable. Hence where the sheriff sells the property after the return-day of the writ, in the absence of some showing that injury has resulted from delay in making the sale, it will not be set aside nor held invalid.'^ § 951. Same. Time of sale. Where the sheriff sells prop- erty under an execution after the return-day, it is not invalid, if the levy was made during the lifetime of the writ; and the same reasoning upholds a sale after the return-day of a writ issued under an order of sale, or in cases where no levy is required.* The court having the right to subject the property to a sale for the satisfaction of a decree foreclos- ing a mechanic's lien, and having at all times control of its process to prevent it from becoming a source of injury, the time within which such sale is directed to be made is * Central L. & M. Co. v. Center, 107 Cal. 193, 197, 40 Pac. Rep. 334. Colorado. See Finch v. Turner, 21 Colo. 287, 40 Pac. Rep. 565. B Kerr's Cyc. Code Civ. Proc, § 684. 6 Kerr's Cyc. Code Civ. Proc, § 683. ' Southern Cal. L. C9. v. Ocean Beach H. Co., 94 Cal. 217, 29 Pac. Rep. 627, 28 Am. St. Rep. 115. s Southern Cal. L. Co. v. Ocean Beach H. Co., 94 Cal. 217, 29 Pac. Rep. 627, 28 Am. St. Rep. 115. 781 SALE AND REDEMPTION, § 952 but directory, and under the control of the court; and, in the absence of a showing of injury, a sale should not be set aside, merely because it was not made before the return- day of the writ.'' The deed at the sale, by relation, takes effect as of the time when the lien attached.^" § 952. Same. Application of proceeds to junior execu- tions. As a general proposition, if an execution be levied upon a sufficient amount of personal property to satisfy it in full, such a levy is equivalent to satisfaction. This is not true, however, as in favor of a judgment debtor, in a case where he had subsequently withdrawn the property levied upon, either with or without the consent of the plain- tiff in execution; so, too, where the levy had been subse- quently relinquished by his consent, so as to allow other and junior liens to be satisfied. Hence where judgments on me- chanics' liens are situated in time between prior and subse- quent judgments, and a levy under execution on the prior judgments is made on personal property sufficient to satisfy it, and levies under executions on the subsequent judgments are then made, and the plaintiff's attorney in tlie prior judg- ments directs that the fund be applied in part to satisfy judg- ments junior to the mechanics' liens, the senior judgment Avill be considered satisfied as against such mechanics' liens.^^ Purchaser having notice of facts affecting priorities. Where a sale of real estate under execution is made nomi- nally to a third person, with a view of complicating the pro- ceedings, but really to a defendant, a judgment creditor in another action, who makes application of the sum due on his judgment in payment on the sale, the third person will be considered to have notice of all the facts touching the ranking or priorities of junior and senior judgments, and « Southern Cal. L. Co. v. Ocean Beach H. Co., 94 Cal. 217, 29 Pac. Rep. 627, 28 Am. St. Rep. 115. w Purser v. Cady (Cal., June 17, 1897), 49 Pac. Rep. 180. Deed: Finch v. Turner, 21 Colo. 287, 40 Pac. Rep. 565. And is paramount to all encumbrances put upon the property after the com- mencement of the work: Cornell v. Conine-Eaton L. Co., 9 Colo. App. 225, 235, 47 Pac. Rep. 912. " Barber v. Reynolds, 44 Cal. 519, 534. §§ 953-955 mechanics' liens, 782 sales thereunder, of which such judgment creditor had knowledge.^^ § 953. Same. Sale of leasehold interest. It is possible that the owner of the fee, where a building is erected by a lessee with the knowledge but without objection of the owner, under section eleven hundred and ninety-two, ^^ may be entitled to have the leasehold interest first sold to sat- isfy the lien, if he asks for such sale ; ^* but where the lease has expired, or has not been renewed, there is no interest of the lessee to be sold.^^ § 954. Right of redemption. The decree in an action to enforce mechanics' liens cannot absolutely bar and foreclose the owner of all right and equity of redemption of the prem- ises, but from and after the delivery of the sheriff's deed after the sale, as provided in the decree.^* § 955. Same. Redemption by subsequent mortgagee not made a party. A subsequent mortgagee would have a right, in a proper case, to redeem the premises from the sale under a judgment on the lien, by paying the money justly due, interest, costs, etc., even when he had not been a party to the suit by the lien-holder.^'^ " Barber v. Reynolds, 44 Cal. 519, 534. Oregon. Contra, under act of 1874: Inverarity v. Stowell, 10 Oreg. 261: there being- no express provision allowing- the sale of the im- provements. See Willamette Falls Co. v. Riley, 1 Oreg. 183. " Kerr's Cyc. Code Civ. Proo., § 1192. 1* "West Coast L. Co. v. Apfield, 86 Cal. 335, 340, 24 Pac. Rep. 993. Colorado. Sale of improvements, -n-here there is a prior encum- brance: Bitter v. Mouat L. & I. Co., 10 Colo. App. 307, 51 Pac. Rep. 519. See Church v. Smithea, 4 Colo. App. 175, 35 Pac. Rep. 267. ^' Evans v. Judson, 120 Cal. 282, 285. 52 Pac. Rep. 585. " Castag-netto v. Coppertown M. Co., 146 Cal. 329, 334, 80 Pac. Rep. 74. Colorado. Right of redemption of stranger to -writ of error, who holds another judgment: See Ryan v. Staples, 76 Fed. Rep. 721, 23 C. C. A. 541, affirming Staples v. Ryan, 62 Fed. Rep. 635. " Gamble v. Voll, 15 Cal. 508, 510. See Kerr's Cyc. Code Civ. Proo., §§ 701 et seq. Montana. Right of purchaser at sale to remove improvements: Grand Opera House Co! v. McGuire, 14 Mont. 558, 37 Pac. Rep. 607. It is not affected by the fact that the removal would involve great loss: Id. Redemption: See Mason v. Germaine, 1 Mont. 269 (1865). Oregon. Redemption; priority of mortgage: See Gaines v. Childers, 38 Oreg. 200, 63 Pac. Rep. 487. 783 APPEAL. § 956 CHAPTER XLV. APPEAL. § 956. Appeal. In general. Statutory provisions. § 957. Error, how reviewed. Exclusion of evidence. § 958. Same. Writ of review. § 959. Parties to appeal. § 960. Same. Definition of adverse party. § 961. Same. Appeal from judgment denying lien. Death of one personally liable. § 962. Notice of appeal. Contents. Sale of property. § 963. Same. Personal judgment against contractor. § 964. Same. Upon whom served. § 965. Same. Contractor not adverse party. § 966. Same. Contractor ^adverse party. Default. § 967. Same. Subsequent mortgagee. Injuriously affected. § 968. Same. Beneficially affected. § 969. Same. Who need not be served with notice of appeal. § 970. Same. Service waived by stipulation. § 971. Bond for costs. Staying judgment. Lien subordinate to lien foreclosed. § 972. Stay bond. Lien enforced. § 973. Insufficient record. Compliance with specifications. Void contract. § 974. Presumptions on appeal. In general. § 975. Same. Extent of land. § 976. Same. Support of findings. § 977. Same. For what work amount found due. § 978. Same. What not presumed on appeal. § 979. What not involved. Validity of deficiency judgment against contractor. Appeal by owner. § 980. Findings. When objections not considered. § 981. Same. On appeal from order denying motion for new trial. § 982. Same. Who cannot attack findings. General creditors. § 983. Harmless error. § 984. Same. Sufficiency of claim of lien. § 985. Objecting on appeal for first time. Contract not entirely filed. § 986. Same. Description of land. § 987. Same. Uncertainty of interest in property. § 988. Consolidated cases. Hearing on appeal. §§ 956, 957 mechanics' liens. 784 § 989. Order on appeal. New trial. § 990. Same. New trial. When sustained. § 991. Same. Attorneys' fees. § 956. Appeal. In general.^ Statutory provisions. Sec- tion eleven hundred and ninety-nine ^ provides : " The pro- visions of part two of this code relative to new trials and appeals,^ except in so far as they are inconsistent with the provisions of this chapter, apply to the proceedings mentioned in this chapter" (on mechanics' liens).* While the provisions of the statute are found in part three, entitled " Special Proceedings," yet by section eleven hundred and ninety-eight ^ the provisions of part two relating to practice in civil actions are applicable, except where changed by the chapter on mechanics' liens.® § 957. Error, how reviewed. Exclusion of evidence. The rulings of the court upon the exclusion of evidence as to the extent of the owner's liability under a valid contract, which has been abandoned by the contractor, may be pre- * See, generally, "Findings," §§885 et seq., ante. Law of the case; doctrine expounded: See Tally v. Ganahl (Cal. Sup., June 19, 1907), 90 Pac. Rep. 1049. See Tally v. Parsons, 131 Cal. 516, 63 Pac. Rep. 833. As to "law of the case," for full collection of cases and criticism, see Kerr's Cyc. Code Civ. Proc, § 53, note pars. 94-106. Separate jiidgrnients, mortgages, and mechanics' liens; apportion- ment of costs on appeal: See McClain v. Hutton, 131 Cal. 132, 139, 63 Pac. Rep. 182, 622, 61 Id. 273. Colorado. Rule laid down by state courts followed by Federal courts: See Ryan v. Staples, 76 Fed. Rep. 721, 23 C. C. A. 541, affirm- ing Staples V. Ryan, 62 Fed. Rep. 635. Change of theory as to the basis of right to lien not to be made on appeal; lessor corporation and lessee corporation practically the same, making improvement: See Antlers Park Regent M. Co. v. Cunningham, 29 Colo. 284, 68 Pac. Rep. 226. New Mexico. Law Of the case: See Armijo v. Mountain E. Co., 11 N. M. 235, 67 Pac. Rep. 726. Oregon. Decree binding as to those not appealing, although modified after appeal for the benefit of appellant: Smith v. Wilkins, 38 Oreg. 583, 64 Pac. Rep. 760. =* Kerr's Cyc. Code Civ. Proc, § 1199. 2 See Kerr's Cyc. Code Civ. Proc, §§936 et seq., and notes. * New Mexico. See Bucher v. Thompson, 7 N. M. 115, 32 Pac. Rep. 498. = Kerr's Cyc. Code Civ. Proc, § 1198. « See " Time, Place, and Manner of Commencing Actions," §§ 649 et seq., ante; "Practice," §§864 et seq., ante. I 785 APPEAL. §§ 958-960 sented by a bill of exceptions, when the judgment and order denying a new trial are appealed from, notwithstanding that the appeal from the judgment was not taken within sixty days.' § 958. Same. Writ of review. A writ of review may be granted where the court " has exceeded the jurisdiction of such tribuinal, . . . and there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy " ; but erroneous judgments cannot be corrected by this writ, where the court had jurisdiction of the cause, but error must be corrected by appeal.^ Thus — - Foreclosing lien on land and fund. The Avrit of review will not lie, where an action is brought by material-men against the owner and contractor to foreclose a lien for mate- rials furnished, and to reach funds due to the contractor in the hands of the owner of the l)uilding, upon the ser- vice of notice as prescribed in section eleven hundred and eighty-four.^ § 959. Parties to appeal. In order to confer jurisdiction upon the court to entertain an. appeal, all adverse parties — parties to the controversy whose interests would be injuri- ously affected by a reversal of the judgment — must be brought before the court, under section nine hundred and forty.^'' § 960. Same. Definition of adverse party. An adverse party to an appeal means a party wliose interest in relation to the subject of the appeal is in conflict with a reversal of the order or the decree appealed from, or the modification sought by the appeal. ^^ ' McDonald v. Hayes, 132 Cal. 490, 496, 64 Pac. Rep. S50. » W^eldon v. Superior Court, 138 Cal. 427, 429, 71 Pac. Rep. 502. » Weldon v. Superior Court, 138 Cal. 427. 429. 71 Par. Rep. 502. Colorado. Decree of foreclosure and sale of property, final judg'- ment, reviewable upon appeal or by writ of error by owner, even when not bound by personal judgment: Marean v. Stanley, 34 Colo. 91, 81 Pac. Rep. 759. " Mannix v. Tryon (Cal. Sup., Sept. 19, 1907), 91 Pac. Rep. 9S3. " Mannix v. Tryon (Cal. Sup., Sept. 19, 1907), 91 Pac. Rep. 9S3. See Pacific Mut. L. Ins. Co. v. Fisher, 106 Cal. 224, 39 Pac. Rep. 758; Mecli. Liiens — 50 §§961, 962 APPEAL. 786 § 961. Same. Appeal from judgment denying lien. Death of one personally liable. Where the appellant was a material-man, who recovered a personal judgment against the contractor and subcontractor, but failed to establish his lien, and the appeal was from the judgment denying the lien, the fact that the subcontractor dies does not prevent the court from proceeding with the appeal until some one is substituted to represent the subcontractor, as he is not interested in the appeal; nor is his presence, or that of his representative, necessary to a full determination of the appeal.^^ § 962. Notice of appeal.^^ Contents. Sale of property. Where the plaintiff, in his notice, appeals from that por- RandaH v. Hunter, 69 Cal. 80, 82, 10 Pac. Rep. 130; Green v. Berge, 105 Cal. 52, 38 Pac. Rep. 539, 45 Am. St. Rep. 25; Mohr v. Byrne, 132 Cal. 250, 64 Pac. Rep. 257. See also Kerr's Cyc. Code Civ. Proe., § 940, note, p. 1423. Colorado. Owner heard on appeal; default judgment attacked; work done for lessee: See Schwelzer v. Mansfield, 14 Colo. App. 236, 59 Pac. Rep. 843. Appeal taken from judgment foreclosing lien; persons against whom personal judgment rendered not aggrieved: See Davidson v. Jennings, 27 Colo. 187, 60 Pac. Rep. 354, 83 Am. St. Rep. 49, 48 L. R. A. 340. Oklalionia. Unnecessary parties to appeal: See Savage v. Dunkler, 12 Okl. 463, 72 Pac. Rep. 366; Humphrey v. Hunt, 9 Okl. 196, 59 Pac. Rep. 971. " Davies-Henderson L. Co. v. Gottschalk, 81 Cal. 641, 643, 22 Pac Rep. 860. " Colorado. Right to appeal; consolidated action: Orman v. Crystal R. R. Co., 5 Colo. App. 493, 39 Pac. Rep. 434. Oregon. An unperfected appeal does not exhaust the right of appeal: Osborn v. Logus, 28 Oreg. 302, 37 Pac. Rep. 456, 38 Pac. Rep. 190, 42 Pac. Rep. 997. W^aiver of appeal by attaching property: Ehrman v. Astoria & P. R. Co., 26 Oreg. 377, 38 Pac. Rep. 306. AVasliington. Premature and ineffectual notice does not exhaust right: Griffith v. Maxwell, 20 Wash. 403, 55 Pac. Rep. 571. See Ta- coma L. & Mfg. Co. v. Wolff. 5 Wash. 264, 31 Pac. Rep. 753, 33 Pac. Rep. 507. Appeal by wife: See Douthitt v. MacCulsky, 11 Wash. 601, 40 Pac. Rep. 186. A contractor not Joining in an appeal was held not to be entitled to derive any benefit therefrom, except from the necessities of the case, under the statute then in force: Littell v. Miller, 8 Wash. 566, 569, 36 Pac. Rep. 492. Appeal. Account in controversy. Appeal was allowed in action to foreclose mechanics' liens, although 'the amount in controversy did not exceed the sum of $200: Fox v. Nachtsheim, 3 Wash. 684, 29 Pac. Rep. 140. 787 APPEAL. §§ 963-965 tion of the judgment wliich determines the existence of the lien and its priority over plaintiff's lien, but omits to appeal from that part of the judgment ordering the sale of the property, the court, on appeal, will not consider the correct- ness of the portion so omitted.^* § 963. Same. Personal judgment against contractor. Where the notice of appeal was limited in its language to an appeal from a judgment of dismissal as to the owner, and his recovery from the claimant of costs of suit, and the claimant appeals " from the whole of said judgment, and every part thereof," the appeal was not taken from that portion thereof which was rendered personally against the contractors, and will be entertained, although notice thereof was not served on them.^^ § 964. Same. Upon whom served." The notice of appeal must be served on every adverse party interested in the judgment, who would be affected by its reversal, and if not so served, the appeal must be dismissed.^^ § 965. Same. Contractor not adverse party. It has recently been held that it is of no moment to the coutrac- " Pacific Mut. L. Ins. Co. v. Fisher, 106 Cal. 224, 237, 39 Pac. Rep. 758. " Roylance v. San Luis H. Co., 74 Cal. 273, 276, 20 Pac. Rep. 573. " Oregon. Under HiU's Code, § 537, notice of appeal had to be served upon all lien claimants, as they are "adverse parties," and might be affected by a modification or reversal of the decree: Osborn V. Logus, 28 Oreg. 302, 37 Pac. Rep. 456, 38 Pac. Rep. 190, 42 Pac. Rep. 997, citing The Victorian, 24 Oreg. 121, 32 Pac. Rep. 1040, 41 Am. St. Rep. 838; and jurisdiction must be determined from the conditions existing at the time the appeal is taken. A contractor, not served with summons, nor appearing, tliough named in the pleadings as a defendant, V)ut against whom there is no decree, is not an adverse party: Id. See Hand Mfg. Co. v. Marks, 36 Oreg. 523, 52 Pac. Rep. 512. Likewise where no relief is sought against the contractor by the owner, and the former defaults: Cooper Mfg. Co. v. Delahunt, 36 Oreg. 402, 51 Pac. Rep. 649. \Va.>4liington. So as to intervener without leave of court: Gray's Harbor C. Co. v. Wotton, 14 Wash. 87, 43 Pac. Rep. 1095. See Kerr's Cyc. Code Civ. Proc, §§ 940 et seq., and notes. See Davies-Henderson L. Co. v. Gottschalk, 81 Cal. 641, 643, 22 Pac. Rep. 860. " Lancaster v. Maxwell. 103 Cal. 67, 68, 36 Pac. Rep. 951, 37 Id. 207. § 966 mechanics' liens. 788 tor whether, upon appeal by the owner from so much of the judgment as creates the lien of his subclaimant, it be determined that the lien is valid or invalid, or wiiether the judgment be affirmed or reversed, and that, under section eleven hundred and ninety-three,^^ if the judgment estab- lishing the lien stands, and is enforced by a sale of the property, or is discharged by the owner through payment of the judgment, the owner is entitled to reimburse him- self from the moneys in his hands due the contractor, upon whom is the primary obligation to pay his subclaimants. Hence it is held that the original contractor, under these cir- cumstances, is not an adverse party upon whoin notice of appeal must be served ; ^® but the doctrine stated in this form is doubted. § 966. Same. Contractor adverse party. Default. In an action by a subclaimant to foreclose a mechanic's lien, where the original contractor defaults, and judgment is rendered for the sale of the property, and that judgment for the deficiency be docketed against the contractor, if the owner of the building appeals from that part of the judg- ment which decrees that the property be sold, it has been held that the contractor is an adverse party who would be affected by its reversal, and must be served with the notice of appeal.-*^ This holding, however, must be considered against the w^eight of authority and the reason of the rule, " Kerr's Cyc. Code Civ. Proc, § 1193. " Mannix v. Tryon (Gal. Sup., Sept. 19, 1907), 91 Pac. Rep. 983, distin!?ui.shiug Lancaster v. Maxwell, 103 Cal. 67, 36 Pac. Rep. 951, and stating that it did not appear in that case that any personal judgment was rendered against the original contractor, fixing the primary liability on his part to the subcontractor for the entire amount of his claim, or personal judgment rendered for such a deficiency as may appear after the sale of the property; but the case fails to bear out this last statement. Furthermore, default against the original contractor was taken, but no notice of this fact was taken in the case first cited. See §§ 966, 969, post. Oregon. Defaulting contractor not necessary party to appeal, when facts entitling owner to relief against contractor not pleaded: See Cooper Mfg. Co. v. "Delahunt, 36 Oreg. 402, 51 Pac. Rep. 649. ^ Lancaster v. Maxwell, 103 Cal. 67, 68. 36 Pac. Rep. 951. See note § 965, ante; § 969, post. 789 APPEAL. §§ 9G7, 968 as by his default the contractor admits all the allegations of the complaint to be true. § 967. Same. Subsequent mortgagee. Injuriously affected. Where, in a suit to foreclose a mortgage against a defend- ant, mortgager and grantor of the property, to a corporation defendant, and against claimants of mechanics' liens upon the property, the latter liens are determined to be prior to such mortgage, and deficiency judgments are ordered docketed in favor of the plaintiff against the mortgager, and also in favor of the lien claimants against the corpora- tion, an appeal from that portion of the judgment which determines that the lien claimants have any lien upon the premises, and giving their liens priority over the mortgage, cannot be considered, where the plaintiff's notice of appeal was not served either upon the defendant mortgager, or upon the grantee, the corporation defendant ; for a modification of such judgment awarding priority to the plaintiff's mortgage would have the effect of changing the personal liability of the mortgager and grantee, in case of insufficiency of pro- ceeds to satisfy the liens, and would injuriously affect the interests of the grantee. The court, on appeal, under such circumstances, can have no jurisdiction to render the judg- ment, unless the parties to be affected thereby are before it.-^ § 968. Same. Beneficially affected. Under the circum- stances mentioned in the last section, an appeal from that portion of the judgment which determines that the claimants have a lien upon the mortgaged premises will be enter- tained, where the defendant grantee is not served with notice of appeal; for if the mortgagee, as it has a right to do, falsify any of the mechanics' liens for the purpose of reducing the amount to be appropriated out of the proceeds of the sale before making any application therefrom to its own claim, even in the absence of the grantee, if it can be done without injuring such grantee, the modification would not be adverse to its interests; and. under such circum- =' Pacific Mut. L. Ins. Co. v. Fisher, 106 Cal. 224, 229, 231, 39 Pac Rep. 758. §§ 9G9-971 mechanics' liens. 790 stances, to the extent that the obligation of the grantee may be extinguished, the mortgagee is entitled to have the judgment modified.^^ § 969. Same. Who need not be served with notice of appeal. Defendants not served Avith process, and not appear- ing, and against whom no judgment is taken, need not be served with notice of appeal.^^ Thus — Contractor, not served, nor appearing, and no judgment rendered against him. AVhcre the owner appeals from a judgment enforcing a mechanic's lien against his property, the contractor, being a party defendant, and not being served with summons, nor appearing, and no judgment being taken against him, need not be served with notice of appeal.^* § 970. Same. Service waived by stipulation. Where sev- eral actions to enforce mechanics' liens are consolidated, and each plaintiff recovers judgment, and where there appears in the transcript on appeal in one case a stipulation sufficiently broad to make the judgment in the other case follow the judgment in the case appealed, such stipulation is an appearance by the plaintiff in the other case to the appeal, and the respondent in the case appealed cannot move to dismiss the appeal because notice of appeal was not served upon the plaintiff in the other case.^^ § 971. Bond for costs. Staying judgment. Lien sub- ordinate to lien foreclosed. Where an undertaking for costs and damages is filed under section nine hundred and forty- one,^® it stays proceedings on the appeal in all cases, except 22 Pacific Mut. L. Ins. Co. v. Fisher, 106 Cal. 224, 229, 231, 39 Pac. Rep. 758. 23 Nason v. John, 1 Cal. App. 538, 540, 82 Pac. Rep. 566. 2* Nason v. John, 1 Cal. App. 538, 540, 82 Pac. Rep. 566. See Terry V. Superior Court, 110 Cal. 85, 42 Pac. Rep. 464; Hinkel v. Donohue, 88 Cal. 597, 26 Pac. Rep. 374; Merced Bank v. Rosenthal, 99 Cal. 39, 31 Pac. Rep. 849, 33 Id. 732; Clarke v. Mohr, 125 Cal. 540, 58 Pac. Rep. 176. 2^ Valley L. Co. v. Struck, 146 Cal. 266, 269, 80 Pac. Rep. 405. Colorado. Record oA appeal; record in one case the same as others; stipulation to save costs; one fecord sufficient: See Little Valeria G. M. & M. Co. v. Ingersoll, 14 Colo. App. 240, 59 Pac. Rep. 970. »• See Kerr's Cyc. Code Civ. Proc, § 941, and note. 791 APPEAL. §§ 972, 973 those provided for in section nine hundred and forty- two to nine hundred and forty-five,-' the property not being perishable; and where an appeal is taken from a judgment enforcing a mechanic's lien, and ordering the sale of the premises subject to the lien, by a subsequent lien-holder out of possession of the property, such undertaking stays the judgment.-^ § 972. Stay bond. Lien enforced. Under section nine hundred and forty-five,-'-* relating to appeals from judgments for the sale of real estate, a bond to stay the execution upon appeal from such decree enforcing a lien must be given ; and a bond conditioned in twice the amount of the judg- ment against the owner of the land, but not conditioned as required by that section, does not operate to stay the enforce- ment of the lien upon the property described in the judg- ment.^" § 973. Insufficient record. Compliance with specifica- tions. Void contract. Where an appeal from a judgment in favor of the original contractor is taken by an owner, under a void statutory original contract, if no copy of the plans and specifications is contained in the record, which prima facie shows, in connection with the contract alleged and not denied, that the plaintiffs performed the work and " See Kerr's Cyc. Code Civ. Proc, §§ 942-945, and notes. =» Root V, Bryant, 54 Cal. 182, 184, 1 Pac. Coast L. J. 43. See City of Los Angeles v. Pomeroy, 132 Cal. 340, 341, 64 Pac. Rep. 477. Bond void, judgment reversed, with directions to enter judgment for defendant: Hampton v. Cliristensen, 148 Cal. 729, 740, 84 Pac. Rep. 200. See Shaunessy v. American S. Co., 138 Cal. 543, 69 Pac. Rep. 701. See "Constitutional Aspects," §39, ante; "Bond," §§281 et seq., ante; "Sureties," §§605 et seq., ante. Moutnnu. Insufficient bond; dismissal: See Hill v. Cassidy, 24 Mont. 108, 60 Pac. Rep. 811. AVashington. Failure of clerk to mark bond as filed, not affecting right of appeal: See Main I. Co. v. Olsen (Wash., Sept. 28, 1906), 86 Pac. Rep. 1112. -» See Kerr's Cyc. Code Civ. Proc., § 945, and note. 3» Central L. & M. Co. v. Center, 107 Cal. 193, 198, 40 Pac. Rep. 334. See Corcoran v. Desmond, 71 Cal. 100, 102, 11 Pac. Rep. 815. Nevada. See Arrington v. Wittenberg, 11 Nev. 285. Wasliingtou. Sufficient bond on appeal and to stay: See Young v. Borzone, 26 Wash. 4, 66 Pac. Rep. 421. § 974 mechanics" liens. 792 substantiallj^ complied with their contract, the court cannot determine that some of the specifications were not complied with. 31 § 974, Presumptions on appeal. In general. Upon appeal, the usual presumptions are indulged in favor of the judgment foreclosing a mechanic's lien on real property. Thus — Lien on real property. "Where the court finds that the lien claimed is for painting and papering the walls and other portions of the basement story of a building, and " certain structures or articles affixed and appurtenant thereto and placed thereon," and it appears that some work was per- formed upon " counters, sideboard, shelving, ice-box, parti- tions, and wainscoting," but there is nothing to show that they were not among the articles affixed and appurtenant thereto, the court, upon appeal from the judgment, will presume that the evidence supported the decision, and that the lien is not given for work upon personal property.^^ 31 Camp V. Behlow, 2 Cal. App. 699, 701, 84 Pac. Rep. 251. Agreed statement not controlling court on appeal: See San Fran- cisco L,. Co. V. Bibb, 139 Cal. 325, 72 Pac. Rep. 964. Transcript failing to shoTV motion or order; dismissal; See Valley L. Co. V. Struck, 146 Cal. 266, 269, 80 Pac. Rep. 405. Arizona. Appeal; time for filing transcript: See Prescott Nat. Bank v. Head (Ariz., May 25, 1907), 90 Pac. Rep. 328. Colorado. Appeal; lienable and non-lienable charges in same judgment: See Antlers Park Regent M. Co. v. Cunningham, 29 Colo. 284, 68 Pac. Rep. 226. Washington. Record not before court; order denying motion for new trial not considered: See Seattle L. Co. v. Sweeney, 43 Wash. 1, 85 Pac. Rep. 677. Dismissal as to one defendant; ansvrer not in record; question not reviewed: See Knudson-Jacob Co. v. Brandt (Wash., Sept. 25, 1906), 87 Pac. Rep. 43. Personal judgment against wife held not reviewable on appeal, without exception, in action to foreclose architect's lien: See Spald- ing V. Burke, 33 Wash. 679, 74 Pac. Rep. 829. '== Sidlinger v. Kerkow, 82 Cal. 42, 45, 22 Pac. Rep. 932. See Bianchi V. Hughes, 124 Cal. 24, 56 Pac. Rep. 610. Finding that materials of a specified value were furnished by the claimant of a lien upon a dwelling-house to be used in its construc- tion is not inconsistent with a finding that part of them were fur- nished by another party, who refused to deliver the same until paid for, and that the claimant paid such other party therefor; and it must be presumed, in support of both findings, where the appeal is upon the judgment roll Avithout a bill of exceptions, that the evidence showed that the claimant of the lien received and furnished a portion 793 APPEAL. §§ 975, 976 § 975. Same. Extent of land. The court will presume, upon appeal, that the laud described in the decree for the sale of the premises upon foreclosure of mechanics' liens is not greater in extent that that covered by the building, if there is nothing in the record to shoAv that such is the case; as every presumption must be indulged in favor of the judgment; which will not be reversed because there is no allegation, either in the complaint or in the answer, or finding, that such land was necessary for the convenient use and occupation of the building. ^^ Land necessary for occupation. Where a house is described with sufficient certainty in the claim of lien, a case will not be reversed because it does not appear how much land is necessary for its occupation.^'* § 976. Same. Support of findings. Where there is no evidence before the supreme court, the findings of the lower court will be taken as true.^° Reputed owner. It will be presumed, in support of the findings, that the person named in a claim of lien was the of the materials; and likewise It must be presumed that the descrip- tion of the land in the claim of lien is "sufficient for identification": Avery v. Clark, 87 Cal. 619, 629, 25 Pac. Rep. 919, 22 Am. St. Rep. 272. Colorado. Presumption as to amendment of complaint and plead- ing thereto: Bitter v. Mouat L. & I. Co., 10 Colo. App. 307, 51 Pac. Rep. 519. Idaho. Lowe v. Turner, 1 Idaho 107. 3Iontana. See Mason v. Germaine, 1 Mont. 269. Utah. Findings not before appellate court; presumption that they are supported by evidence, except where conflicting-: Culmer v. Caine, 22 Utah 216, 61 Pac. Rep. 1008, citing Blethen v. Blake, 44 Cal. 117. 3' Sachse v. Auburn, 95 Cal. 650, 651, 30 Pac. Rep. 800; Ward v. Crane, 118 Cal. 676, 680, 50 Pac. Rep. 839. 3^ Newell v. Brill, 2 Cal. App. 61, 64, 83 Pac. Rep. 76. See Sidlinger V. Kerkow, 82 Cal. 42, 22 Pac. Rep. 932. ^^ Thus a finding as to whether the contract was performed, or whether the labor and materials were furnished to the owner through his aiithorized agent, or to the contractor, must be taken as true: Green v. Clifford, 94 Cal. 49, 51, 29 Pac. Rep. 331. Prei^uinption as to reasonableness of attorneys' fees, nothing in the record to the contrary: Castagnetto v. Coppertown M. & S. Co., 146 Cal. 329, 334, 80 Pac. Rep. 74. Unreasonableness cannot be shown on judgment roll alone, but by bill of exceptions or otlierwise: Id. Colorado. See Charles v. Hallack L. & Mfg. Co., 22 Colo. 2S3, 43 Pac. Rep. 548. §§ 977, 978 mechanics' liens. 794 reputed owner at the time the contract was made, though another person was found to have been a prior reputed owner. ^^ A defense not pleaded cannot be availed of on appeal, notwithstanding evidence given on appellant's part to prove it.^^ § 977. Same. For what work amount found due. In an action by a contractor to foreclose liens for grading blocks of land, and the streets surrounding the same, under two contracts, where a mortgagee sought priority over the lien of the contractor for grading such streets, on the ground that the contract for the latter work was made subsequent to the recordation of his mortgage, and the court found the amount that was unpaid under the contracts for grad- ing, but did not find that any portion of this unpaid sum was for grading the streets, to support the judgment, rather than to defeat it, the finding will be construed as a finding that the entire amount unpaid was on the block-grading contract, where the appellant failed to make his objection to the finding in the court below.^^ § 978. Same. What not presumed on appeal. However, where the court finds that a contract was entered into for the construction of certain work, and that it was performed, it will not be presumed, upon appeal, without proof, that the contract was void for want of filing, or for any other reason.^® Service of notice on owner. Under the circumstances just set forth, the court will not presume, on appeal, without proof, that some notice other than that expressly found by the court, and prior to it in point of time, was served on the owner.*" «• KeUy V. Lemberg-er (CaL, Sept. 15, 1896), 46 Pac. Rep. 8. 3' Kelley v. Plover, 103 Cal. 35, 37, 36 Pac. Rep. 1030 (defense of guaranteeing performance, and non-performance). 3» W^arren v. Hopkins, 110 Cal. 506, 42 Pac. Rep. 986. 3» First Nat. Bank v. Ferris Irr. Dist., 107 Cal. 55, 64, 40 Pac. Rep. 45, 48. *o First Nat. Bank v. Perris Irr. Dist., 107 Cal. 55, 64, 40 Pac. Rep. 45, 48. 795 APPEAL, §§ 979, 960 Agency of employer. Where the trial court fails to find upon the material issue of the agency of the employer of a miner in a mining claim to act for the owner, the court, on appeal, will not indulge in presumptions as to such agency.*^ § 979. What not involved. Validity of deficiency judg- ment against contractor. Appeal by owner. It has been held that, upon appeal by the owners of the property, in an action to foreclose a mechanic's lien, the validity of a deficiency judgment against the contractor, that may arise after the sale of the structure, and which does not pur- port to be against the appellants, which, as to them, is only against the building, will not be noticed.^^ § 980. Findings. When objections not considered. The court, upon appeal, will adopt the finding of the lower court, wl^ere the evidence taken in the trial court is conflicting." « Reese v. Bald Mt. Consol. G. M. Co., 133 Cal. 285, 289, 65 Pac. Rep. 578 (before the amendment of 1903 to Kerr's Cye. Code Civ. Proc, § 1183). " Linck V. Meikeljohn, 2 Cal. App. 506, 508, 84 Pac. Rep. 309. "What cannot be considered upon appeal from order denying new trial: See Williams v. Hawley, 144 Cal. 97, 99, 77 Pac. Rep. 762 (person entitled to a lien). Colorado. What not considered on appeal as to contract not set out in record: See Merriner v. Jeppson, 19 Colo. App. 218, 74 Pac. Rep. 341. Wasliin^on. Request of plaintiff of dismissal of foreclosure suit, without reservation of right to personal judgment; demand for re- versal to obtain personal judgment cannot be made on appeal: See Service v. McMahon, 42 Wash. 452, 85 Pac. Rep. 33. *^ Skym V. Weske Consol. Co. (Cal., Dec. 18, 1896), 47 Pac. Rep. 116. In Kuowles v. Joosit, 13 Cal. 620, it was held that a finding of a referee is conclusive as to the facts on conflicting evidence. Tlie rule of tlie text applied to a finding of performance: Harlan V. Stufllebeem, 87 Cal. 508, 511, 25 Pac. Rep. CS6; Adams v. Burbank, 103 Cal. 646, 649, 37 Pac. Rep. 640. So a finding that the claim of a subclaimant was not filed within thirty days after the completion of the structure, is conclusive: Harmon v. San Francisco & S. R. R. Co., 105 Cal. 184, 188, 38 Pac. Rep. 032. As to tlie date of completion: Coss v. MacDonough, 111 Cal. 602, 666, 44 Pac. Rep. 325: Ward v. Crane, 118 Cal. 676, 678. As to the character of the work, and as to the remodeling of an old house being the erection of a building: Ward v. Crane, supr.a. As to failure of the contractor to complete the liullding >vitliiu time agreed, due to the negligence of the defendant: Wliite v. Fresno Nat. Bank, 98 Cal. 166, 167, 32 Pac. Rep. 979. That the money due had been paid: Simons v. Webster, 108 Cal. 16, 18, 40 Pac. Rep. 1056; Barry v. Coughlin, 90 Cal. 220, 221, 27 Pac. Rep. 197. § 980 mechanics' liens. 796 But where the findings of the lower court are inconsistent, or are contrary to or not supported by the evidence, they will Finding of agency supported by prima facie evidence: Donohoe v. Trinity Consol. G. M. Co., 113 Cal. 119, 124, 45 Pac. Rep. 259. Finding as to losses: Pacific R. M. Co. v. English, 118 Cal. 123, 130, 50 Pac. Rep. 383. Finding as to alteration of contract; Anderson V. Johnston, 120 Cal. 657, 660, 53 Pac. Rep. 264. Finding that ^-ork of trifling character Tras done after date of completion: Coss v. MacDonough, 111 Cal. 662, 44 Pac. Rep. 325. See Bianchi v. Hughes, 124 Cal. 24, 56 Pac. Rep. 610. Finding of value and amount of money in hands of owner: Adams V. Burbank, 103 Cal. 646, 649, 37 Pac. Rep. 640. Finding as to extra work, although there was a finding for a balance for a small item of fifty cents, it being de minimis: Clark v. Collier, 100 Cal. 256, 259, 34 Pac. Rep. 677. Finding as to value of extra work: Gray v. Wells, 118 Cal. 11, 17, 50 Pac. Rep. 23. So as to fixtures: Bianchi v. Hughes, 124 Cal. 24, 56 Pac. Rep. 610. Finding based on conflicting evidence will not be reviewed: Stevenson v. W^oodward, 3 Cal. App. 754, 86 Pac. Rep. 990. Conflicting evidence as to alarm-bell; judgment not disturbed on appeal: Georges v. Kessler, 131 Cal. 183, 186, 63 Pac. Rep. 466. Finding as to contract not disturbed on appeal: See Sims v. Petaluma G. L. Co., 131 Cal. 656, 62 Pac. Rep. 300; reversed 131 Cal. 656, 63 Pac. Rep. 1011. Reviewing upon appeal conflicting evidence; change in composi- tion agreement after signing: Schroeder v. Pissis, 128 Cal. 209, 60 Pac. Rep. 758. Findings not disturbed as to terms of composition agreement and time of payment, evidence conflicting: Schroeder v. Pissis, 128 Cal. 209, 212, 60 Pac. Rep. 758. Colorado. Charles v. Hallack L. & Mfg. Co., 22 Colo. 283, 43 Pac. Rep. 548. Referee's findings not disturbed, no evidence being before the court on appeal: See Perkins v. Boyd, 16 Colo. App. 266, 65 Pac. Rep. 350, s. c. 86 Pac. Rep. 1045 (Sup.). Idaho. Conflict in oral evidence; findings not disturbed at law or in equity: Robei'tson v. Moore, 10 Idaho 115, 77 Pac. Rep. 218, 222. Finding.s in equity case not disturbed, unless clearly erroneous, or against the weight of evidence: Idaho M. & M. Co. v. Davis, 123 Fed. Rep. 396, 59 C. C. A. 200. Finding on immaterial fact, by stipulation, not to be attacked on the ground of the insufficiency of evidence to support same: Kent v. Richardson, 8 Idaho 750, 71 Pac. Rep. 117. Substantial conflict in evidence; findings not disturbed: See Spaulding v. Coeur d'Alene R. & N. Co., 5 Idaho 528, 51 Pac. Rep. 408. Montana. Findings based on conflicting evidence not disturbed: See A. M. Holter H. Co. v. Ontario M. Co., 24 Mont. 184, 61 Pac. Rep. 3, 8. Kew 3Iexico. Ford v. Springer L. Assoc, 8 N. M. 37, 41 Pac. Rep. 541; Newcomb v. White, 5 N. M. 435, 23 Pac. Rep. 671 (exceptions only to particular items, or classes of items, in master's report will be considered on appeal). Oklahoma. Darlington L. Co. v. Lobitz,' 4 Okl. 355, 46 Pac. Rep. 481. Findings not disturbed, where evidence reasonably supports same: Fe.guson v. Stephenson-Brown L. Co., 14 Okl. 148, 77 Pac. Rep. 184, 186. 797 APPEAL. § 980 be set aside upon appeal.** If the court finds the fact contrary to the admissions of the pleadings, the finding must be disregarded.*"^ Oregon. Justice v. Elwert, 28 Oreg. 460, 43 Pac. Rep. 649. Utah. Dwyer v. Salt Lake City M. Co., 14 Utah 339, 47 Pac. Rep. 311. Washington. McHugh v. Slack, 11 Wash. 370, 377, 39 Pac. Rep 674. Verdict not set a.side as being against evidence: See Brown's Exrs. V. Farnandis, 27 Wash. 232, 67 Pac. Rep. 574. *» Thus where it appears from tlie testimony that the building was In fact completed more than ten days before the date of the certifi- cate of the architect, a finding that the building was completed upon the date of the certificate of the architect will be set aside as not supported by the evidence: Washburn v. Kahler, 97 Cal. 58, 61, 31 Pac. Rep. 741 (finding as to performance); Perry v. Quackenbushi 105 Cal. 299, 305, 38 Pac. Rep. 740; Joost v. Sullivan, 111 Cal. 286* 292, 43 Pac. Rep. 896. Upon foreclosure of material-man's lien, ivhere the only evidence that the goods were sold for the purpose of being used in the structure is that of the salesman, that he did not know where the goods were to be used, but that they were the kind that were used for a telegraph and telephone line, a finding that the materials sold were " to be used in the construction of said telephone line " is not supi orted by the evidence: Roebling Sons Co. v. Bear Valley Irr. Co., 99 Cal. 488, 489, 34 Pac. Rep. 80. Where tlie court fiud.s, In term.s, that person wan an original con- tractor, and the findings disclose that this was but a conclusion drawn from an erroneous construction of the contract, the conclu- sion must be held unsupported by the evidence: John A. Roebling's Sons Co. V. Humboldt E. L. & P. Co., 112 Cal. 288, 292, 44 Pac. Rep. 568. Finding that claim of lien filed by material-man was « in due form as required by law " is not sustained by the evidence, where the claim stated that the materials were to be paid for on the basis of what they were reasonably wortli, and the evidence shows an express agreement as to price for some of them, although there is testimony as to the reasonable value; nor does such evidence sustain a finding of an agreement to pay for them all at what they were rea- sonably worth; and an allegation, in the complaint of foreclosure, that the claimant sold and delivered to the owner of the building "certain hardware and building material to be used in the erection and con- struction of said building, and affixed and attached thereto," is. in the absence of a special demurrer, a sufficient allegation that the materials were to be used in tlie building, to support a finding to that effect: Reed v. Norton, 90 Cal. 590, 593, 598, 26 Pac. Rep. 767, 27 Id. 426 (valid contract). Utali. Disturbance of findings on appeal in equity case, when Inconsistent: See Sandberg v. Victor G. & S. M. Co., 24 Utah 1, 66 Pac. Rep. 360, 365. Washington. Washington R. P. Co. v. Johnson, 10 Wash. 445, 39 Pac. Rep. 115. And in an equity case, unless there has been a request for findings, or an objection raised on that account, in the coiirt below, before the entry of the decree, the objection will not be con- sidered on appeal: Id. <' Bradbury v. Cronise, 46 Cal. 287. 289 (that labor was performed on a mining claim). See Petersen v. Shain, 33 Pac. Rep. 1086 (find- §§ 981-983 mechanics' liens. 798 § 981. Same. On appeal from order denying motion for new trial. Where there is no appeal from the judgment, the court cannot consider any question as to the sufficiency of the findings to support the judgment on an appeal from an order denying a motion for a new trial.*® § 982. Same. Who cannot attack findings. General creditors. General creditors, who have not established their liens, upon appeal from a money judgment rendered in their favor against the contractor, cannot attack the findings as to the liens of other claimants ; and error in the judgment, in favor of such general creditors, cannot be complained of by them.*' § 983. Harmless error. Where the error is harmless, the judgment will not be reversed therefor.*^ Thus — Ing not contrary to admission of facts as to payment to subcon- tractor — copartners). Admission of O'n'nersbip, in the separate ansvrer of certain de- fendants, in an action to foreclose a mechanic's lien, must be taken as true upon appeal, notwitlistanding a finding- that other defendants were owners, upon issue joined as to their ownership: Goss v. Helbing, 77 Cal. 190, 19 Pac. Rep. 277. Finding that building constructed upon leased ground by tenants was constructed with the knowledge and consent of the landlord will not be set aside upon appeal because the evidence does not show his consent, where the finding that it was done with his knowledge is in accordance with the admissions of the pleadings: West Coast L. Co. V. Apfield, 86 Cal. 335, 342, 24 Pac. Rep. 993. W^here the ansT«-er did not deny that no memorandum of contract veas filed, and the court so finds, the supreme court will not consider whether the attempted filing of the original contract is sufficient as a memorandum: San Francisco L. Co. v. O'Neil, 120 Cal. 455, 457, 52 Pac. Rep. 728. « Howe V. Schmidt (Cal. Sup., June 22, 1907), 90 Pac. Rep. 1056. " Kennedy-Shaw L. Co. v. Priet, 113 Cal. 291, 293, 45 Pac. Rep. 336. See "General Creditors," §§601 et seq., ante. ** Refusal of court to allow evidence as to circumstances sur- rounding making of contract, where such evidence is subsequently given, and where such evidence is immaterial: Bryson v. McCone, 121 Cal. 153, 53 Pac. Rep. 637. AVbere the statutory original contract reserved slightly less than twenty-five per cent of the contract price thirty-five days after the completion, no one being injured: Stimson M. Co. v. Riley (Cal., Dec. 20, 1895), 42 Pac. Rep. 1072. Overruling of demurrer on ground of uncertainty as to character and extent of extra work, where nothing is allowed or awarded in the decree on account of the extra work: Wood v. Oakland & B. R. T. Co., 107 Cal. 500, 503, 40 Pac Rep. 806. 799 APPEAL. § 983 Objecting to form of judgment against contractor not appealing. Where a jiulgmeiit is given, enforcing a lien, and the contractor does not appeal, other defendants cannot urge the insufficiency in the form of the judgment against him, where the ai)pellants are not injured thereby.**-* Owner objecting to non- joinder of contractor. Where the owner of property appeals, he cannot complain for the first time that the contractor is not joined as a co-defendant. If he desires the contractor joined, he should make applica- tion to the trial court for an order therefor; and, in the absence of such application, he will not be heard upon appeal.^" Colorado. St. Kevin M. Co. v. Isaacs, 18 Colo. 400, 32 Pac. Rep. 822: Charles v. Hallack L. & M. Co., 22 Colo. 283, 43 Pac. Rep. 548. Idaho. Non-prejudicial error; failure to find specifications were part of contract not sued upon: See Spaulding v. Coeur d'Alene R. & N. Co., 5 Idaho 528, 51 Pac. Rep. 408. Montana. Extent and validity of lien not considered on appeal, no lien liaving been proved: McGlauflin v. Wormser, 28 Mont. 177, 72 Pac. Rep. 428. Bo'h parties attacking e.stiniate of superintendent, one cannot complain of evidence admitted as to its inaccuracy: Cook v. Gallatin R. Co., 28 Mont. 340, 72 Pac. Rep. 678. Oregon. Error appearing, not presumed to be harmless: Aldrich V. Columbia S. R. Co., 39 Oreg. 263, 64 Pac. Rep. 455, 460. Utah. Non-prejudicial error; value of services: See Sandberg v. Victor G. & S. M. Co., 24 Utah 1, 66 Pac. Rep. 360, 365. AVu.shington. Van Hook v. Burns, 1 Wash. 22, 38 Pac. Rep. 763. AVliere there is no exception to tlie finding of the sufficiency of the claim, the objection to the evidence will not be considered on appeal: Washington B. L. & Mfg. Co. v. Adler, 12 Wash. 24, 40 Pac. Rep. 383; McPherson v. Smith, 14 Wash. 226, 44 Pac. Rep. 255. As to report of referee: See Fairhaven L. Co. v. Jordan, 5 Wash. 729, 32 Pac. Rep. 729. Harmless error as to -work not done on property: See Powell v. Nolan, 27 Wash. 318, GT Pac. Rep. 712. Delivery-slips admitted as books of original entry, exclusion of day-books not prejudicial: See Knudson-Jacob Co. v. Brandt (Wash., Sept. 25, 1906), 87 Pac. Rep. 43. Lien not enforcenl>le; immaterial exclusion of evidence: See I^nud- son-Jacob Co. v. Brandt (Wash., Sept. 25. 1906), 87 Pac. Rep. 43. « Western L. Co. v. Phillips, 94 Cal. 54, 56, 29 Pac. Rep. 328. •■» Yancy v. Morton, 94 Cal. 558, 560, 29 Pac. Rep. 1111. As to possilile error in ailniitting expert testimony: Pacific R. M. Co. V. English, lis Cal. 123, 130, 50 Pac. Rep. 3S3. Refusal of court, at trial, to permit amendment to answer setting up the existence of an entire system, of which the completed divis- ions of a canal formed a part, as presenting a new issue, upon which no evidence had been offered, is harmless, where the court subsequently allowed evidence upon that issue, which was con- sidered in that court and upon appeal: Pacific R. M. Co. v. Bear Valley Irr. Co., 120 Cal. 94, 101, 52 Pac. Rep. 136, 65 Am. St. Rep. 158. §§ 984, 985 mechanics' liens. 800 § 984. Same. Sufficiency of claim of lien. Where the record contains the claims of lien, with the names attached, and shows that it was duly sworn to, and the certificate of the recorder's recordation is indorsed thereon, the court, on appeal, is bound by the recitals as to the filing, record, and verification of a claim of lien.^^ § 985. Objecting on appeal for first time.^- Contract not entirely filed. Where no demurrer is offered to a complaint to foreclose a lien, on the ground that the contract set out therein is incomplete because the plans and specifications therein referred to are not attached and made a part thereof, and therefore the entire contract was not filed in the record- er's office, and the answer admits the contract as alleged in the complaint, and the contract is introduced in evi- dence without objection, it is too late to raise the question for the first time on appeal.^^ « Silvester v. Coe Q. M. Co., 80 Cal. 510, 512, 22 Pac. Rep. 21'7. '^ Colorado. Not to be raised for first time on appeal. Improper joinder of causes of action by amendment as to materials furnished by a third person: See Sickman v. Wollett, 31 Colo. 58, 71 Pac. Rep. 1107. Defects in complaint, when it otherwise states a cause of action: Miller v. Thorpe, 4 Colo. App. 559, 36 Pac. Rep. 891. Constitutionality of provision of statute as to sale any supreme court of abuse of discretion in allo^ving at- torneys' fees: See Hampton v. Christensen, 148 Cal. 729, 84 Pac. Rep. 200, 204, s. c. 148 Cal. 729. New Mexico. Amount of attorneys' fees allowed not disturbed, except for plain abuse of discretion: Armijo v. Mountain E. Co., 11 N. M. 235, 67 Pac. Rep. 726. AVasIiinf^ton. Additional allowance for attorneys' fees on appeal not made: Sweatt v. Hunt, 42 Wash. 96, 84 Pac. Rep. 1 (attorney's fee in lower court, $150; judgment, $1,172); Lavanway v. Cannon, 38 Wash. 593, 79 Pac. Rep. 1117. See §§ 940 et seq.. ante. Allowance of attorneys' fees not disturbed upon appeal: Windham V. Independent T. Co., 35 Wash. 166, 76 Pac. Rep. 936. I PART in. FOEMS. CHAPTER XLVI. CONTRACTS, NOTICES, CLAIMS, COMPLAINTS, ETC. Form No. 1. Form No. 2. Form No. 3. Form No. 4. Form No. 5. Form No. 6. Form No. 7. Form No. 8. Form No. 9. Form No. 10. Form No. 11. Form No. 12. Form No. 13. Form No. 14. Form No. 15. Form No. 16. Form No. 17. Form No. 18. Clause for written changes in Clause for arbitration. Clause for damages for delay Statutory original contract. Skeleton form. Building contract. Clause for working-drawings. Building contract. Clause for delays. Building contract. Clause for certificates of archi- tect as to payments. Building contract. Clause for delay in payments by owner. Building contract. Clause for construction of draw- ings and specifications. Building contract. Clause for alterations in con- tract. Building contract, contract. Building contract. Building contract, by contractor. Building contract. Clause for liability in case of destruction of building before completion. Owner and contractor sharing loss. Building contract. Clause for liability in case of destruction of building before completion. Owner assuming loss. Building contract. Clause for inspection and ap- proval of work. Building contract. Clause for completion of build- ing by owner, upon default of contractor. Builder's non-statutory original contract. Short form. (Agreement to build a house according to a plan annexed, material to be furnished by owner.) Bond for performance of original contract. Notice of non-responsibility by owner. Structure. Notice of non-responsibility by owner. Mining claim. (S05) 806 MECHANICS LIENS. Form No. 19. Form No. 20. Form No. 21. Form No. 22. Form No. 23. Form No. 24. Form No. 25. Form No. 26. Form No. 27. Form No. 28. Form No. 29. Form No. 30. Form No. 31. Form No. 32. Form No. 33. Form No. 34. Form No. 35. Form No. 36. Form No. 37. Form No. 38. Form No. 39. Form No. 40. Statement of contractor. Made to architect or owner as to liens, to obtain payment. Notice to owner of furnistiing materials or per- forming labor. Notice, by owner, of completion of building, or of cessation from labor. Verification to foregoing notice. Claim of lien. Original contractor. Structure. Verification to tbe foregoing. Claim of lien. (Owner's material-man or laborer.) Structure. Miner's claim of lien. General form. Claim of lien. Subclaimant; subcontractor in the first degree; contractor's material-man or laborer. Structure. Claim of lien against two contiguous buildings owned by the same person. General form. Claim of lien for grading lot in incorporated city. Owner's notice to contractor to defend lien suits. Release of lien. Complaint for foreclosure of lien. Original contrac- tor, under non-statutory original contract. Complaint for foreclosure of original contractor's lien, under statutory original contract. Complaint of lien-holder for grading or improving lot in incorporated city. Complaint for foreclosure of subclaimant's lien. Order of reference. Notice by contractor that he intends to dispute ac- count. Findings and decision. Foreclosure of lien of own- er's material-men, partners, on two houses, prop- erty sold during construction. Decree. Foreclosing lien of material-men, copart- ners, on two buildings, property sold during con- struction. Satisfaction of judgment. Hints as to the use of the following forms.^ The forms set forth in this work are intended merely as suggestions to the practitioner. In all eases, the statute, and the decisions 1 BlisceUaneons formi^. Form, action by owner against contractor and lien claimants: See record, Stimson .v. Dunliam C. & H. Co., 146 Cal. 281, 79 Pac. Rep. 968. Colorado. Appeal bond (under Mills's Ann. Stats., §406): See Marean v. Stanley, 34 Colo. 91, 81 Pac. Rep. 759. Form, appeal from decree of foreclosure: See Id. FORMS. 807 thereunder, should be consulted and followed. The minute differences in the legislative enactments render it practi- cally impossible to frame a set of flexible forms which will satisfactorily' meet all requirements. With this note of warning, the writer hopes that none will be misled. The California form may be used, in many instances, almost without change, in some jurisdictions.. It sometimes happens, however, that the decisions of the particular state require more than the statute expressly prescribes; and, in a few cases, forms have been provided by legislative enact- ment. Form No. 1. Statutory Original Contract. Skeleton form.^ [Kerr's Cyc. Code Civ. Proc, §§ 1183, 1184.] Articles of Agreement,^ Made this second day of January, nineteen hundred and eight, between G H, of the city and county of San Francisco, state of California, the party of the Idaho. Form, answer, and counterclaim set out in action on bond: See American B. Co. v. Regents of University, 11 Idaho 163, 81 Pac. Rep. 604, 608. Form, action on surety bond substantially set out in American B. Co. V. Regents of University, 11 Idaho 163, 81 Pac. Rep. 604. AVasliingrton. Form, complaint on bond given by original con- tractor to owner: See Drumheller v. American S. Co., 30 Wash. 530, 71 Pac. Rep. 25. = Form, contract substantially complying with the law, the ques- tion as to the validity of the contract being in issue: See Hooper v. Fletcher, 145 Cal. 375, 377, 79 Pac. Rep. 418 (see record). Text. See "Statutory Original Contract," §§269 et seq., ante (over $1,000). Colorado. Statutory original contract over $500: 3 Mills's Ann.' Stats., 2d ed., §2867 (Laws 1899, pp. 261, 262, §1). ' Form, various provisions of contract considered: See Gray v. La Society FranQalse de B. M., 131 Cal. 566, 63 Pac. Rep. 848. Form, clause in contract as to shrinkage: See Scanlan v. San Francisco & S. J. R. Co., 128 Cal. 586, 61 Pac. Rep. 271. Text. See. generally, " Building Contracts," §§ 193 et seq.. ante. Colorado. Form, substance of contract to construct a ditch: See Flick V. Hahn's Peak & E. R. C. & P. Min. Co., 16 Colo. App. 485. 66 Pac. Rep. 453. Idaho. Form of contract set out in American B. Co. v. Regents of University, 11 Idaho 163, 81 Pac. Rep. 604. Montana. Form, substance of contract to construct railway tunnel, set out in Wortman v. Montana C. R. Co., 22 Mont. 206, 56 Pac. Rep. 316. Washinjjton. Summary of form of contract with county for the erection of a schoolhouse: See Long v. Pierce County, 22 Wash. 330, 61 Pac. Rep. 142. 808 mechanics' liens. first part, and A B, of the same place, the party of the second part, — Witnesseth : The party of the first part will be hereinafter designated as the owner, and the party of the second part as the contractor, singular number only being used; and the word " architect," used herein in the singular, shall include the plural, and the masculine the feminine. First. The contractor agrees, within the space of ninety working-daj's from and after date hereof, to furnish the necessary labor and materials, including tools, implements, and appliances, required, and perform and complete in a workmanlike manner all the mason, carpenter, plaster, plumbing, tinning, painting, sewer, roof, and tiling work for a two-story wooden frame building, and other works in con- nection therewith,* shown and described in, and by and in conformity with, the plans, drawings, and specifications for the same made by R S, the aiithorized architect employed by the owner,^ and which are signed by the parties hereto, [at the end of said specifications, and on each sheet of said plans and drawings, which consist of five sheets,] which said pJans, drawings, and specifications are hereto attached, and made a part hereof.® Second. Said building is to be erected upon a lot of land situated in said city and county of San Francisco, state of California, and described as follows [insert description].'' Third. The owner agrees, in consideration of the per- formance of this agreement by the contractor, to pay, or cause to be paid, to the contractor, his legal representatives or assigns, the sum of twelve thousand dollars, in United States gold coin, at the times and in the manner following, to wit : ® Payments to be made in instalments as the work progresses, on the first day of each month, commencing on * Text. See "Labor for Which a Lien is Given," §§ 130 et seq., ante. ^ Text. See "Architects," §§ 119 et seq., ante. • Form, specifications for various parts of the building, referring to adjoining house as samples of the work, approved by court: See California I. C. Co. v. Bradbury, 138 Cal. 328, 331, 71 Pac. Rep. 346, 617. Text. See " Plans and Specifications," §§ 208, 294 et seq., ante. ' Text. Compare " Description of Property," §§ 399 et seq., ante. " Colorado. At least fifteen per cent twenty-five days after: 3 Mills's Ann. Stats., 2d ed., § 2868 (Laws 1899, pp. 263-265, § 2). FORMS. 809 the first day of February, 1907, in sums equal to seventy- five per cent of the value of the work done and materials furnished under this contract, up to the date of said pay- ment, to be estimated according to the whole contract price,- and the balance of said contract price, viz., twenty-five per cent of said contract price, namely, the sum of three thousand dollars ($3,000), to be paid thirty-five days after final completion of the work described in this contract. The proportion in value of said work and materials furnished to the whole contract price to be estimated by the architect and contractor as aforesaid. [Or, if the payments are to be made on the completion of specified portions of the work, insert : " Payments shall be made on the completion of specified portions of the work, as follows: First payment, two thousand dollars ($2,000) when the brickwork is up to the high grade, and the timbers laid ; second payment, two thousand dollars ($2,000) when the brick walls are up to the second story, and the timbers laid ; third payment, two thousand five hundred dollars ($2,500) when the brick walls are up to the third story, read.y for the roof ; ^ fourth payment, two thousand five hundred dollars ($2,500) when the roof is covered, floors laid, and all the plastering complete ; fifth payment, three thousand dollars ($3,000) — twenty-five per cent of contract price ^° — pay- able thirty-five days after the final completion of the contract." "] [Here insert clauses Forms Nos. 2 to 14, post, as may be desired.] In witness whereof, The said parties to these presents have hereunto set their hands and seals, the day and year first above written. [Seal] Witness: [Seal] • Text. Payments: See §§ 273 et seq., ante. irtnli. Payments not in advance of commencement of work: See Rev. Stats., §1373. Contract price payable in money; exception: See Rev. Stats., § 1375. AVyonilng. See Rev. Stat-s., § 2893. '" Form, contract, payment on completion should be large enough to protect the owner: See Hampton v. Christensen, 148 Cal. 729, 739, 84 Pac. Rep. 200. " Text. Final payment: See §§ 274 et seq., ante. 810 mechanics' liens. Form No. 2. Building Contract. Clause for working- drawings. Said architect shall provide and furnish to the contractor all details and working-drawings necessary to properly de- lineate said plans and specifications; and the work is to be done and the materials furnished in accordance therewith, under the direction and supervision and subject to the ap- 'proval of said architect/^ or a superintendent selected and agreed upon by the parties hereto, within a fair and equi- table construction of the true intent and meaning of said plans and specifications.^^ Form No. 3. Building Contract. Clause for delays.^* The time during which the contractor is delayed in said work by the acts or neglects of the owner or his employees, or those under him by contract or otherwise, or by the acts of God which the contractor could not have reasonably fore- seen and provided for, or by stormy and inclement weather which delays the work, orby any strikes, boycotts, or like obstructive action by employee or labor organizations, or by any general lockouts or other defensive action by employers, whether general or by organizations of employers, shall be added to the aforesaid time for completion. Form No. 4. Building Contract. Clause for certificates of architect as to payments. ^^ Provided, That when each payment or instalment shall become due, and at the final completion of the work, certifi- " Text. As to architect, see §§ 119 et seq., ante. '^ Washin^on. Form, clause in contract as to performance of work to the satisfaction of owner: See Childs L. & Mfg. Co. v. Page, 28 Wash. 128, 68 Pac. Rep. 373. Form, clause in contract, contractor to provide facilities for in- spection by owner, to remove condemned material, and to take down condemned work: See Childs L. & Mfg-. Co. v. Page, 28 Wash. 128, 68 Pac. Rep. 373. " Text. See "Construction of Building Contracts." §§216 et seq., ante. Washington. Form; provision in contract as to delay by reason of act of default of owner: See Drumhellel- v. American S. Co., 30 Wash. 530, 71 Pac. Rep. 25. " Text. See "Certificate." §§239 et seq., ante; "Payments," §§251 et seq., ante; "Architects," §§ 119 et seq., ante. FORMS. 811 cates in writing shall be obtained from the said architect stating that the payment or instalment is due or work com- pleted, as the case may be, and the amount then due ; and the said architect shall at said times deliver said certificates, under his hand, to the contractor, or, in lieu of such certifi- cates, shall deliver to the contractor, in writing, under his hand, a just and true reason for not issuing the certificates, including a statement of the defects, if any, to be remedied, to entitle the contractor to the certificate or certificates. And in the event of the failure of the architect to furnish and deliver said certificates, or any of them, or, in lieu thereof, the writing aforesaid, within three days after the times aforesaid, and after demand therefor made in writing by the contractor, the amount which may be claimed to be due by the contractor, and stated in the said demand made by him for the certificate, shall, at the expiration of said three days, become due and payable, and the owner shall be liable, and bound to ipay the same on demand. In case the architect delivers the writing aforesaid in lieu of the certificate, then a compliance by the contractor with the requirements of said writing shall entitle the contractor to the certificate. Form No. 5. Building Contract. Clause for delay in pay- ments by owner.'** For any delay on the part of the owner in making any of the payments or instalments provided for in this contract after they shall become due and payable, he shall be liable to the contractor for any and all damages which the latter may suffer; and such delay shall, in addition, operate as an additional extension of the time for completion aforesaid for the length of time of such delay. And such delay, if for more than five days after the date when said payments or instalments shall have respectively become due and payable, Oregon. Form, contract, peculiar provisions in contract as to architect's certificate: See Vanderlioof v. Shell, 42 Oreg. 578, 72 Pac. Rep. 126, 129. 16 Text. See "Original Contractor," §61, ante; "Owner," §§512 et seq., ante; "Performance," §§334 et seq., ante. 812 mechanics' liens. as in this agreement provided, shall, at the option of the contractor, be held to be prevention by the owner of per- formance of this contract by the contractor.^^ Form No. 6. Building Contract. Clause for construction of drawings and specifications. The specifications and drawings are intended to co-oper- ate, so that any work exhibited in the drawings and not mentioned in the specifications, or vice versa, are to be executed, the same as if both mentioned in the specifications and set forth in the drawings, to the true intent and mean- ing of the said drawings and specifications when taken together. But no part of said specifications that is in con- flict with any portion of this agreement, or that is not actually descriptive of the work to be done thereunder, or of the manner in which the said work is to be executed, shall be considered as any part of this agreement, but shall be utterly null and void.^® Form No. 7. Building Contract. Clause for alterations in contract.'" Should the owner or the architect, at any time during the progress of the w^ork, request any alterations or deviations in, additions to, or omissions from this contract, or the plans or specifications, either of them shall be at liberty to do so, and the same shall in no way affect or make void this con- " Text. See '^Performance," §§ 334 et seq., ante. " Text. See " Construction of Building Contracts," §§ 216 et seq., ante. ^' Form, provision as to changes in contract: See People's L. Co. v. Gillard, 136 Cal. 55, 60, 68 Pac. Rep. 578. Text. See " Alteration of Original Contract," §§ 326 et seq., ante. Washington. Form, provision in contract as to alterations: See Drumheller v. American S. Co., 30 W^ash. 530, 71 Pac. Rep. 25. Form, provision in contract for alterations, etc., at a fair and reasonable valuation: See Crowley v. United States F. & G. Co., 29 V.'ash. 268, 69 Pac. Rep. 784. Form, contract, provision as to alterations and deviations from and additions to contract: See Friend v. Ralston, 35 Wash. 422, 77 Pac. Rep. 794, 795. FORMS. 813 tract ; but the amount thereof shall be added to or deducted from the amount of the contract price aforesaid, as the case may be, by a fair and reasonable valuation. And this con- tract shall be held to be completed when the work is finished in accordance with the original plans, as amended by such changes, whatever may be the nature or extent thereof.^** Form No. 8. Building Contract. Clause for written changes in contract.-' The rule of practice to be observed in the fulfilment of the last foregoing paragraph shall be, that, upon the demand of either the contractor, owner, or architect, the character and the valuation of any or all changes, omissions, or extra work, shall be agreed upon and fixed in writing, signed by the owner or architect and the contractor, prior to execu- tion.^^ Form No. 9. Building Contract. Clause for arbitration.-^ Should any dispute arise between the owner and the con- tractor, or between the contractor and the architect, respect- ing the true construction of the drawings or specifications, the same shall, in the first instance, be decided by the archi- tect ; but should either of the parties hereto be dissatisfied with the justice of such decision, or should any dispute arise between the parties hereto respecting the valuation of the extra work, work done, or work omitted, the disputed matter shall be referred to and decided by two competent persons, who are experts in the business of building, one to be selected by the owner or the architect, and the other b}- the » Text. See " Performance," §§ 334 et seq., ante. -' Text. See " Alteration of Orig-inal Contract." §S 326 et seq., ante. ^Vn.shington. Form, clause in contract as to alterations in con- tract upon written order of owner; arbitration as to value: See Childs I.. & Mfg. Co. V. Page, 28 Wasli. 128, 68 Pac. Rep. 373. - AVsiNliineton. Form, contract, provision as to extra work re- ruired to be evidenced by certificate of owner, countersigned by- architect: See Friend v. Ralston, 35 Wasb. 422, 77 Pac. Rep. 794, 796. Text. See "Extra W'ork," §§243 et seq., ante. ^ Text. See " Arbitration Clause," §§ 230 et seq., ante. 814 mechanics' liens. contractor; and in ease they cannot agree, these two shall select an umpire, and the decision of any two of them shall be binding on all parties.^* Form No. 10. Building Contract. Clause for damages for delay by contractor.-' Should the contractor fail to complete this contract, and the works provided for therein, within the time fixed for such completion, due allowance being made for the con- tingencies provided for herein, he shall become liable to the owner for all loss and damages which the latter may suffer on account thereof, but not to exceed the sum of fifty dollars per day for each day said works shall remain un- completed beyond such time for completion.^* Form No. 11. Building Contract. Clause for liability in case of destruction of building before completion. Owner and contractor sharing loss.-' In case said work herein provided for should, before com- pletion, be wholly destroyed by fire, defective soil, earth- quake, or other act of God, which the contractor could not have reasonably foreseen and provided for, then the loss occasioned thereby shall be sustained by the owner to the extent that he has paid instalments thereon, or that may be ^ Washing^ton. Form, contract, provision as to dispute arising as to the true construction, same sliall be decided by architect: See Friend v. Raltson, 35 Wash. 422, 77 Pac. Rep. 794, 795. Form, provision as to alterations; clause relating to reference to arbitrators in case of dispute as to value of alterations, construed: See Brown's Exrs. v. Farnandis, 27 Wash. 232, 67 Pac. Rep. 574. Form, provision in contract for extra work, requiring certificate from owner to be countersigned by architect: See Crowley v. United States F. & G. Co., 29 Wash. 268, 69 Pac. Rep. 784. (This provision of the contract for the benefit of the owner; intended as a rule of evidence, which may be waived: Id.) =" Oregon. Form, contract, provision as to delay: See Vanderhoof V. Shell. 42 Greg. 578, 72 Pac. Rep. 126, 130. AVashington. Form, provision in contract for damages to be fixed and determined by architect or arbitration: See Drumheller v. American S. Co., 30 Wash. 530, 71 Pac. Rep. 25. »> Text. See " Rights of Owner," § 510, ante. " Text. See § 530, ante. FORMS. 815 due under the fifth clause of this contract; and the loss occasioned therebj^, and to be sustained by the contractor, shall be for the uncompleted portion of said work upon which he may be engaged at the time of the loss, and for which no payment is yet due under said fifth clause of this contract. In the event of a partial destruction of said work by any of the causes above named, then the loss to be sustained by the owner shall be in the proportion that the amounts of instalments paid or due bear to the total amount of work done and materials furnished, estimated according to said contract price, and the balance of said loss to be sustained by the contractor. Form No. 12. Building Contract. Clause for liability in case of destruction of building before completion. Owner assuming loss.-* In case said work herein provided for should, before com- pletion, be wholly or partially destroyed by fire, defective soil, earthquake, or other act of God, which the contractor could not have reasonably foreseen and provided for, then the loss occasioned thereby shall be sustained by the owner, and the owner to agree to carry an insurance for the full amount of the labor and material as the work progresses. Form No. 13. Building Contract. Clause for inspection and approval of work.-^ The payment of the progress payments by the owner shall not be construed as an absolute acceptance of the work done up to the time of such payments; but the entire work is to be subject to inspection and approval of the architect or superintendent at the time when it shall be claimed by the contractor that the contract and works are completed; but the architect or superintendent shall exercise all reasonable diligence in the discovery, and report to the contractor as the work progresses, of materials and labor which are not =» Text. See § 530, ante. » Text. See, generally, §§ 229 et seq., ante. 816 mechanics' liens. satisfactory to the architect or superintendent, so as to avoid unnecessary trouble and cost to the contractor in making good defective parts. Form No. 14. Building Contract. Clause for completion of building by owner, upon default of contractor.-" Should the contractor, at any time during the progress of the work, refuse or neglect, Avithout the fault of the owner, architect, or superintendent, to supply a sufficiency of ma- terials or workmen to complete the contract within the time limited herein, due allowance being made for the contin- gencies provided for herein, for a period of more than three daj^s after having been notified by the owner, in writing, to furnish the same, the owner shall have power to furnish and provide said materials or workmen to finish the said work; and the reasonable expense thereof shall be deducted from the amount of the contract price. Form No. 15. Builder's Non-Statutory Original Contract.^^ Short form. (Agreement to build a house according to a plan annexed, material to be furnished by owner.) This Agreement, Made this day of , between A B, of , and C D, of , Witnesseth : That the said C D, for the considerations hereinafter mentioned, does, for himself, his executors and administrators, covenant and agree With the said A B, his executors, administrators, and assigns, that he, the said C D, or his assigns, will, within the space of working-days next after the date hereof, in good and workmanlike manner, and according to the best of his skill and ability, upon the premises hereinafter described, erect, build, and finish, in a good and substantial manner, a two-story frame or wooden ^ AVashington. Form, clause in contract, three days' notice to supply proper materials and to terminate contract: See Cliilds L. & Mfg. Co. V. Page, 28 Wash. 128, 68 Pac. Rep. 373. Text. See " Riglit to Complete Construction," § 519, ante. "^ Also adapted to all states not requiring contract to be accom- panied by formalities. Text. See " Non-Statutory Original Contract," §§ 258 et seq., ante. See Forms Nos. 1 to 14, and notes, ante. 1 FORMS. 817 building, according to the plans and specifications hereto annexed, and made a part hereof, of the dimensions follow- ing: — ; and to construct the same of such materials as the said A B, or his assigns, shall find and provide for the same ; in consideration whereof the said A B does, for him- self, his executors and administrators, covenant and agree well and truly to pay, or cause to be paid, unto the said C D, his executors, administrators, and assigns, the sum of . dollars,^- gold coin of the United States, in full for said work, when the same shall be completely finished ; and also that he, the said A B, his executors, administrators, or assigns, shall, at his and their own proper expense, find and provide all the stone, brick, tile, timber, and other material necessary for making and building said house, in such quantities and at such times as the same may be required. Owing to the impracticability and extreme difficulty of fixing the actual damages, there shall be a forfeiture of twenty dollars per day for each and every day over the stated time for the completion of said building, to be de- ducted from the contract price. The following is a description of the real property whereon said building is to be erected: [insert description]. In witness whereof, Said parties have hereunto set their hands and seals the day and year first above written. [L. S.] [L. S.] Signed, sealed, and delivered in the presence of [L. S.] [Annex plans and specifications.] Form No. 16. Bond for Performance of Original Contract.^^ Know all men by these presents, Tliat we, A B as principal, and C D and E F as sureties, all of the city and county of '-" One thousand dollars or less: Kerr's Cyc. Code Civ. Proe., § 1183. CoKtruflo. Non-statutory original contract, $500 or under: 3 Mills's Ann. Stats., 2d ed., § 2867 (Laws 1899, pp. 261, 262, § 1). ■i' Form, common-law bond, contractor's bond making' no reference to § 1203 of the Code of Civil Procedure, upheld, although section declared unconstitutional: See Alcatraz ^\. H. Assoc, v. United States F. & G. Co., 3 Cal. App. 338, 85 Pac. Rep. 156, 157. Mech. Liens — 52 818 mechanics' liens. San Francisco, are held and firmly bound unto G II, of the same place, in the sum of ten thousand dollars (or such other sura as raay cover all possible damages), in gold coin of the United States, to be paid to the said G H, his execu- tors, administrators, or assigns, for which payment well and truly to be made we bind ourselves, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals and dated this day of , one thousand eight hundred and ninety-nine. The condition of the above obligation is such. That whereas the said A B did, at the date hereof, enter into a contract, in writing, with the said G H, by which said A B agreed to erect a certain dwelling-house for the said G H, and fully fulfil and perform all the covenants, agreements, and stipu- lations therein contained on the part of said A B to be so fulfilled and performed, a copy of which agreement is hereto annexed and made a part hereof, — Form, bond, held valid, although statute is unconstitutional and void: See People's L. Co. v. Gillard, 136 Cal. 55, 58, 68 Pac. Rep. 576. Coniiuon-Ia^v bond: See Kiessig- v. Allspaugh, 91 Cal. 234, 27 Pac. Rep. 662. Text. See "Bond," §§ 281 et seq., and §§ 605 et seq., ante. Arizuna. Form, condition of bond: See Prescott N. Bank v. Head CAriz.), 90 Pac. Rep. 328. Idaho. Form of bond accompanying contract set out in American B. Co. V. Regents of University, 11 Idaho 163, 81 Pac. Rep. 604, 607. Oklahoma. See Rev. & Ann. Stats., (4829) §631, (4830) §632, (4831) §633. Oregon. Form, bond with original contractor's contract set out in Ausplund v. ^Etna Ins. Co., 47 Oreg. 10, 81 Pac. Rep. 577. See McKinnon v. Higgins, 47 Oreg. 44, 81 Pac. Rep. 581. Form, bond of contractor, set out in full, provisions construed: See Enterprise H. Co. v. Book, 48 Oreg. 58, 85 Pac. Rep. 334. Form, bond, clause as to protection against mechanics' liens; pay- ment for materials; certificate of county clerk and recorder that no lien filed: See Hand Mfg. Co. v. Marks, 36 Oreg. 523, 52 Pac. Rep. 512, 53 Id. 1072, 59 Id. 549. Form, bond, clause as to preserving building free from liens: See Henry v. Hand, 36 Oreg. 492, 59 Pac. Rep. 330. ^Vashing^on. See Pierce's Code, § 6102, as amended Laws 1905, ch. cxvi. Form, contractor's bond, provision as to time for commencing suit: See Friend v. Ralston, 35 Wash. 422, 77 Pac. Rep. 794, 795. Form, bond, time within which action must be brought: See Beebe v. Redward, 35 TVash. 615, 77 Pac. Rep. 1052. Form, bond, recitals and obligation: See Drumheller v. American S. Co., 30 Wash. 530, 71 Pac. Rep. 25. I FORMS. 819 Now, therefore, if the above-bounden A B, his executors, administrators, or assigns, shall in all things stand to, abide by, and well and truly keep and perform the covenants, con- ditions, and agreements in the said contract contained, on his part to be kept and performed, at the time and in the manner and form therein specified, then the above obligation shall be void, else to remain in full force and virtue. A B [L. S.] C D [L. S.] E F [L. S.] Signed, sealed, and delivered in the present of [Attached to copy of contract.] Form No. 17. Notice of Non-Responsibility by Owner. Structure. '^^ [Kerr's Cyc. Code Civ. Proc, § 1192.] To All Whom It may Concern, Notice is hereby given, That, whereas I, the undersigned, am the owner of [or if only an interest in the property is claimed or held, state, " have and claim an interest in "] the following described lot of land in the city and county of San Francisco, state of California [here describe land] ; And that I have within the last three days obtained knowl- edge that the following construction [or " alteration " or "repair," as the case may be] has been commenced to be made thereon [or " has been made," as the case may be, or " that the following construction " (or " alteration " or " re- pair ") is intended thereon] viz. [here describe it] ; that the said construction [or " alteration " or " repair "] is being [or " about to be "] done without my consent, authority, »< Alaska. See Civ. Code, § 265. Col<»ru«Io. See 3 Mills's Ann. Stats., 2d ed., § 2871. Kevaila. See Cutting's Conip. Laws, § 3889. New Mexico. See Comp. Laws, § 2226. Orcson. See Belling-er and Cotton's Ann. Codes and Stats., S§ 5643, 5668, as amended Gen. Laws 1907, p. 293, §§ 1, 6. Form, notice of non-responsibility (held sufficient, under S 5643, Bel- Hnger and Cotton's Ann. Codes and Stats.), set out in Marshall v. CardineU, 46 Greg. 410, 80 Pac. Rep. 652. Text. See "Notice of Non-Responsibility," §§473 et seq., ante. 820 MECHANICS' LIEXS. license, or permission; and notice is hereby given that I will not be responsible for the same, or any part thereof, and that I will oppose any attempt to make the cost of the same, or any part thereof, a lien upon the land above described. A B Dated at San Francisco this day of , 1899. Form No. 18. Notice of Non-Responsibility by Owner. Mining claim.^^ The undersigned, owners [or, state interest] of the Good Luck ]\lines, with all their mills, chlorinati on- works, build- ings, ditches, dams, pipe lines, giants, and other appurte- nances, located in the Good Luck mining district, county of Eldorado, state of California, having leased said property to J K for a period of three years, commencing from and after the second day of January, 1908, hereby give notice that said undersigned will be in no way responsible for any debts contracted by said J K or of his agent, or any person in possession of said property, or working on, improving, or developing the same, for any work or labor performed or material supplied in the working, development, or improve- ment of said property, or in the construction, alteration, or repair of any structure thereon, within said period of said lease, nor will said property, nor the interest of the under- signed therein, be subject to a lien for any of such work or material. (Signed) R V Dated December 26, 1907. Form No. 19. Statement of Contractor. Made to architect or owner as to liens, to obtain payment. I, A B, the party of the second part in the written agree- ment annexed [or, otherwise identify the agreement], hav- ing performed so much of said agreement as to entitle me to the first [or, " second " or " third," as the case may be] pay- ment in said agreement, covenanted by the party of the first 35 Text. See "Notice of Non-Responsibility," §§473 et seq., ante. See Form No. 17, notes, ante. FORMS. 821 part to be paid to me, do hereby declare that I do not OAve, nor am I liable to, any person or persons for any work or labor done or performed for me in the said work so far as it has progressed, nor for any materials furnished to me by any person or persons whatever, in carrying on the said work, so far as it has progressed, and that no debt incurred in the performance of said agreement by me can, at any time, under the laws of the state of California, be made a lien on the building or real property in said agreement de- scribed. This statement is made to enable me to obtain the said payment, which I claim to be now due under said agree- ment. Dated this day of , 1899. Form No. 20. Notice to Owner of Furnishing Materials or Performing- Labor.'" [Kerr's Cyc. Code Civ. Proc, § 1184.] To Notice is hereby given, That the undersigned has per- formed labor [or, " furnished materials," or both, or " has agreed to " do so, as the case may be] for , your con- tractor [or, "a person acting by your authority"], in the construction [or, " alteration " or " repair "] of that certain structure or improvement situate [here insert description of property] . The following is a statement, in general terms, of the kind of labor [or, " materials," inserting cost, dates, quantities, and (lualities]. The amount in value of that already done [or, " fur- nished," or both], as near as may be, is dollars; and the amount in value of the whole agreed to be done [or, " furnished," or both] is dollars. 3« Text. See " Notice to Owner," §§ 547 et seq., ante. Ari/,«na. See Rev. Stats. 1901, §§2890, 2899. Colorado. The foregoing form substantiaUy complies -witii 3 Mills's Ann. Stats., 2d ed., § 2868. Huwnil. See Rev. Laws, § 2174. Oklalioiun. See Rev. & Ann. Stats., (4819) §621. Wyomint;. See Rev. Stats., § 2876 (mines). 822 mechanics' liens. And you are hereby notified to withhold from said con- tractor [or, " person acting by your authority "] sufficient money to answer the foregoing claim, and any lien that may be filed therefor for record under chapter two, title four, part three, of the Code of Civil Procedure of California [or give title of statute], including counsel fees, besides costs, provided for in said chapter. Dated this day of , 1899. Form No. 21. Notice, by Owner, of Completion of Building, or of Cessation from Labor.^' [Kerr's Cyc. Code Civ. Proc, § 1187.] To Whom It may Concern. Notice is hereby given by G H, the owner of the property hereinafter described : That the building [" improvement," or " structure," or the " alteration," " addition to," or " repair thereof," as the case may be] situated on the premises hereinafter descrihert, the contract for which was heretofore, to wit, on the second day of January, 1899, let to A B, and which contract was filed for record in the recorder's office of the city and county of San Francisco, state of California, on the second day of January, 1899, was actually completed on the tenth day of March, 1899, and accepted by me on said day. [Or, in case of cessation from labor for thirty days, say, " That there has been a cessation from labor upon the con- tract heretofore, to wit, on the second day of January, 1899, entered into between me and A B, which contract was filed for record in the recorder's office of the city and county of San Francisco, state of California, and which said contract is unfinished, and upon the building [' improvement,' or ' structure,' or ' upon the alteration,' * addition to,' or ' repair thereof,' as the case may be] to be erected [' altered,' ' added to,' or 'repaired'], under said contract, upon the premises hereinafter described for thirty days, and that the date on which such cessation actually occurred was the third day of February, 1899."] • »' Text. See "Notice of Completion," §§425 et seq., ante. FORMS. 823 That the name of the person who caused the said building [" improvement " or '' structure "] to be erected [or, " said alteration," " addition to," or "repair to be made "] is G H. That the nature of the title of said person is as follows: Said G H is and was the owner in fee-simple of said prop- erty. That the following is a description of said property [insert description, at least sufficient for identification]. G H Dated this eleventh day of March, 1899. >, } ''• Form No. 22. Verification to Foregoing Notice.^^ State of California, City and County of San Francisco, G H, being first duly sworn, deposes and says : That he is the owner [or, in case of verification by some other person, "that he is the book-keeper (or agent), and authorized to make and file the foregoing notice and to make this verifica- tion in behalf of the owner "] of the property described in the foregoing notice, and who is mentioned^ therein ; that he has [heard] read said notice, and knows the contents thereof, and that the same is true of his own knowledge [in case of verification by agent, add reason for making verification]. G H Subscribed and sworn to before me this eleventh day of March, 1899. [Seal] , Notary Pul)lic. Form No. 23. Claim of Lien. Original Contractor. Structure.^^ A B -) G hJ To Whom It may Concern. Notice is hereby given: 1. That I, A B, of the city and county of San Francisco, state of California, have performed •» Text. See "Verification of Claim," §410, ante. " This form contains some statements not absolutely required by Kerr's Cy«. Code Civ. Froo., § 1187: but to render the same more general, in view of decisions in other jurisdictions, it is given as above. 824 mechanics' liens. labor and furnished materials in the construction [" altera- tion," " addition to," or " repair," or show that the nature of the labor is within the statute] of that certain building, improvement, or structure [or, show that the object is Text. See " Contents of Claim," §§ 370 et seq., ante. Form, claim of lien held sufficient: See Weldon v. Superior Court, 138 Cal. #27, 428, 71 Pac. Rep. 502. Alaska. Similar form can be used: Civ. Code, § 266. Ariseona. See Rev. Stats. 1901, § 2889 (contract or itemized ac- count); Kev. Stats. 1901, §2891 (description); Rev. Stats. 1901, | 2898 (attested account). Colorado. Sii^iilar form: 3 Mills's Ann. Stats., 2d ed., §2875. Hawaii. See Rev. Laws. § 2174. Idalio. Similar form: Sess. Laws 1899, p. 148, § 6. Montana. A just and true account of the amount due (substan- tially the same as under the California statute) required; but "terms, time given, and conditions of contract " not required by statute. See Code Civ. Proc, § 2131, as amended Laws 1901, p. 162. Nevada. Claim of lien same as in California, under amendment Stats. 1903, p. 51 (Cutting's Comp. Laws, §3885). Amount must be over $5. New Mexico. Similar form: Comp. Laws, § 2221. Form, claim of lien; substance of claim set out; held to be suffi- cient (under Comp. Laws 1897): See Pearce v. Albright, 12 N. M. 202, 76 Pac. Rep. 286. Olvlahouia. Different form: See Rev. & Ann. Stats., (4818) § 620, (4819) § 621. Claim can be amended: See Rev. & Ann. Stats., (4821) § 623. See form of " statement," Blanshard v. Schwartz, 7 Okl. 23, 54 Pac. Rep. 303. Form, statement, claim of lien: See Ferguson v. Stephenson- Brown L. Co., 14 Okl. 148, 77 Pac. Rep. 184. Form, notice of filing claim served on owner, approved: See Fer- guson V. Stephenson-Brown L. Co., 14 Okl. 148, 77 Pac. Rep. 184. Oregon. As to mines, Bellinger and Cotton's Ann. Codes and Stats., §5669, as amended Gen. Laws 1907, p. 295; and as to structures, Bel- linger and Cotton's Ann. Codes and Stats., § 5644. California form applicable; but statement of "terms, time given, and conditions of the contract " not expressly required. Utali. Claim should contain a notice of intention to claim and hold a lien. Mention of name of reputed owner not required. The time when the first and last labor was performed, or the first and last materials were furnished, should be stated: See Rev. Stats., § 1386, and also §§ 1388, 1399. ^Va.sllington. Statutory form of claim: See Pierce's Code, § 6106. Form, claim of lien (verification and formal parts omitted) stated by court to be sustantially in the form set out and provided for by 2 Ballinger's Ann. Codes and Stats., § 5904, which superseded 1 Hill's Code, § 1667: See Seattle L. Co. v. Sweeney, 33 Wash. 691, 74 Pac. Rep. 1001. Form, claim of lien, extra work; form stated in substance; held sufficient (under 2 Ballinger's Ann. Codes and Stats., §5904): See Young v. Borzone, 26 Wash. 4, 66 Pac. Rep. 135, 140, 421. Wjoniing. See Rev. Stats., §§ 2871, 2872, 2879 (mines), and § 2893 (structures). FORMS. 825 within the statute] now upon that certain lot or parcel of land situate in the city and county of San Francisco, state of California, and sought to be charged with the lien hereby claimed, and more particularly described as follows, to wit [insert description sufficient for identification]. 2. That G H is the name of the owner [or, " reputed owner "] of said premises, and caused said building [" structure " or " improvement," or state object] to be con- structed [or, "altered," "added to," or "repaired"; or state nature of labor] . 3. That the name of the person by whom I was employed, and to whom I furnished said materials, is G H. 4. That on the second day of January, 1899, I entered into a contract with said G H for the construction [" alteration," "addition to," or "repair"] of said building ["improve- ment " or " structure "], and the following is a statement of the terms, time given^ and conditions of said contract, to wit [here be careful to insert exactly all the terms, time of payment given, and conditions expressly agreed upon, and, if the contract is in writing, it is advisable to copy the exact language of the same]. 5. That said contract has been fully performed on my part, and the same was completed, and the construction [" altera- tion," "addition to," or "repair"] of said building ["im- provement" or "structure"] was completed on the tenth day of March, 1899, and sixty days [or, state statutory period] have not elapsed since the same were completed. 6. That the following is a statement of my demand, after deducting all just credits and offsets, to wit: [here insert the contract price, the amount paid thereon, and the balance due and unpaid, " after deducting all just credits and offsets." In those states where a " statement of ac- count " is required, the details of debit and credit should be set forth. It is advisable in all cases to give the exact dates of the first and last items] . Wherefore, I claim a lien upon said property, and the benefit of the law relating to the liens of mechanics and others upon real property, to wit, chapter two, title four, part three, of the Code of Civil Procedure of the state of California [or insert title of statute]. A B 826 MECHANICS LIENS. SS. Form No. 24. Verification to the Foregoing.^ State of California, City and County of San Francisco, A B, being duly sworn, deposes and says : Tliat he is the [" agent," etc. Compare verification to notice of completion by agent, Form No. 22] person named as claimant in the foregoing claim of lien; that he has [heard] read the same, and knows the contents thereof, and that the same is true of his own knowledge ; and that the contents show (among other things) a correct statement of said claimant's demand, after deducting all just credits and offsets. A B Subscribed and sworn to before me this twelfth day of March, 1899. [Seal] . , Notary Public. Form No. 25. Claim of Lien. (Owner's material-man or laborer.) Structure. [See Form No. 23.] L M V. G H To Whom It may Concern. Notice is hereby given. That I, L M. of the city and county of San Francisco, state of California, have furnished ma- terials [or, "performed labor"], as hereinafter stated, in the construction [" alteration," " addition to," or " repair," *" Text. See "Verification," §410, ante. Alaska. Similar form: See Civ. Code, § 266. Colorado. Similar form: See 3 Mills's Ann. Stats., 2d ed., § 2875. Idaho. Affidavit that claimant believes the same to be just: See Sess. Laws 1899, p. 148, § 6. Nevada. Similar form: See Cutting's Comp. Laws, § 3885, as amended Stats. 1903, p. 51. OreKon. Similar form: See Bellinger and Cotton's Ann. Codes and Stats.. § 5644; and § 5669, as amended Gen. Laws 1907, p. 295. See form, Curtis v. Sestanovich, 26 Oreg. 107, 37 Pac. Rep. 67. Utah. Similar form: See Rev. Stats., §§1386, 1388, 1399. AVashingrtou. Statutory form: See Pierce's Code, § 6106. Wyoming-. See Rev. Stats., §§ 2871, 2872, 2879, 2893. *^ See notes to Forms 23, 24, ante. Text. See "Contents of Claim," §§370 et seq., ante. Form, material-man's claim of lien (two forms), set out and ap- proved in Germania B. & L. Assoc, v. Wagner, 61 Cal. 349 I FORMS. 827 or state nature of labor] of that certain building [" improve- ment " or " structure," or state object of labor] now upon that certain lot or parcel of land situate in said city and county of San Francisco, and sought to be charged with the lien hereby claimed, and more particularly described as follows, to wit: [insert description]. [Insert paragraph 2 of Form No. 23.] That the name of the person to whom I furnished said materials [or, " by whom I was employed "] is G H. That said materials were so furnished [or, " said labor was performed "] between the second day of January, 1899 [date of first item], and the first day of February, 1899 [date of last item. Be sure that the dates are correct] ; and the same was, at the special instance and request of said G H, furnished for and actually used in said construction [" alteration," " addition to," or "repair"], and the follow- ing is a statement of the terms, time given, and conditions of my contract therefor with said G II, to wit : I sold and delivered between the second day of January, 1899, and the first day of February, 1899, to said G H, cer- tain material, to wit, twenty thousand feet one-by-four floor- ing, at the agreed price of twenty dollars per thousand feet, net, and said G H agreed to pay therefor upon the comple- tion of said building [or, in the case of labor, " I was em- ployed by said G H as a journeyman carpenter for tAventy days in and al)out said building, at the agreed wages of five dollars per day, and said G H agreed to pay the same weekly." See Form No. 23]. That said contract has been fully performed on my part, and the same was completed, and the construction [" altera- tion," " addition to," or " repair "] of said building [" im- provement " or " structure "] was completed on the tenth day of March, 1899, and notice thereof was on said day filed with the recorder of said city and county, by said owner, and thirty [or, the statutory period] days have not elapsed since said completion [and the filing of notice thereof]. That the following is a statement of my demand, after deducting all just credits and offsets : 828 mechanics' liens. The total agreed price of said lumber is four hundred dollars ; said G H has paid me, on account thereof, the sum of one hundred dollars; and the balance — three hundred dollars — is still due and unpaid, after deducting all just credits and offsets [or, in the case of labor, " the total agreed value of my labor is one hundred dollars, and no part of the same has been paid, and the whole thereof is due and unpaid, over and above all just credits and offsets "]• AVherefore, I claim a lien for my said demand [as in Form No. 23]. L M [Verification as in Form No. 24.] Form No. 26. Miner's Claim of Lien. General form/^ L M ^ V. California Consolidated Mining Company (a Corporation). To Whom It may Concern. Notice is hereby given. That I, L M, of Grass Valley, Nevada County, state of California, have performed labor as a miner, as hereinafter stated, in a certain mining claim, commonly known as and called the " Klondyke Claim," situ- ate in the Chilkoot mining district, in said county, and sought to be charged with the lien herein claimed, and Avhich is more particularly described as follows [here describe the mining claim, stating the number of feet of ground over which the claim extends, and which it includes, all of Avhich will generally be found in the deed or claim recorded in the office of the recorder of the district or county]. « This form may be chang-ed so as to be adapted to the claim of a contractor for repairing- in a mining claim, or for erecting- an aque- duct or flumes and sluices leading- to or from a mining claim, or ex- cavating a tunnel in or a ditch or canal leading to a mining claim, or similar work. Form, claim of lien, mining claim: See Castagnetto v. Copperto-wn Min. & S. Co., 146 Cal. 339, 80 Pac. Rep. 74. See Forms Nos. 23, 24, 25, and notes, ante. Text. See "Contents of Claim," §§370 et seq., ante. jVew Mexico. Form, miner's claim of lien, superintending mine, set forth: See Boyle v. Mountain Key M. Co., 9 N. M. 237, 50 Pac. Rep. 347 (the lien was held void, but only owing to the nature of the labor). FORMS. 829 That the California Consolidated Mining Company (a corporation) is the name of the owner [or reputed owner] of said mining claim. That J K is the name of the person by M^hom I was em- ployed to perform the labor herein mentioned, and who, as superintendent, had charge of the mining in said claim, by authority of said owner. That the following is a statement of the terms, time given, and conditions of the contract under which I performed said labor, to wit: Said J K agreed to pay me five dollars per day, payable upon demand, as long as I worked for said corporation, as a miner in said claim [insert all provisions expressly agreed upon] . That, under said agreement, I labored as a miner in the tunnel on said claim [or otherwise show that it was labor in a mining claim] for ten days, to wit, from the fifth day of October, 1897 [the date of commencing said labor] , to the fourteenth day of October, 1897 [the date of the ceasing of said labor], both inclusive. That thirty days [or state statutory time] have not expired since the performance by me of said labor. That the following is a statement of my demand, after deducting all just credits and offsets. The total amount of agreed wages was fifty dollars, and there has been paid to me, on account thereof, the sum of twenty-five dollars, and the balance thereof, to wit, twenty-five dollars, still remains due and unpaid, over and above all just credits and offsets, although I have demanded the same from said corporation, for which balance, to wit, twenty-five dollars, I hereby claim a lien upon said mining claim, together with the improve- ments and appurtenances [and the works owned and used by said corporation for reducing the ores from said mining claim], under and by virtue of chapter two, part three, title four, of the Code of Civil Procedure of the state of Cali- fornia [or insert title of statute]. L M [Verification as in Form No. 24.] 830 mechanics' liens. Form No. 27. Claim of Lien. Subclaimant; subcontractor in the first degree; contractor's material-man or laborer.*^ Structure. [See Form No. 23.] NO -| A B and G H J To AVliom It may Concern. Notice is hereby given, That I, N 0, of the city of Oakland, county of Alameda, state of California, have performed labor and furnished materials [or either, in the case of con- tractor's material-man or laborer, respectively] in the con- struction [see Form No. 23] of that certain building, im- provement, or structure now upon that certain lot or parcel of land situate in the city and county of San Francisco, state of California, and sought to be charged with the lien hereby claimed, and more particularly described as follows, to wit: [insert description]. That G H is the name of the owner [or, " reputed owner "] of said premises, and caused said building to be constructed. That A B is the name of the contractor, who, on the second day of January, 1899, as such contractor, employed by said owner, G H, and in charge of the construction of said build- ing, entered into a contract [in writing] with me, under and by which I was to perform the labor on and furnish the materials for all the brickwork in said building [or, set out the contract, if for labor or materials ; as in Forms Nos. 23 and 25], and the following is a statement of the terms, time given, and conditions of said contract, to wit: [insert the same. See Form No. 23] ." *" Form, claim of lien, contractor's material-man: See Madary v. Smartt, 1 Cal. App. 498, 500, 82 Pac. Rep. 561. Kerr's Cye. Code Civ. Proc, §1187, provides specifically "what matters and things are es- sential to be stated in a claim of lien, all of which appear in this lien." See preceding forms, and notes to Forms 23, 24, ante. Text. See " Contents of Claim," §§ 370 et seq., ante. Colorado. Form, claim of lien for materials, contractor's material- man: See Sickman v. Wollett, 31 Colo. 58, 71 Pac. Rep. 1107 (held suf- ficient). ** This form may be adapted for subcontractors in the second and subsequent degrees, and subcontractors' laborers and material-men. FORMS. 831 That said contract has been fully performed on my part, and the same was completed, and the construction of said building was completed, on the tenth day of JMarch, 1899, and on said day said G H filed with the recorder of said county notice of completion thereof, and thirty days have not elapsed since the said completion and the said filing of notice thereof. That the following is a statement of my demand, after deducting all just credits and offsets : N [See preceding forms.] [Conclude as in previous forms.] [Verification as in Form No. 24.] Form No. 28. Claim of Lien against Two Contiguous Build- ings Owned by the Same Person.' ■ General form. [Kerr's Cyc. Code Civ. Proc, §§ 1187, 1188. J [See Form No. 23.] A B V. G H To Whom It may Concern. Notice is hereby given, That I, A B, of [state residence], have performed labor, etc. [see preceding forms], in the construction [or, state nature of labor] of those certain buildings [or, state object of labor] now upon those certain lots or parcels of land situate in the city and county of San Francisco, state of California, and sought to be charged with the lien hereby claimed, and more particularly described as follows, to wit : by changing the first part of this paragraph, in manner foUowing, thus: "That A B is the name of the contractor, who, on the second day of January, 1899, as such contractor, in charge of the construc- tion of said building, and employed by the owner, G H, therefor, entered into a contract with N O P, as subcontractor, to perform all the tinning to be performed in the construction of said building, and that said subcontractor, N O P, in charge of said tinning, entered into a contract with me, under and by which I was to perform the labor," etc. (following rest of paragraph). ■"^ Text. See " Two or More Descriptions," §§ 406 et seq., and §§ 502 et seq., ante. Idaho. See Sess. Laws 1899, p. 152, § 7. Nevada. See Cutting's Comp. Laws, § 3886. New Mexico. See Comp. Laws, § 2222. Washington. See Pierce's Code, § 6109. 832 mechanics' liens. [Insert description of each piece separately.] [Insert paragraphs 2, 3, 4, and 5, as in Form No. 23, mak ing the statements applicable to both buildings.] That the following is a statement of my demand, after deducting all just credits and offsets, to wit : [Here insert statements showing the total amount on each object, the amounts paid on each, if any, and the balance due on each ; for instance : " I performed labor as a hodman in carrying bricks and mortar to said contiguous buildings for a period of thirty days, as aforesaid, at the agreed rate of three dollars per day, making, for said work on said two buildings, the sum total of ninety dollars ; that twenty days of said labor, of the agreed value of sixty dollars, was per- formed on the east building, situate on the lot first herein- above described, that no part thereof has been paid to me, and that the amount due and unpaid to me thereon is said sum of sixty dollars, over and above all just credits and off- sets ; that ten days of said labor, of the agreed value of thirty dollars, was performed on the west building, situate on the lot secondly above described, that the sum of twenty dollars has been paid thereon to me, and that the amount due and unpaid to me thereon is the sum of ten dollars, over and above all just credits and offsets; and that the sum total due and unpaid to me on said two contiguous buildings is seventy dollars, over and above all just credits and offsets."] Wherefore [conclude as in Form No. 23]. A B [Verification as in Form No. 24.] Form No. 29. Claim of Lien for Grading Lot in Incorpo- rated City.'" [Kerr's Cyc. Code Civ. Proc, § 1191.] A B V. G H To Whom It may Concern. Notice is hereby given, That I, A B, of the city and county of San Francisco, state of California, have per- ■•8 Text. See §364; and "Grading and Other Work," §§139 et seq., ante. FORMS. 833 r/ formed labor and furnished materials in filling in and grad- ing the lot hereinafter described in the incorporated city of San Jose, county of Santa Clara, state of California, and sought to be charged with the lien hereby claimed, and more ^ particularly described as follows, to wit : [insert de- scription] . ^' That G H is the name of the owner of said lot, and that said G H caused said lot to be graded, filled in, and improved as herein stated. X That G H is the name of the person by whom I was em- ployed, and to whom I furnished said materials as herein stated. That said labor was performed and materials furnished at the special instance and request of said owner, G H, between the first day of March, 1898, and the tenth day of March, 1898, and the following is a statement of the terms, time given, and conditions of the contract under which the same was performed and furnished, to wit : On the first day of March, 1898, I agreed to fill in with sand, and grade to the ofiicial grade of said street, the said lot within tAventy days from said date, and said G H agreed to pay me therefor the sum of two hundred dollars, in gold coin of the United States, within ten days after the completion thereof, or on the completion thereof, less five per cent discount, at my option. That said contract has been fully performed on my part, and the same was completed, and said filling, grading, and improvement was completed, on the tenth day of March, 1898, and thirty days have not elapsed since the same was , completed, and since said sum became due and payable. ^ That the following is a statement of my demand, after See notes to Foi-ms Nos. 23 and 24, ante. Alaska. See Civ. Code, § 269. Idaho. See Ses.s. Law.s 1899, p. 147, § 3. Moutsina. See Code Civ. Proc, § 2130. Nevada. See Cutting's Comp. Laws, § 3882. New Mexico. See Comp. Laws, § 2218. Oregon. See Belling-er and Cotton's Ann. Codes and Stats., §§ 5647, 6663. WaHhington. See Pierce's Code, § 6104. Mech. Liens — 53 834 mechanics' liens. deducting all just credits and offsets: The sum total of said contract price, to wit, two hundred dollars, in gold coin of the United States, after deducting all just credits and offsets, no part of which has been paid [although more than ten days have elapsed since said completion] . Wherefore [conclude as in Form No. 23]. A B [Verification as in Form No. 24.] Form No. 30. Owner's Notice to Contractor to Defend Lien Suits.^' [Kerr's Cyc. Code Civ. Proc, § 1193.] To Mr. A B. Sir, — You will please take notice that an action has been commenced against me in the superior court of the state of California, in and for the city and county of San Francisco, by C D, as plaintiff, and in his complaint therein said C D claims a lien on the property and building which you have, under agreement between us, been constructing for me, situ- ate on F Street, in said city and county, for materials fur- nished and labor performed by him for you in the construc- tion of said building, to the amount of one thousand dollars. I hereby require you to defend said action at your own ex- pense ; and notify you that I will withhold payment of any amount to become due under our said contract during the pendency of said action; and in case of judgment against me or said property upon the said lien, I shall deduct from any amount due or to become due by me to you, the amount of such judgment, costs, and expenses, and will hold you liable for any excess. : Dated this day of , 19 — « Alaska. Similar form: See Civ. Code, § 272. Arizona. Similar form: See Rev. Stats. 1901, §2901. Idaho. Similar form: See Sess. Laws 1899, p. 148, §10. Nevada. Similar form: See Cutting's Comp. Laws, §3890. New Mexico. Similar form: See Comp. Laws, § 2227. Oklahoma. Similar form: See Rev. & Ann. Stats., (4822) § 624. Oregon. Similar form: See Belling-er and Cotton's Ann. Codes and Stats., § 5650. \Va.sh!n&ton. Similar, form: See Pierce's Code, §6111. ■Wyomiog. Similar form: See Rev. Stats., § 2906. MECIIxVNlCS LIENS. 835 Form No. 31. Release of Lien." Know all meu by these presents, That I, A B, of the city and county of San Francisco, state of California, for and in consideration of the sum of five hundred dollars, gold coin of the United States of America, to me in hand paid by C D, of the same place, have released and forever discharged, and by these presents do release and forever discharge, the said C D from any and all liability under and by virtue of that certain claim of lien, heretofore, to wit, on the third day of February, 1908, filed in the office of the county recorder of the city and county of San Francisco, state of California, and recorded in liber five of liens, at page 601, (and do hereby forever release and discharge any lien thereby claimed, or arising out of the transaction therein set forth ; ^ and in consideration of the premises I do hereby further release and discharge the property in said claim of lien described from any and all claims and demands of whatso- ever nature. In witness whereof, I have hereunto set my hand and seal this fifth day of February, A. D. 1908. A B [Seal] Witness : X Y. Form No. 32. Complaint for Foreclosure of Lien." Original contractor, under non-statutory original contract. (This form may be used for owner's material-man or laborer, mutatis mutandis.) In the Superior Court of the State of California, in and for the City and County of San Francisco. A B, Plaintiff, V. G H, P, R S, and T U, Defendants. Plaintiff complains of defendants, and for cause of action alleges : ^'* Form, composition agreement to release contractor and build- ing; construed: See Schroeder v. Pissis, 128 Cal. 209, 211, 60 Pac. Rep. 758. «» Text. See " Complaint," §§ 670 et seq., ante. 836 mechanics' liens. 1. That at all the times herein mentioned defendant G H was and now is the owner of the real property hereinafter described. 2. That on the first day of March, 1898, plaintiff and the defendant G H entered into an agreement, in writing, whereby plaintiff agreed to furnish the material and con- struct for the said defendant G H a certain building upon the lands hereinafter described, and that the said defendant G H agreed to pay him therefor the sum of nine hundred dollars, in gold coin of the United States, upon completion thereof [or as the case may be] , a copy of which said agree- ment is hereto attached, marked " Exhibit A," and made a part hereof. 3. That plaintiff completed said building, under the terms of said contract, on the tenth day of May, 1898, and that he has fully kept and performed the said agreement in all things, and has performed all conditions precedent therein en his part to be kept and performed. 4. That said defendant G II has not paid the said sum of nine hundred dollars mentioned in said agreement, nor any part thereof, although plaintiff has often demanded pay- ment thereof from said defendant G H. 5. That the lands upon which said building was so erected under said contract are described as follows, to wit : [insert description, such as would be proper upon foreclosure of mortgage]. 6. That the same is and includes the land required for the convenient use and occupation of said building. 7. That the plaintiff began to furnish the materials for said building, and to perform said labor thereon, under said contract, on the second day of March, 1898, and that all said material was furnished for and actually used in the con- struction of said building. 8. That thereafter, and within ninety days after the com- pletion of said contract and of said building, and within This form may be adapted for use in Alaska, Oregon, Idaho, and Nevada. Colorado. Also aUege. service of notice of intention to file claim. AVnshington. Form, general statement. of the requirements of the complaint under act of Marcli 6, 1897, giving laborers a general lien on all property of certain corporations, etc.: See Fitch v. Applegate, 24 Wash. 31, 64 Pac. Rep. 147. FORMS, 837 ten daj's after the filing in the office of the county recorder of said city and county of a notice of completion thereof by the owner of said property [or, set forth facts showing that the claim was filed within the statutory time], to wit, on the twentieth day of. May, 1898, plaintiff filed for record with the county recorder of said city and county his claim of lien, in writing, a copy of which is hereto annexed, marked " Exhibit B," and made a part hereof [if it is not desired to annex a copy of the claim of lien, state " that the same con- tained a statement of his demand, and the amount due to plaintiff for said labor, and materials furnished for and actually used in the construction of said building, as afore- said, after deducting all just credits and offsets " ; and the name of the owner of said premises, and the name of the person who employed plaintiff and to whom plaintiff fur- nished said materials; and a statement of the terms, time given, and conditions of said contract, with a description of the said property to be charged with said lien, sufficient for identification ; or, set forth the facts required to be stated in the claim of lien, by the statute] ; and that said claim of lien was verified by the oath of plaintiff, subscribed and sworn to before M B, a notary public in and for said city and county, and that said notary public then certified to said oath under his hand and seal of office, and that said oath was attached to said claim of lien and filed there- with, and thereafter, on said day, said claim of lien and oath were recorded by said recorder in the office of said recorder, in a book kept by him for that purpose, to wit, in liber 58 of liens, at page 62; and that ninety days have not elapsed since the filing of said claim of lien for record, as aforesaid [or, set forth facts showing that the suit has been commenced within the statutory time], 9. That plaintiff has paid, as necessary expenses for veri- fying said claim of lien, the sum of fifty cents, and for filing and recording the same the sum of three dollars. 10. That the sum of one hundred and fifty dollars is a reasonable attorney's fee to be allowed to plaintiff in this action in the superior court. [Where attorneys' fees are not allowed, the allegation should, of course, be omitted.] 838 mechanics' liens. 11. That the defendants P, R S, and T U have, or claim to have, some interest in or lien upon said premises, but that all such claims or liens are subject and subsequent to the lien of plaintiff, as aforesaid. Wherefore, plaintiff prays: 1. For judgment against said defendant G H for said sum of nine hundred dollars, in gold coin of the United States, and interest thereon from the tenth day of May, 1898, at the rate of seven per centum per annum, and costs of this suit. 2. That the court decree that the plaintiff has a lien upon said building, and upon all the land herein described, for said sum of nine hundred dollars, in gold coin of the United States, with interest thereon from the tenth day of May, 1898, at the rate of seven per centum per annum, together with plaintiff's costs of suit [where attorneys' fees are al- lowed, add : " including one hundred and fifty dollars as reasonable attorneys' fees," or the statutory limit], and three dollars and tifty cents, the expense of verifying and recording said claim of lien. 3. That all said real property and the building thereon be sold under the order and decree of this court, according to law, and the proceeds thereof applied to the payment of the sum found due to plaintiff, as aforesaid, including the costs, expenses [and attorneys' fees] aforesaid, and that plaintiff may have execution against said defendant G H for any deficiency which may arise after the said application of said proceeds. 4. That the interests, estates, or claims of all the defend- ants, and each of them, in, to, or upon all said building and real property, and every part thereof, be adjudged to be subsequent and subject to the plaintiff's lien, as aforesaid; and that the equity of redemption of each and every of said defendants in and to said premises, and every part thereof, be forever barred and foreclosed. 5. That plaintiff, or any other party to this action, may become purchaser at said sale. 6. That plaintiff may have such other, further, or different relief as may be proper and equitable in the premises. [Verification.] , Attorney for Plaintiff. FORMS. 839 Form No. 33. Complaint for Foreclosure of Ori^nal Con- tractor's Lien, under Statutory Original Contract.'"' [Title of court and cause.] Plaintiff complains of defendants, and for cause of action alleges : 1. [Same as paragraph 1, Form No. 18.] 2. That on the first day of March, 1898, plaintiff and the defendant G H entered into an agreement, in Avriting, sub- scribed by plaintiff and said defendant, whereby the plain- tiff agreed to furnish the material and construct for the said defendant G H a certain three-story brick building upon the lands hereinafter described, and that the said de- fendant agreed to pay plaintiff therefor the sum of ten thousand dollars, in gold coin of the United States, in in- stalments, at specified times, after the commencement of the work [stating them; or, " on completion of specified portions of the work," or, " on the completion of the whole work," as the case may be], and that, under said contract, twenty- five per cent of the whole contract price was made payable thirty-five days after the final completion of said contract, a copy of which is hereto annexed, marked " Exhibit I," and made a part hereof. 3. That before work under said contract was commenced, said contract [or, if a memorandum was filed, state, " a memorandum of said contract," setting forth the said names of all the parties to said contract, a description of tlie prop- erty to be affected thereb3% together with a statement of the general character of the work to be done, the total amount to be paid thereunder, and the amounts of all partial payments, together with the times when such payments were to be due and payable] was filed in the office of the county recorder of said city and county, where said property is situated. [Insert other allegations, as in Form No. 32, paragraphs 3 to 11, inclusive, including prayer and verification.] ^ This form may be adapted for use in Colorado. See preceding form. Text. See "Complaint," §§670 et seq., ante; "Statutory Original Contracts," §§ 269 et seq., ante. 840 mechanics' liens. Form No. 34. Complaint of Lien-holder for Grading or Improving Lot in Incorporated City.^^ [Kerr's Cyc. Code Civ. Proc, § 1191.] [Title of court and cause.] Plaintiff complains of defendant, and alleges : 1. That at all the times herein mentioned defendant G H was and now is the owner of the real property situate in the city and county of San Francisco, state of California, and more particularly described as follows, to wit [description] . 2. That the city and county of San Francisco, herein men- tioned, is an incorporated city under the laws of the state of California. 3. That heretofore, to wit, on the second day of January, 1899, at said city and county of San Francisco, state of Cali- fornia, plaintiff entered into a contract, in writing, with the defendant to grade the said lot [here give terms of contract, and describe the work, so as to bring it within the provisions of section eleven hundred and ninety-one of the Code of Civil Procedure]. 4. That, under said contract, said defendant agreed to pay plaintiff one thousand dollars, in United States gold coin, for said grading. 5. That plaintiff fully performed and completed said grading in accordance with the terms of said contract, on the twentieth day of January, 1899. 6. That plaintiff demanded of said defendant said sum of one thousand dollars, but that said defendant has not paid the same, nor any part thereof. 7. That, within sixty days after the completion of said contract, to wit, on the thirtieth day of January, 1899, plaintiff filed for record with the county recorder of said city and county, his claim of lien [continue as in paragraphs 8-11, Form No. 32] . [Prayer as in Form No. 32.] [Verification.] , Attorney for Plaintiff. " Text. See "Nature of Labor," §§139 et seq., ante. This form may be adapted for use in Alaska, Idalio, Montana, Ne- vada, New Mexico, Oregon, and Washington. FORMS. 841 Form No. 35. Complaint for Foreclosure of Subclaimant's Lien." [Title of court and cause.] Plaintiff complains of defendants, and for cause of action alleges : 1. [Same as paragraph 1, Form No. 32.] 2. That on or about the first day of March, 1898, the de- fendant A B and defendant G H entered into a contract in writing. [Set out contract as in Form No. 32, paragraph 2, if the contract is non-statutor3^ If the agreed contract price was more than one thousand dollars, and the contract was valid, follow paragraph 2, Form No. 33. If the original statutory contract was void, also set forth the fact showing its invalidity.] 3. That said defendant A B completed said building, under the terms of said original contract, on the tenth day of May, 1898 [continue as in paragraph 3, Form No. 32]. 4. That said defendant owner, G H, has paid the said de- fendant contractor the sum of six hundred dollars, under said contract, and that the sum of four hundred dollars still remains due and unpaid, under the terms thereof. [If facts showing the invalidity of the original contract have been pleaded, this allegation is unnecessary.] 5. That on or about the tenth day of March, 1898, plaintiff sold, delivered, and furnished to said original contractor, defendant A B, twenty thousand feet of one-by-four flooring, of the agreed value of four hundred dollars, for and to be used in the construction of said building, and that all of said flooring was actually used in the construction thereof [or, in the case of a subcontractor, set forth the terms of the subcontract, and allege performance]. 6. [If a notice has been served on the owner under the provisions of section eleven hundred and eighty-four of the Code of Civil Procedure, allege facts showing such service, and the amount then due from the owner to the contractor, and the amount thereafter due. If facts showing the in- validity of the original contract have been pleaded, these allegations are unnecessary.] s- Text. Subclaimants: See §§43, 66 et seq.. ante. 842 mechanics' liens. 7. That plaintiff demanded said sum of four hundred dol- lars from said defendants A B and G H, but that they have, and each of them has, neglected to pay the same, or any part thereof. 8. [Insert paragraph 5, Form No. 32.] 9. [Insert paragraph 6, Form No. 32.] 10. [Allege facts showing that the claim of lien was filed within the statutory time. See paragraph 8, Form No. 32.] 11. [Insert paragraphs 9, 10, 11, Form No. 32.] Wherefore plaintiff prays judgment as follows : 1. For personal judgment against said defendant A B [i. e., party personally liable] for said sum of four hundred dollars [continue prayer, as in Form No. 32]. [.Verification.] , Attorney for Plaintiff. Form No. 36. Order of Reference. [Title of cause.] This cause being at issue on the complaint of the plaintiff, and the answers of the defendants herein, on motion of X Y, Esq., of counsel for said plaintiff, and by agreement of all the parties hereto filed with the clerk [or, " and it appearing to the court that the taking of an account is necessary for the information of the court," or as the case may be (Kerr's Cyc. Code Civ. Proc, §§ 638, 639)],— It is ordered, That this action be referred to V W, Esq., an attorney and counselor of this court, who resides in said city and county, and against whom there is no legal objec- tion, as referee to take the proofs of the respective parties hereto, and report the same to the court ; that he also report, for the consideration of this court, a decree founded on the testimony so taken before him, showing the amount, if any, due to the plaintiff from the defendant G H, and also the amounts due to the other defendants, respectively, on the various claims set up by them in their respective answers in this action, the time when their respective demands become liens on the real estate and premises described in plaintiffs' complaint ; and the order of rank or priority to which they are respectively entitled in the payment of said respective FC RMS. 843 claims; also, showing Avhat space of the real estate or land of defendant E F, around the building in said complaint mentioned, is required for the convenient use and occupation thereof; and that he report to this court with all convenient speed. Dated this day of , 1899. (Signed) , Judge of Superior Court. Form No. 37. Notice by Contractor that He Intends to Dis- pute Account. [Arizona Eev. Stats. 1901, § 2900; Wyoming Rev. Stats., § 2877 (mines).] To (owner of the premises hereinafter described). You will please take notice, That the undersigned con- tractor intends to dispute the claim and account heretofore served upon you by for the sum of dollars for ["materials," or, insert' nature of claim], alleged to have been furnished for or done upon the property hereinafter described. The following is a description of the premises referred to : [insert description] . Dated Form No. 38. Findings and Decision.'-'' Foreclosure of lien of owner's material-men, partners, on two houses, prop- erty sold during construction. [Title of court and cause.] This cause having been regularly called for trial before the court (a jury trial having been expressly waived by stipulation of the respective parties made in open court and entered in the minutes), R S appearing as attorney for plain- tiffs, and T U appearing as attorney. for defendant J L G. And the court having heard the proofs of the respective parties and considered the same, and the records and papers in the cause, and the arguments of the respective attornej's thereon, and the cause having been submitted to the court for its decision, the court now finds the following facts: =^ Text. See "Findings," S§ 885 et seq., ante. Arixuna. Form, finding's of fact and conclusions of law, in sub- stance; suit to foreclose miner's lien: See Griffin v. Hurley, 7 Ariz. 399, 65 Pac. Rep. 147. 844 mechanics' liens. Findings of Fact.^* 1. That the plaintiffs, J H and A M, at all the times herein mentioned, were, and now are, copartners, doing business at said city and county, under the firm name and style of H & M. 2. That at all the times said plaintiffs and L L entered into the contracts hereinafter mentioned, and at all the times plaintiffs commenced to furnish, and did furnish, the lumber and materials, as hereinafter stated, one L L was the owner and reputed owner of those certain lots, pieces, or parcels of land situate, lying, and being in said city and county of San Francisco, state of California, and more particularly bounded and described as follows, to wit : [here insert description] . 3. That on December 7, 1906, said L L divided said lands into two equal parcels, and commenced the erection of a certain building or structure, and did erect a certain building or structure, upon each of said parcels, and the following is a description of said parcels of land, owned, as aforesaid, by said L L, including the land, and the same is the land, required for the convenient use and occupation of said re- spective buildings or structures : [insert description of each parcel separately] . 4. That, at the time of the commencement of this action, said defendant J L G was the owner of said lots and pieces of land and the improvements thereon; and that on the twentieth day of March, 1907, the said L L conveyed said pieces and parcels of land and the improvements thereon to said defendant J L G, and said defendant ever since has been and now is the owner thereof. 5. That on the seventh day of December, 1906, the plain- tiffs, J H and A M (copartners doing business under the firm name and style of H & M), and said L L, entered into a contract, whereby said L L bought from said copartners, H & M, and said copartners, H & M, then furnished and de- livered to said L L sixty-six thousand seven hundred and fifty shingles, and it was then and there agreed that as many of said shingles as would be necessary'- were to be furnished " Text. See " Questions of Law and Fact," §§ 827, 828, ante. FORMS. 845 for use in the construction of, and were to be used in about equal quantities on, each of the two buildings or structures hereinbefore described, and of said sixty-six thousand seven hundred and fifty shingles, thirty-eight thousand and fifty- four shingles, or nineteen thousand and tAventy-seven on each of said buildings or structures, were actually used in, and were necessary for the construction of, said buildings or structures; and that the reasonable value of said shingles, per thousand, is, and was at said time, the sum of one dollar and sixty cents; that is to say, that said shingles, of the reasonable value of thirty dollars and forty-four cents, were used on each of said buildings or structures, as aforesaid, or of the total reasonable value of sixty dollars and eightj^- eight cents on the whole of the premises above described ; and said L L agreed to pay for said shingles sixty days after the said delivery thereof; and that the time of pa^-ment thereof had passed. 6. That plaintiffs fully and duly performed all the con- ditions on their part in the said contract, but that said L L has not paid said sum, nor any part thereof, and that the whole thereof, to wit, said sum of sixty dollars and eighty- eight cents, is now due and owing, and since the sale thereof has been due and owing, from said L L, over and above all just credits and offsets ; and that no part of said sum, or of any moneys to be paid to plaintiffs under said contract, has been paid. 7. That on December 28, 1893, the plaintiffs, J L and A :\I (copartners, doing business under the firm name and style of II & M), and said L L, entered into a contract, whereby said L L bought from said copartners, 11 & M, and said H & M then sold, furnished, and delivered to said L L, twenty thousand feet of one-by-four flooring, and it was agreed, at the time of making said contract, that as much of said twenty thousand feet of said flooring as Avould be necessary in the construction of said buildings was to be furnished and used in said buildings or structures above described; and said L L agreed to pay plaintiffs for the same at the end of sixty days after said delivery; that of said twenty thousand feet of flooring, thirteen thousand five 846 MECHANICS' LIENS. hundred feet, or six thousand seven hundred and fifty feet on each of said buiklings, were actually used in the con- struction thereof, and were necessary for the construction thereof, and that the reasonable value of said flooring per thousand feet, at said time, was the sum of twenty dollars ; that is to say, that flooring, as aforesaid, of the reasonable value of one hundred and thirty-five dollars was used on each of said buildings or structures, as aforesaid, or of the total reasonable value of two hundred and seventy dollars on the whole of the premises above described; and that the time for the payment of said sum has passed. 8. That plaintiffs fully and duly performed all the condi- tions on their part on the said contract; but that the said L L has not paid said sum, nor any of said sums, nor any part thereof, and that the whole thereof, to wit, the sum of two hundred and seventy dollars, is now due and owing from said L L, over and above all just credits and offsets, and that no part of said sums, nor any moneys to be paid to plaintiffs under said contract, has been paid. I Here insert other findings, similar to 4 to 8, for other material sold and delivered.] 9. That all the lumber and shingles herein stated to have been sold and delivered by plaintiffs to said L L were de- livered to said L L on the dates on which the same are herein respectively stated to have been sold to said L L. 10. That no part of the interest on any of the moneys herein mentioned has been paid. 11. That said buildings and structures were, and each of them was, completed and finished by said L L on the thirtieth day of April, 1907. 12. That thereafter, and within thirty days next after the completion of said buildings and structures, and each of them, to wit, on the twenty-eighth day of May, 1907, the plaintiffs, J H and A M, as copartners, doing business as aforesaid under the firm name and style of H & M, filed for record and recorded with the county recorder of the city and county of San Francisco, state of California, that being the county wherein said land was situated, as aforesaid, their claim and notice of lien in writing, containing a statement FORMS. 847 of their demand, and the amount due them on each of said buildings, as hereinbefore set forth, for materials furnished for and actually used in the construction of each of said buildings, at the instance of said L L, as aforesaid, after de- ducting all just credits and offsets, and containing in said claim of lien the name of the owner and reputed owner of said premises at the time of furnishing and use of said materials, as aforesaid, to wit, L L, who was then the owner and reputed owner of said premises ; and containing also the name of the reputed owner at the time of filing said lien for record, as aforesaid, to wit, J L Gr, the defendant, and that said J L G was then the reputed owner of said premises ; and containing also the name of the person to whom said mate- rials were furnished, to wit, L L ; and that said claim of lien also contained a statement of the terms, time given, and conditions of each of said contracts, and they were the same as hereinbefore set forth ; and that said claim of lien also con- tained a description of the property to be charged with said lien, sufficient for identification, and that said description was the same as the description first herein set forth ; and that said claim of lien was verified on behalf of said firm, at said city and county, by the oath of said A M, one of said plain- tiffs, and was subscribed and sworn to before M B, a notary public in and for said city and county of San Francisco, who then certified to said oath, under his hand and seal of office ; and that said oath was attached to said claim of lien and filed and recorded therewith ; and thereafter said claim of lien and oath were recorded by the county recorder of said city and county, in the office of said recorder, in a book kept by him for that purpose, in liber 58 of liens, at page 62 ; and that ninety days had not elapsed since said claim of lien was filed for record, as aforesaid, before the commencement of this action ; and that said claim of lien was duly recorded and was in due form as required by law. 13. That plaintiffs have paid as necessary expenses for verifying said claim of lien the sum of fift.y cents, and for filing and recording the same the sum of five dollars and fifty cents, or a total of six dollars. 848 MECHANICS LIENS. 14. [Wliere attorneys' fees are properly allowable under the statute, insert:] That the sum of one hundred dollars is a reasonable attorne.y's fee to be allowed to plaintiffs in this action for legal services in the superior court; and that no part of any of said sums has been paid. 15. That the claim or interest of defendant J L Gr in or to said premises, and every part thereof, is subject to and subse- quent to the lien and claim of plaintiffs, as aforesaid. 16. That the allegations in paragraphs 1, 3, 4, 5, 8, 9, 10, and 12 of the first count, second count, third count, fourth count, and fifth count of plaintiffs' second amended com- plaint, as amended, are true. 17. That a notice of the pendency of this action was duly filed in the office of the recorder of said city and county on the day of [date of commencement of this action]. Conclusions of Law.^" And as conclusions of law, from the foregoing facts, the court now hereby finds and decides : 1. That there is due and owing to plaintiffs, as such co- partners, from said L L, the reasonable value of said lumber and materials sold and delivered to him, as aforesaid. 2. That plaintiffs, J II and A M, as copartners under the firm name and style of H & M, have a lien upon said build- ings or structures, and the respective pieces of land upon which they and each of them are situate, as aforesaid, for the sums found due upon them as aforesaid, to wit, for the sum of sixty dollars and eighty-eight cents on the first count of said second amended complaint, as amended, on the first contract herein set forth; and for the further sum of two hundred and seventy dollars on the second count or cause of action set forth in said second amended complaint, as amended, upon the second contract set forth herein ; and the further sum of two hundred and fifty dollars on the third count or cause of action set forth in said second amended complaint, as amended, upon the third contract set forth herein; and the further sum of ninety-six dollars and fifty- » Text. See " Questions" of Law and Fact," §§ 827, 82S, ante. FORMS. 849 five cents on the fourth count or cause of action set forth in the said second amended complaint, as amended, upon the fourth contract hereinbefore set forth ; and the further sum of one hundred and sixty-two dollars and forty-seven cents upon the fifth count or cause of action set forth in said amended complaint, as amended, upon the contract lastly hereinbefore set forth ; or a lien for the total sum of eight hundred and thirty-nine dollars and ninety cents, together with interest thereon from the first day of :\lay, 1906, at the rate of seven per centum per annum, together with the costs and expenses of verifying, filing, and record- ing said claim of lien, as aforesaid, to wit, the sum of six dollars [and together with the further sum of one hundred dollars as reasonable attorneys' fees], and together with plaintiffs' costs of suit. 3. That plaintiffs, as such copartners, are entitled to a decree establishing their lien for each and all of said sums upon said parcels of land and the respective buildings thereon; and also decreeing that the whole of each of said respective parcels of land is required for the convenient use and occupation of the respective buildings thereon; and further decreeing that all and singular the premises men- tioned herein, or so much thereof as may be sufficient to raise the amount due to plaintiff, which is herein found to be a lien upon said premises, for principal and interest [at- torneys' fees] , expenses, costs of suit, and the expense of sale, and which may be sold separately without material injury to the parties interested, be sold at public auction, by the sheriff of said city and county; that the said sheriff give public notice of the time and place of such sale, according to the course and practice of the court and the law relative to sales of real estate under execution; and that the plain- tiff, or any of the parties to this suit, may become the purchaser at such sale; and that the said sheriff, after the time allowed by law for redemption, execute a deed to the purchaser or purchasers of said premises on said sale; and further decreeing that said sheriff, out of the proceeds of said sale, retain his fees, disbursements, and commissions on said sale, njid pay to the plaintiffs, or their attorney, out of Mecli. Liens — 54 850 mechanics' liens. said proceeds, his costs in this suit, and the moneys found to be a lien upon said premises hereinabove set forth, with interest thereon from the date of said decree, at the rate of seven per centum per annum, or so much thereof as said proceeds of sale will pay of the same ; and further decreeing that the defendant, and all persons claiming or to claim from or under him, and all persons having or claiming to have acquired any estate or interest in said premises subsequent to the filing of said notice of the pendency of this action with said recorder, and subsequent to the commencement of this suit, be forever barred and foreclosed of and from all equity of redemption and claim in, of, and to said premises, and every part and parcel thereof, from and after the delivery of said sheriff's deed; and further decreeing that the pur- chaser or purchasers of said premises at such sale be let into possession thereof; and that any of the parties to this action who may be in possession of said premises, or any part thereof, and any person who, since the commencement of this action, has come into possession under them, or either of them, deliver possession thereof to such purchaser or pur- chasers, on production of the sheriff's deed for such premises or any part thereof. And judgment is hereby ordered to be entered accord- ingly. Dated this day of April. 1907. (Signed) , Judge of Superior Court. Form No. 39. Decree.^*' Foreclosing Lien of Material-men, Copartners, on Two Buildings, Property Sold during Con- struction. [Title of court and cause.] This cause coming on regularly for trial on the eleventh, twelfth, and thirteenth days of February, A. D. 1907, R S appearing as counsel for plaintiffs, and T U appearing as counsel for defendant J L G, said cause having been duly dismissed as to all the defendants except said defendant =< Text. See " Decree,". §§ 903 et seq.. ante. Colorado. Form, mandatory part of decree foreclosing lien: See Marean v. Stanley, 34 Colo. 91, -il Pac. Kep. 759. 1 FORMS. 851 J L G, a trial bj- jury having been duly and expressly waived by counsel for the respective parties; and it appearing that notice of the pendency of this action was duly filed in the office of the recorder of said city and county, and the court having heard the testimony and proofs, and the evidence being closed, and the court having heard the argument of counsel, the cause was submitted to the court for considera- tion and decision; and after due deliberation thereon, the court delivers its decision and findings in writing, which is filed herein, and orders that judgment be entered in accord- ance therewith. Wherefore, By reason of the law and the findings afore- said, and upon motion of R S. attorney for plaintiffs. — It is ordered, adjudged, and decreed, That there is due and owing to plaintiffs, J II and A M, as copartners, doing business under the firm name and style of II & M, from L L, the reasonable value of lumber and materials sold and de- livered to said L L by said plaintiffs, as shown in said find- ings herein ; and It is further ordered, adjudged, and decreed. That said plaintiffs, J H and A M, as copartners, doing business under the firm name and style of H & M, have a lien upon the buildings and structures, and the respective pieces of land upon which they and each of them are situate, and upon the whole thereof, as in the complaint and hereinafter described, for the sum of sixty dollars and eighty-eight cents on the first count or cause of action set forth in the second amended complaint, as amended; and for the further sum of two hundred and seventy dollars on the second count or cause of action set forth in said second amended complaint, as amended ; and for the further sum of two hundred and fifty dollars on the third count or cause of action set forth in said second amended complaint, as amended; and for the further sum of ninely-six dollars and fifty-five cents on the fourth count or cause of action set forth in said second amended complaint, as amended ; and for the further sum of one hundred and sixty-two dollars and forty-.seven cents upon the fifth count or cause of action set forth in said second amended complaint, as amended; and a lien for each of said 852 MECHANICS LIENS. amomits upon both and each of said parcels of land, and the respective structures thereon; and also a lien for the sum total thereof, to wit, the sum of eight hundred and thirty-nine dollars and ninety cents ($839.90), upon the whole of said premises, together with interest thereon ^" from the first day of May, A. D. 1906, at the rate of seven per centum per annum, together with the further sum of six dol- lars expenses of verifying, filing, and recording plaintiffs' claim of lien herein [together with the further sum of one hundred dollars, reasonable attorneys' fees herein] ,^^ or the sum total of one thousand and sixty-one dollars and thirty- four cents, together with plaintiffs' costs of suit herein, all of which constitute a lien on said premises as aforesaid. And it is further ordered, adjudged, and decreed, That the whole of each of said respective parcels of land is required for the convenient use and occupation of the respective buildings thereon; And it is further ordered, adjudged, and decreed. That all and singular the premises hereinafter described, or so much thereof as may be sufficient to raise the amount due to plaintiffs, which is herein decreed to be a lien upon said premises, for principal and interest, attorneys' fees, expenses and costs of suit, including the expense of sale, and which may be sold separately without material injury to the parties interested, be sold at public auction by the sheriff of said city and county, according to law; that said sheriff give public notice of the time and place of such sale, according to the course and practice of the court and the law relative to sales on real estate under execution; and that the plain- tiffs, or any of the parties to this suit, may become the purchasers at such sale ; and that the said sheriff, after the time allowed by law for redemption, execute a deed to the purchaser, or purchasers, of said premises on said sale; and that said sheriff, out of the proceeds of said sale, retain his fees, disbursements, and commissions on said sale, and pay to the plaintiffs, or their attorney, out of said proceeds, their costs in this suit, and the moneys found to be a lien upon " Text. See " Interest," §§ 907 et seq., ante. •» Text. See " Attorneys' Fees," §§ 935 et seq., ante. FORMS. 853 said premises, as hereinabove decreed, with interest thereon from this date, at the rate of seven per centum per annum, or so much thereof as said proceeds of sale will pay for the same ; and that the defendant, and all persons claiming or to claim from or under him, and all persons having or claiming to have acquired any estate or interest in said premises subse quent to the filing of said notice of the pendency of this action with said recorder, and subsequent to the commence- ment of this suit, be forever barred and foreclosed of and from all equity of redemption and claim in, of, arid to said premises, and every part and parcel thereof, from and after the delivery of said sheriff's deed; and that the purchaser or purchasers of said premises at such sale be let into posses- sion thereof, and that any of the parties to this action who may be in possession of said premises, or any part thereof, and any person who, since the commencement of this action, has come into possession under them, or either of them, deliver possession thereof to such purchaser or purchasers on production of the sheriff's deed for such premises, or any part thereof. The following is a description and particular boundaries of the property authorized to be sold under and by virtue of this decree : All those certain lots, pieces, and parcels of land situate, lying, and being in the said city and county of San Francisco, state of California, and more particularly de- scribed as follows, to wit: [insert separate description of each parcel] . Dated this twenty-second day of April, 1907. (Signed) , Judge of the Superior Court. Form No. 40. Satisfaction of Judgment. [Title of court and cause.] For and in consideration of the sum of one thousand two hundred dollars ($1,200), gold coin of the United States, to me in hand paid by J L G, defendant in the above-entitled action, full satisfaction is hereby acknowledged of a certain judgment rendered in said superior court, in said action, on the twenty-second day of April, 1907, in favor of plaintiffs 854 mechanics' liens. J H and A M, copartners, doing business under the firm name of H & M, and which was adjudged to be a lien upon the property in the complaint in this action described, for the sum of one thousand and sixty dollars, and one hundred and forty dollars, costs and disbursements and percentage; which said judgment was recorded in book 31 of judgments, at page 236 ; and I hereby authorize and direct the clerk of said court to enter satisfaction of record of said judgment in said action. Dated this ninth day of May, 1907. , Attorney for Plaintiff. I INDEX OF FORMS. ACCOUNT. notice by contractor that he intends to dispute, Form No. 37. ACTION. by owner against contractor and lien claimants, 806, note, to foreclose lien. See tit. Foreclosure of lien. AGREEMENT TO BUILD HOUSE ACCORDING TO PLAN ANNEXED. material to be furnished by owner, short form, Form No. 15. ALASKA, claim of lien. by original contractor. on structure, 824, note, verification of, 826, note, for grading lot in incorporated city, 833, note, notice by owner to contractor to defend lien suits, 834, note, notice of non-responsibility by owner of structure, 819, note. ALTERATIONS. in contract, clause for, in building contract, Form No. 7. APPEAL BOND. from decree of foreclosure, in Colorado, 806, note, general, in Colorado, 806, note. APPROVAL OF WORK. clause in building contract for. Form No. 13. ARBITRATION. clausi' for, in building contract, Form No. 9. ARCHITECT. certificate of, as to payments, clause for, in building contract, Form No. 4. statement of contractor made to, as to liens, to obtain payment, Form No. 19. ARIZONA. bond for performance of original contract, conditions of, 818, note, claim of lieu, original contractor, on structure, 824, note. (855^ 856 INDEX OP FORMS. ARIZONA (continued). findings of facts and conclusions of law on foreclosure of Hen, 843, note, notice to owner of furnishing materials or performing labor, 821, note. BOND. See tit. Bond of contractor, appeal. See tit. Appeal bond, for performance of original contract, Form No. 16. BOND OF CONTRACTOR. See tit. Bond, common-law bond, 818, note, for performance of original contract, Form No. 16. BUILDERS' NON-STATUTORY ORIGINAL CONTRACT. See tit. Building contract, short form of, Form No. 15. BUILDING CONTRACT. clause for alterations in contract. Form No. 7. arbitration. Form No. 9. certificate of architect as to payments. Form No. 4. completion of building by owner, upon default of contractor, Form No. 14. construction of drawings and specifications, Form No. 6. damages for delay by contractor. Form No. 10. delay in payments by owner. Form No. 5. delays. Form No. 3. inspection and approval of work, Form No. 13. liability in case of destruction of building before completion. owner and contractor sharing loss, Form No. 11. owner assuming loss, Form No. 12. working-drawings. Form No. 2. written changes in contract, Form No. 8. BUILDINGS, CONTIGUOUS. claim of lien against two or more, owned by same person, general form, Form No. 28. BUILDINGS, TWO OR MORE. decree on foreclosure of lien of material-men, copartners, on prop- erty sold during construction. Form No. 39. findings and decision on foreclosure of lien of material-men, partners, on property sold during construction. Form No. 38. CERTIFICATE OF ARCHITECT. as to payments, clause for, in building contract. Form No. 4. INDEX OP FORMS. 857 CESSATION FROM WORK. notice by owner of, Form No. 21. CHANGES. written, clause for, in building contract, Form No. 8. CITY. incorporated. See tit. Incorporated city. CLAIM OF LIEN. against two contiguous buildings owned by the same person, general form, Form No. 28. contractor's laborer, Form No. 27. contractor's material-man. Form No. 27. for grading lot in incorporated city, Form No. 29. miner's, general form. Form No. 26. on structure, Forms No. 25, 27. original contractor, on structure, Form No. 23. verification of. Form JTo. 24. owner's laborer. Form No. 25. owner's material-man, Form No. 25. subclaimant, of. Form No. 27. subcontractor in the first degree, of, Form No. 27. CLAUSES. in building contract. See tit. Building contract. COLORADO. appeal bond in. from d(H'ree of foreclosure, 806, note. general form, 806, note. claim of lien. for materials, by material-man's contractor, 830, note. notice of intention to file, 836, note, alleging service of, 836, note. original contractor, on structure, 824, note. verification of, 826, note, common-law bond, 817, note, contract to construct ditch, 807, note. contractor's bond making no reference to code provision, 817, note, decree, mandatory part of, foreclosing lien, 850, note, non-statutory original contract, 817, note. notice of non-responsibility by owner, in case of structure, 819, note, notice to owner of furnishing material or performing labor, 821, note, statutory original contract, 807, note. 858 INDEX OF FORMS. COMPLAINT. for foreclosure of lien. of lien-holder for grading or improving lot in incorporated city, Form No. 34. of original contractor's lien, under statutory original contract, Form No. 33. of subclaimant's lien, Form No. 35. original contractor, under non-statutory original contract, Form No. 32. of lien-holder for grading or improving lot in incorporated city, Form No. 34. COMPLETION OF BUILDING. notice by owner of. Form No. 21. COMPLETION OF BUILDING BY OWNER. upon default of contractor, clause for, in building contract, Form No. 14. CONSTRUCTION. of drawings and specifications, clause for, in building contract. Form No. 6. CONTRACT. See tit. Building contract. clause for alterations in, in building contract, Form No. 7. non-statutory original, complaint for foreclosure of lien under, by original contractor. Form No. 32. statutory original, complaint for foreclosure of original contractor's lien under. Form No. 33. to construct ditch, Colorado, 807, note, written changes in, clause for, in building contract. Form No. 8. CONTRACTOR. See tit. Original contractor. action by owner against, and lien claimants, 806, note. clause in building contract by which he shares loss with owner in case of destruction of building before completion, Form No. 11. damages for delay by, clause for, in building contract, Form No. 10. default of, completion of building by owner, clause for, in building contract. Form No. 14. notice by, that he intends to dispute account. Form No. 37. statement of, made to architect or owner as to liens, to obtain pay- ment. Form No. 17. CONTRACTOR'S LABORER. claim of lien by, on structure. Form No. 27. INDEX OF FORMS. 859 CONTRACTOR'S MATERIAL-MAN. claim of lien by, on structure, Form Ko. 27. DAMAGES. for delay by contractor, clause for, in building contract, Form No. 10. DECISION. and findings on foreclosure of lien. Form No. 38. DECISIONS, FINDINGS AND. foreclosure of lien of owner's material-men, partners, on two houses, property sold during construction, Form No. 38. DECREE. foreclosing lien of material-men, copartners, on two buildings, prop- erty sold during construction, Form No. 39. DELAY. clause for, in building contract, Form No. 3. damages for, by contractor, clause for, in building contract. Form No. 10. in payment by owner, clause in contract respecting. Form No. 5. DELAY IN PAYMENTS BY OWNER. clause for, in building contract, Form No. 5. DESTRUCTION OF BUILDING. before completion, clause in building contract respecting, owner and contractor sharing loss. Form No. 11. owner assuming loss, Form No. 12. DITCH. contract to construct, Colorado, 807, note. DRAWINGS AND SPECIFICATIONS. construction of, clause for, in building contract, Form No. 6. FINDINGS AND DECISION. See tit. Decision. foreclosure of lien of owner's material-nieii, partners, on two houses, property sold during construction, Form No. 38. FIRST DEGREE. subcontractor in. See tit. Subcontractor. FORECLOSURE OF LIEN. complaint for, by original contractor. under non statutory original contract, Form No. 32. under statutory original contract, Form No. 33. 860 INDEX OF FORMS. FORECLOSURE OF LIEN (continued). of material-men, copartners, on two buildings, property sold during construction, decree, Form No. 39. of subclaimant, complaint for, Form No. 35. GRADING. See tit. Improvement. claim of lien for, on lot in incorporated city, Form No. 29. complaint of lien-holder for, on lot in incorporated city. Form No. 34. HAWAII. claim of lien, by original contractor, on structure, 824, note, notice to owner of furnishing materials or performing labor, 821, note. IDAHO. bond for performance of original contract. answer in suit on, 807, note. counterclaim set up in action on, 807, note. form of, 818, note, building contract, form of, 807, note, claim of lien. against two contiguous buildings owned by same person, 831, note. original contractor. affidavit that claimant believes same to be just, 826, note, on structure, 824, note, notice of owner to contractor to defend lien suits, 834, note. IMPROVING. See tit. Grading. or grading lot in incorporated city, complaint of lien-holder for, Form No. 34. INCORPORATED CITY. claim of lien for grading lot in, Form No. 29. complaint of lien-holder for grading or improving lot in. Form No. 34. INSPECTION AND APPROVAL OF WORK. clause in building contract for. Form No. 13. JUDGMENT. satisfaction of, Form No. 40. LABORER. contractor's, claim of lien by, on structure. Form No. 27. notice by, to owner of performing labor, Form No. 20. owner's, claim of lien by, on structure, Form No. 25. ■ INDEX OF FORMS. 861 LIABILITY. in case of destruction of building before completion, owner and contractor sharing loss, From No. 11. owner assuming loss, Form No. 12. LIEN. of owner's material-men, partners, on two houses, property sold during construction, findings and decision. Form No. 38. of subclaimant, complaint for foreclosure of. Form No. 35. release of. Form No. 31. LIEN CLAIMANTS. action by owner against, and contractor, 806, note. complaint in action by, for grading or improving lot. Form No. 34. LIEN-HOLDER. for grading or improving lot in incorporated city, complaint to fore- close. Form No. 34. MATERIAL-MAN. See tits. Contractor's material-man; Owner's ma- terial-man. contractor's, claim of lien by, on structure. Form No. 27. owner's, claim of lien by, on structure, Form No. 25. MATERIALS. notice to owner of furnishing. Form No. 20. MINER'S CLAIM OF LIEN. See tit. Claim of lien. general form of. Form No. 26. MINING CLAIM. notice of non-responsibility by owner, Form No. 18. MONTANA. building contract for construction of railway tunnel, 807, note. claim of lien. for grading lot in incorporated city, 833, note. original contractor, just and true account of amount due, 824, note. NEVADA, claim of lien. original contractor. against two contiguous buildings owned by the same person, 831, note, for grading lot in incorporated city, 833, note, on structure, 824, note, verification of, 826, note. 862 INDEX OP FORMS. NEVADA (continued). notice by owner to contractor to defend suits, 834, note, notice of non-responsibility by owner of structure, 819, note. NEW MEXICO, claim of lien. against two contiguous buildings owned by the same person, 831, note, for grading lot in incorporated city, 833, note, miner's claim of, 828, note, original contractor on structure, 824, note, notice by owner to contractor to defend against lien suits, 834, note, notice of non-responsibility by owner of structure, 819, note. NON- STATUTORY ORIGINAL CONTRACT. builder's, short form, Form No. 15. complaint for foreclosure of lien, by original contractor, under, Form No. 32. NOTICE. by contractor that he intends to dispute account, Form No. 37. by owner. See tit. Notice by owner, of non-responsibility by owner. mining claim. Form No. 18. structure. Form No. 17. to owner. See tit. Notice to owner. NOTICE BY OWNER. of cessation from labor. Form No. 21. of completion of building, Form No. 21. of non-responsibility. in case of mining claim. Form No. 18. in case of structure, Form No. 17. to contractor to defend lien suits. Form No. 30. verification of. Form No. 22. NOTICE TO OWNER, of furnishing materials or performing labor, Form No. 20. OKLAHOMA, claim of lien. original contractor. form of statement, 824, note. notice of filing claim to be served on owner, 824, note, on structure, 824, note, notice by owner to contractor to defend lien suits, 834, note, notice of claim to be served on owner, 824, note, notice to owner of furnishing materials or performing labor, 821, note. INDEX OF FORMS. 863 ORDER. of reference, Form No. 36. OREGON. bond for performance of original contract, 818, note, building contract. clause providing, as to delay, 814, note, provisions as to architect's certificate, 811, note. claim of lien. for grading lot in incorporated city, 833, note, original contractor. on mines, 824, note, on structure, 824, note, verification of, 826, note. notice of non-responsibility by owner, in case of structure, 819, note, notice of owner to contractor to defend lien suits, 834, note. ORIGINAL CONTRACT. See tit. Building contract, bond for performance of, t^orm No. 16. ORIGINAL CONTRACTOR. See tit. Contractor. claim of lien by, on structure. Form No. 23. complaint for foreclosure of lien. under non-statutory original contract, Form No. 32. under statutory original contract, Form No. 33. OWNER. clause for delay in payments by, in building contract. Form No. 5. clause in building contract by which he shares with contractor loss, where building destroyed before completion, Form No. 11. clause in contract by which he assumes loss in case of destruction of building before completion, Form No. 12. notice by. See tit. Notice by owner, notice of non-responsibility. See tit. Notice by owner, notice to, of furnishing materials or performing labor, Form No. 20. statement of contractor made to architect or, as to liens, to obtain payment. Form No. 19. OWNER'S LABORER. Sec tit. Claim of lien, claim of lien by, on structure, I'^orni No. 25. OWNER'S MATERIAL-MAN. claim of lien by, on struct urc. Form No. 25. findings and decision in case of partners, on two or more houses, property sold during construction, Form No. 38. 864 INDEX OF FORMS. OWNER'S NOTICE. See tit. Notice by owner. PAYMENT. clause for delay by owner, in building contract, Form No. 5. statement of contractor made to architect or owner as to liens, to obtain, Form No. 19. PERFORMANCE. bond for, of original contract, Form No. 16. REFERENCE. order of. Form No. 36. RELEASE OF LIEN. form of. Form No. 31. SATISFACTION OF JUDGMENT. form of, Form No. 40. SKELETON FORM. of statutory original contract, Form No. 1. SPECIFICATIONS. and drawings, construction of, clause for, in building contract, Form No. 6. STATEMENT OF CONTRACTOR. made to architect or owner as to liens, to obtain payment, Form No. 19. STATUTORY ORIGINAL CONTRACT. skeleton form. Form No. 1. STRUCTURE. notice of non-responsibility by owner. Form No. 17. SUBCLAIMANT. claim of lien by, on structure. Form No. 27. complaint for foreclosure of lien of. Form No. 35. SUBCONTRACTOR. in the first degree, claim of lien by, on structure. Form No. 27. UTAH. claim of lien. original contractor on structure, notice of intention to claim, 824, note, verification of, 826, note. INDEX OF FORMS. 865 UTAH (continued). statutory original contract, payments not in advance of commence- ment of work, 809, note. VERIFICATION. of claim of lien by original contractor, structure. Form JNo. 23. of notice by owner. of cessation from labor. Form No. 21. of completion of building, Form No. 21. to claim of lien by original contractor. Form No. 24. to notice by owner, Form No. 22. WASHINGTON. bond for performance of original contract, 818, note. complaint in suit on, 807, note, building contract. clause for alterations in contract, 812, note. clause for liability in case of destruction of building before com- pletion, 814, note. clause for working-drawjngs, 810, note. clause for written changes in contract, 813, note. clause, provision as to delay by reason of default of owner, 810, note. clause, provision as to extra work, 813, note. clause providing facilities for inspection by owner, 810, note. clause providing for submission of disputes to arbitration, 814, note. clause providing for three days' notice to supply proper mate- rials, 816, note. clause providing for three days' notice to terminate contract, 816, note. substantial compliance with law, 807, note, claim of lien. against two contiguous buildings owned by same person, general form, 831, note. for grading lot in incorporated city, 833, note. original contractor, on structure, 824, note. verification of, 824, note, 826, note, complaint for foreclosure of lien, 836, note, notice by owner to contractor to defend lien suits, 834, note. WORKING-DRAWINGS. clause for, in building contract, Form No. 2. WRITTEN CHANGES. in contract, clause for, in building contract. Form No. 8, Mech. Liens — 55 866 INDEX OP FORMS. WYOMING, claim of lien. original contractor, on structure, 824, note, verification of, 826, note, notice to owner of furnishing materials or performing labor, 821, note, owner's notice to contractor to defend lien suits, 834, note, statutory original contract, 809, note. GENEEAL INDEX. ABANDONMENT. actual, by parties, time of filing claim, 387. agreed, of contract, requires no new consideration, 164. by contractor. error in date of notice of, 382. excess of cost on, liability of surety for, 569. owner's liability, 289, note. setting up in answer, 662, note, confounding with cessation of work, 477, note, consent of owner to, 283. estimating work done, what considered, 290, note, evidence of liability on, 696. excess of cost on, liability of surety for, 569. final payment unavailable for lion claimants when, 290, note, finding as to, 739. in case of mutual, of work, 477. intent to abandon, 289, note. of contract, how owner may limit liability on, 246. of non-statutory original contract, liability of owner, 482. of original contract. as to, generally, 288. justification of abandonment, 290, 291. liability of owner on, 480. lien of subclaimants, limited to what, 290. owner's liability, 289. value of materials furnished and work done, 290. what constitutes, 481, note. where contractor abandons or fails to perform, rights of Bub- claimants, 290. of valid original contract, effect of, on priorities, 464. of void contract. liability of owner, 482. rights of subclaimants in fund, 250, note. Of work. by contractor, time of filing claim, 386, 387. on irrigation-ditch by consent, 290, note, right. of owner to complete on, 476. to materials on, 477. surety finishing building after, 550, note, under a valid contract, 289, note. (867) 868 GENERAL INDEX. ACCEPTANCE. as a waiver, 283. by agent, conclusive, in absence of fraud or mistake, 283, note. delivery of keys to owner and his going into possession, 284, note. of performance as to construction of ditch, 284, note. of performance, evidence of, 696. use, by owner, of a temporary structure, 284, note. ACCORD. agreement to assign claims to owner does not constitute, when, 582. ACCOUNT. auditing of, as provided in contract, 558. itemized, not required in claim of lien, 505, note. " statement " is not an, 333, note. ACCOUNT IN CONTROVERSY. in appeal. See tit. Appeal. ACT OF 1862. as to payment of contract price under, 209. right to create mechanic's lien under, 423. ACTION. attorneys' fees for. See tit. Attorneys' fees. by architect for services, 112, note. consolidated. See tit. Consolidated action. consolidation of, 727. early statutes affecting, 728, note. findings on, 728. on appeal, 727, note. on notice of claim of lien, 523. power to consolidate, inherent, in court of equity, 728, note. relation of legal services to, 775. stipulating as to, for breach of contract, 551, note. that may be united in one complaint, 649. to cancel contract, amount less than jurisdictional, 599, note. to foreclose lien. as to, generally, 10. nature of, 19. trial after, 728. various cases of, enumerated, 727, note. ADDITIONAL SECURITY. See tit. Security, taking, as waiver of lien, 575. ADJOINING HOUSE. referring to, in statutory original contract, as pattern, 227. I GENERAL INDEX, 869 ADMISSION. in answer prevents granting of nonsuit, 735. of ownership in separate answer, 798, note. ADVANCES. See tits. Future advances; Premature payments. mortgages for, for building purposes, 448, note, must be properly made, .56.5, note, to contractor do not release surety when, 564, 565, note. "AFTER DEDUCTING ALL JUST CREDITS AND OFFSETS." as to, generally, 312. not necessary to use expression in statement of demand, 315, note. AGENCY. See tit. Agent, actual and ostensible, 527. allegations in complaint to bind contractor, 631. architect as agent, 533. authority. of agent to create mechanic's lien, 527, note, of person causing improvement to be made, 630. by statutory estoppel, 528. common-law, of the owner, effect of, 61. contract must be made with authorized agent, or owner. 530. note. contractor. and subcontractor not owner's agent for what purposes, 529, note, as agent of owner, 631. as statutory agent of owner, 529, note, is, of owner, when contract void, 531. employment by corporation, 630. evidence of, 534, note. express or ostensible, necessary to charge owner, 494. finding as to, sufficient when, 746. general principles of, 527. how proved, 677. husband as agent, of owner, 528, note, of wife, 527, note, 528, note. in case of mines and mining claims, 630. of contractor. See tit. Contractor, of employer, not presumed, 795. overcoming presumption as to. knowledge. as to, generally, 678. of lack of agency, 679. that employer incurred indebtedness on his own account. 679. proof of, of owner, 680. 870 GENERAL INDEX. AGENCY (continued). person in possession as agent of owner. as to, generally, 531. before amendment of 1907, 533. mechanic's lien on landlord's interest created by tenant, 532, note. person working mine, 532. purchaser in possession as agent of grantee, 532, note, personal liability of agent, 536. presumption of. as to, generally, 677. as to how raised, 534. person claiming to be agent, 534. principal bound by notice to agent, 536. purchaser implied agent of grantee, 532, note. purely a statutory one, 530, note, purpose of provision as to, 528. special statutory provision, 677. • statutory. in creation of mechanic's lien, 416. provisions as to, in creating mechanic's lien, 530. undue extension of rules of common-law agency, 535. to receive notice of claim of subclaimants, 536. undue extension to statutory agency of rules of common-law agency, 535. variance between pleading and proof as to, material, 721. where foreign corporation owns mines, 678. wife as agent of husband, 527, note. AGENT. See tit. Agency. architect as, 533. authority of. See tit. Authority. constructive, employment by, 680. contract must be made with, or with owner, 530, note. either actual or statutory, 531, note, notice to, principal bound by, 536. person claiming to be, and acting on land as, 534. personal liability of, 536. principal bound by notice to, 536. AGREED PRICE. averred in complaint, evidence showing no agreed price, variance fatal, 735. pleading, variance in proof, material, 720. subclaimants to allege, in complaint to foreclose lien when, 627. variance as to, material, 714. AGREED STATEMENT. not controlling on appeal, 792, note. GENERAL INDEX. 871 AGREEMENT. See tit. Contract. aflfecting time of filing claim of lien, 388. composition. See tit. Composition agreement, does not constitute an accord when, 582. pro rata amount left blank, effect of, 581. to arbitrate. See tit. Arbitration agreement, to assign claims to owner, 581. where owner does not seek compromise, 582. AGRICULTURAL PATENT. land held under, not within statute, 146. ALASKA. construction of mechanic's-lien statutes in, 25, note, 28, note, mechanic's-lien law of, 5, 9. ALTERATION. See tit. Contract. as to, generally, 193, note. acceptance by owner of performance of contract as modified, 262. and repair. Sec tit. Alteration and repair, arbitration to determine value of work on, 195. architect to compute value of, 184, note, by oral agreement, 193, note. by written order, 194, note, distinction between, and. " erection," 122. " repair," 121. in contracts affecting sureties, 258, note, in work by order of architect, 557, note. of contract. by architect, 264. conspiracy, 206. * how evidenced, 261. of original contract, effect, 258. period of, in work on building, 379, note, subsequent agreement, 261, note. time of performance of non-statutorj-^ contract enlarged, 261, note, verbal alterations of original contract, 194. void contract, under, 195. ALTERATION AND REPAIR. See tit. Alteration. claim of lien must specifically designate the character of work, 92. extent of, as affecting lien, 93. ALTERATION OF INSTRUMENT. See tits. Alteration; Contract. priorities in case of. See tit. Priorities, as to, generally, 460. 872 GENERAL INDEX. AMBIGUITY. See tit. Contract, aud uncertainty, demurrer for, 654. where husband and wife parties to contract, demurrer, 6.54, note. AMENDED COMPLAINT. See tit. Complaint. AMENDMENT. See tits. Answer; Complaint; Pleading. of claim of lien, 368. of 1907. as to rule before, 400. effect of, 401. relation of, to time of commencing action, 727. AMOUNT CLAIMED. See tit. Claim of lien. less than jurisdictional limit, effect on commencing action to fore- close lien, 598. AMOUNT DUE. immaterial issue when, 741. tender as admission of, 725, note. AMOUNT PAID. variance as to, material. See tit. Variance, as to, generally, 716. " AND." in statute regarding street-work, effect of, 95. ANOTHER ACTION PENDING, immaterial issue when, 741. ANSWER. See tit. Pleading and procedure. as to, generally, 656. abandonment by contractor must be set out in, 662. admission in. of amount due conclusive, 656. of contract in, nonsuit not granted, 735. alleging. credit given by laborer in mine, 660, note. release from liability, 660, note, amendment to, 726, note, counterclaim may be set up in, 664. cross-complaint in. See tit. Cross-complaint, damages. for delay may be set. up in, 666. sustained by owner may be set off in,- 665. deficiencies of complaint cured by, 660. I GENERAL INDEX. 873 ANSWER (continued), denial. for want of information, 659. of conclusion of law insufficient, 657. \j on information and bolief, where matters not presumably within knowledge of defendant, 658, note, denial on information and belief. V as to, generally, 658. •^ as to recorded claim of lien, 659. ^ / denial of want of information, 659, note. V , evasive denials, 660. exceptions to rule, 659. future repairs. against assignee, 666. as to setting up in, 665. where there is a mere novation, 666. general denial in. as to, generally, 657. breach of original contract cannot be shown under, 657. improper allegations in, stricken out, 661, note. judgment and costs in action against agent may be set up in, 664. mechanic's lien may be set up by way of, 663. must be positive, 658, note, negative pregnant, as to, generally, 657. in admissions. as to amount due, 658. as to value of labor, 658. in alleging assignment, 657. neglect of contractor to supply materials, etc., to be set out in, 661. orders paid may be set up in, 665. payments. V^ made by owner to be set out in, 662. ■'^ may be set up in, 664. plans and specifications referred to in contract, but not filed, not available as defense in, 663. refusal of trial court to permit amendment of, 799, note, setting off liens, costs, and expenses, 665. note, setting up action to foreclose prior mortgage, 661, note, special defenses to be set up in, 660. statutory original contract void, not available as defense in, 663. striking out. allegation of tender in, 661, note, improper allegations in, 661, note, supplemental. See tit. Supplemental answer, void contract not available as defense in, 663. g74 GENERAL INDEX. APPEAL. as to, generally, 784. account in controversy, 786, note. agreed statement not controlling court on, 792, note. attorneys' fees on. See tit. Attorneys' fees. bond for costs. as to, generally, 790. lien subordinate to lien foreclosed, 790. staying judgment, 790. both parties attacking estimate of superintendent, 799, note, change of theory as to base of right of lien, 784, note, consolidated case. as to, generally, 802. hearing of, 802. contractor not joining in, 786, note. costs on. See tit. Costs. defect in complaint cannot be alleged for first time upon, 651, note. delivery-slips as books of original entry, 799, note. dismissal as to one defendant not reviewed when, 792, note, error. See tit. Error. exclusion of evidence, 784. how reviewed, 784. writ of. as to, generally, 785. on foreclosing lien on land and fund, 785. findings. See tit. Findings. that materials of specified value were furnished, 792, note, harmless error. as to, generally, 798. as to work not done on property, 799, note. objecting to form of judgment against contractor not appealing, 799. owner objecting to non-joinder of contractor, 799. sufficiency of claim of lien, 800. Insufficient record on. as to, generally, 791. compliance with specifications, 791. void contract, 791. modification of judgment on, enforcing lien, 802, note. notice of. contents of, 786. contractor. adverse party, default, 788. not adverse party, 787. on default, 788. on personal judgment against contractor, 787. service waived by stipulation, 790. I GENERAL INDEX. 875 APPEAL. Notice of (continued). subsequent mortgagee injuriously affected, 789. upon whom served, 787. waiver of service of, by stipulation, 790. who need not be served with. as to, generally, 790. contractor not appealing and no judgment against, 790. objecting for first time on, as to, generally, 800. as to defects in complaint, 800, note, as to nature and extent of interest in land, 801, note, constitutionality of provision of statute as to sale and removal of improvements, 800. contract not entirely filed, 800. description of land, 801. findings of court on nonsuit, 800, note, objection. to complaint of subclaimant on ground that it states merely con- clusions of law, 800, note, to jurisdiction of coiirt, as to venue, 800, note, omission to request amendment to pleadings after demurrer, 801, note, uncertainty of interest in property, 801. on personal judgment against wife, 792, note, order on. See tit. Order. as to, generally, 802. attorneys' fees. See tit. Attorneys' fees, new trial. See tit. New trial, as to, generally, 802. conflict of evidence as to street-work, 803. sustained when, 802. parties to. as to, generally, 785. definition of adverse party, 785. on death of one personally liable, 786. on sale from judgment denying lien, 786. possible error in admitting expert testimony, 799, note, presumptions on. See tit. Presumption, as to, generally, 792. as to reasonableness of attorneys' fees, 793. as to work and amount found due, 794. extent of land, 793. in favor of findings on, 736, note, land necessary for occupation, 793. lien on real property, 792. support of findings, as to, generally, 793. 876 GENERAL INDEX. APPEAL. Presumptions on. Support of findings (continued), defense not pleaded, 794. reputed owner, 793. what not presumed on. as to, generally, 794. agency of employer, 794. service of notice on owner, 794. refusal of trial court to permit amendment to answer, 799, note, separate judgments on foreclosure of mortgage and mechanics' liens, apportionment of costs, 784, note, statutory provisions as to, 784. stay bond, as to, generally, 791. stipulation waiving service of notice of, 790. taken from judgment foreclosing lien, 786, note, transcript failing to show motion or order, 792, note, what cannot be considered upon, from order denying new trial, 795, note, what not involved, appeal by owner, 795. former order denying new trial, 795, note, validity of deficiency judgment against contractor, 795. where there is no exception to the finding, 799, note. APPEARANCE. of infants, 600, note. APPLICATION. of payment for benefit of surety, 557, note. APPLICATION OF PAYMENT. See tit. Pajrment. APPROVAL. assignability of estimates. See tit. Estimate. " APPURTENANCES." lien upon well and, 395, note. ARBITRATION. See tits. Arbitration agreement; Composition agree- ment, as condition precedent to action to foreclose mechanic's lien, 620, note, award. See tit. Award, condition precedent to recovery when, 195. demands made by contractor which should be submitted to, under the contract, 696, note, submission to. revocable, 183. without protest, 182, note. I GENERAL INDEX. 877 ARBITRATION AGREEMENT. See tit. Arbitration, alterations, value to be computed by architect, 184, note. California rule, 180. distinction between two classes of cases, 182. good faith and open dealings of arbitrators, 183. meeting before presenting claim to, 184, note, not final, 181. procuring award, condition precedent, 181. set aside arbitration, court will, for extra work when, 184, note. ARBITRATORS. See tit. Arbitration agreement, good faith and open dealings of, 183. ARCHITECTS. See tits. Certificate of architect; Laborer; Plans and specifications, action for services of, 112, note. adoption of unreasonable rules by board of, effect of, 107. agent of owner. 111. alteration. in work by order of, 557, note. value of, to be computed by, 184, note. as agent of owner, 533. as subcontractor. 111. averments of complaint by, sufficient when, 613, note, cannot be compelled to give certificate, 188, note, certificate of. See tit. Certificate of architect. effect on time of filing claim, 386. waiving, 520. conditions precedent to lien, construction of. 111. contract. for drawing plans and specifications for public building, 109, note. for plans and specifications, 169, note, 171, note. of unlicensed, 108. definition of, 102, note, 108. dishonesty of, 188, note, dismissal of, effect on certificate, 189. fraud of. See tit. Fraud. as to, generally, 188, note, lien for drawing plans and specifications and superintending con- struction, 120, note, limitation of action by, against school board, 593, note, municipal ordinances regulating, 107. not general agent of owner. 111, note, obligations of, 112. oral declarations after giving certificate, 683, note, power of. as to, generally, 110. to alter contract, 264. 878 GENERAL INDEX. ARCHITECTS (continued). proof that certificate of, was given without sufficient investigation, 684, note, provision that material shall be satisfactory to, waiver, 196. relation between, and owner, 111. relations of, 107. repudiation. of part breach of entire contract, 109, note. of part of contract by owner, rights of architect, 590, note, rights of. as to, generally, 109. to lien, 110. statutory provisions as to, 108. ARIZONA. meehanie's-lien law of, 5. ARTISAN. See tit. Laborer. definition of, 102, note. ASSIGNABILITY. of estimates. See tit. Estimate. ASSIGNED LIENS. including several, in statement of demand, 315, note. ASSIGNEE. See tit. Assignment. after lien is perfected, 539. future repairs may be set up against, in foreclosure of lien, when, 666. general rights of, 542. of mechanic's lien, 588, note, of note of contractor filing claim with assignee in insolvency, 545, note, of owner's laborer, 538, note, owner as, of claim, 539, note, title of, of security, right to enforce, 541. ASSIGNMENT. See tit. Assignee. after lien perfected, 539. conditional acceptance, effect of, 544. construction of, " subject to conditions of original contract," 538, note, defenses arising subsequent to, 544. effective when, 540. note. failure to give notice of, 538, note. ■ GENERAL INDEX. 879 ASSIGNMENT (continued). formalities of. as to, generally, 539. copartnership claim, 540. in case of insolvency and bankruptcy, 545. notice of. as to, generally, 542. question of fact, 542. to one who does not understand the English language, 542. of debt. from partnership to one partner, 539. necessary, 541. of inchoate right of lien, 538. of liens, necessity for writing, 540, note, of mechanic's lien, 538, note, of moneys to become due under lien, 21, note, of note of contractor filing claim with assignee in bankruptcy, 545, note. of prior mechanic's lien to subsequent mortgage, 538, note, of public contract, 545, note. parol evidence to show object and purpose of, 675. pleading, of claim, 538. premature payments, 546. reassignment to claimant of assigned claim, 538, note, release prior to assignment, 543. rights of assignee under. as to, generally, 542. cutting off rights of his claimants, 543. latent equities, 543. separate, of debt and security, 541. splitting demands not allowed, 541. title to security, and right to enforce, 541. to surety on contractor's bond, 545. unaccepted order does not amount to an, 540. ASSIGNOR OF CONTRACT. release of, 580, note. ATTACHMENT. See tit. Remedies, as to, generally, 591. for damages claimed for brcJich of contract in failure to deliver, 591, note, for materials furnished, 548. garnishment. See tit. Garnishment. after suit commenced, 591. before suit, 591. of public moneys, 591, note, materials exempt from, 592. 880 GENERAL INDEX. ATTACK ON FINDINGS. when not allowed, 748. ATTORNEYS' FEES. See tit. Costs, as to, generally, 770. agreement as to, 775. allowance of. not disturbed on appeal, 803, note. without allegation in finding, 803, note, amended complaint, 726, note, amendment. See tit. Amendment. affecting injunction, 726, note. as to description of property, 727. as to express or implied contract, 726. by striking out allegation as to contract, 726. relation of, to time of commencing action, 727. to answer, 726, note. to change to quantum meruit, 726, note. to complaint. See tit. Complaint. alleging changes made in conformity with contract, 726, note. in action on express contract, 726, note. to conform to proof, 726, note, application for, in supreme court, 776. are allowed upon the foreclosure of mechanic's and laborer's lieu, 771, note, assessment in costs error, 770, note, based on items contested, 774, note, bill of exceptions showing value of, 803, note. California provision as to, constitutionality of, 47. Colorado doctrine, 48. complaint in action on express contract. as to, generally, 726. amendment to quantum meruit, 726. consolidation of actions. See tit. Actions. as to attorneys' fees in each action, 727, note. becomes single action, 727, note. cases of consolidation of actions, various, 727, note. court making separate findings in cases consolidated, effect, 728, note. findings on. See tit. Findings, as to, generally, 728. on appeal. See tit. Appeal, as to, generally, 727, note. power of, inherent in court of equity, 728, note. right of claimants against one another, 728. trial after. See tit. Trial, as to, generally, 728. where owner party to only some of consolidated actions, 728, note. GENERAL INDEX. 881 ATTORNEYS' FEES (continued). contractor not entitled to, when, 722, note. costs, assessment in, error, 770, note. court should not fix, at unreasonably small or insufficient amount, 773, note, deposit of money in court. See tit. Deposit, as to, generally, 729. payment of balance of fund, 729. discretion of lower court as to, 776, note, error to assess, in costs, 770, note. evidence of, not necessary, 673. fixing, on appeal, 776. for preparing claim of lien, 775. in Idaho, held valid, 48, note. in Montana, held invalid, 48, note, in New Mexico, held valid, 48, note. in Oregon, held valid, 48, note. in Washington, held valid, 48, note, intervention. See tit. Intervention. eflfect of, 729. right of, 730. jury trial. See tit. Trial by jury, as to, generally, 731. verdict. See tit. Verdict. setting aside, 732. liability for, of surety on contractor's bond, 488, note, lower court fixing, in supreme court, 776. making new cause of action, 726, note, measure of, 773. nature of, and their relation to costs, 772. new trial. See tit. New trial. as to, generally, 732. no allegation as to, necessary. in action for damages for breach, 647. in action to foreclose mechanic's lien, 647, note, nonsuit. See tit. Nonsuit, for excessive claim, 734. for failure to file claim, 734. not granted for. answer admits making of contract, 735. disagreement between allegations and proof when, 735. variance as to agreed price when, 735. not granted when. as to, generally, 733. in case of void contract, 733. where statute of limitations pleaded, 734. sustained upon appeal when, 733. Mech. Liens — 56 882 GENERAL INDEX. ATTORNEYS' FEES (continued). not allowod, except on foreclosure of liens on property, 771. not excessive when, 773, note. on appeal, 803. paid out, recoverable as damages, 647, note. plaintiff cannot recover, out of the proceeds when, 722, note. presumption as to reasonableness of, 793, note. properly allowed and reasonable when, 773, note. reasonable, stipulated at trial, evidence, 725, note. reduction of, 774, note. relation of legal services to action, 775. review by supreme "court of abuse in allowing, 803, note. stipulated at trial, 725, note. stipulation not excluding, 776. surety on contractor's bond, liability for, 488, note. unconstitutionality of provision, 770. Washington doctrine, 48. when owner not liable for, 777. AUDITING ACCOUNTS. See tit. Account. AUDITOR'S CERTIFICATE. See tit. Certificate. mere filing indorsement of date and page of record proves nothing, 687, note, of recordation of notice proves what, 687, note. AUTHORITY. See tit. Agent. knowledge of lack of, of employer as waiver of lien, 575. to make improvements, effect of knowledge of claimant of lack of, 443. AWARD. See tit. Arbitration. interest properly allowed on amount of, 754, note. BANKRUPTCY. assignment of claim in case of, 545. building in course of erection by bankrupt, 546, note. construction given by state courts as to preferential statutory claims, 546, note, contractor's trustee in, 546, note, liens mentioned in act of, 546, note. BANKRUPTCY PROCEEDINGS. stay on, 725, note. BEAR MEAT. furnished to laborers in a mine, not subject of lien, 89. GENERAL INDEX. 883 BENEFITS. evidence of, conferred, 696. BILLS. provision for payment of, in statutory original contract, sufficiency of, 211. BLACKSMITH. sharpening tools used in mining, entitled to mechanic's lien, 91, note. BLANK. in agreement to assign claims to owner, as to effect of, 581. BOARD OF EDUCATION. liability for breach of contract, 492. BOARD OF TRUSTEES. estimate by members of, 185, note. BOARDING-HOUSE. on mining claim, included in mechanic's lien when, 139, 409. BOARDING-HOUSE KEEPER. furnishing board to men working on job entitled to mechanic's lien, 91, note. BONA FIDE PURCHASERS. name to be given in claim of lien, 349. BOND. action for damages for failure to give, 589, note. and contract executed at the same time, construed as one instru- ment, 167, note. conflict between, as exhibit and complaint, 655. for costs, 790. given to secure performance of building contract, 168, note. of contractor. See tit. Bond of contractor. parol evidence admissible to show supposed principal a surety, 675, note. plaintiff suing in behalf of claimant on, 604, note. receiver as party defendant in action to forecloso mechanic's lien, 605, note. staj'ing judgment, 790. variance between pleading and proof as to signature by principals, immaterial, 723. 884 GENERAL INDEX. BOND OF CONTRACTOR. See tit. Bond, act requiring, held unconstitutional, 47. action for failure to take, 218, note. action on. complaint in, 219, note. damages for failure to file, 219, note. limitation of, 219, note. subclaimants entitled to enforce, to what extent, 219, note. assignment to surety on, .545. California decisions regarding, 219, 220. complaint in action on, 219, note. construction of. as to, generally, 558. " claims accruing," 559. money advanced not " materials," within obligation, 559. performing obligation of void contract, 559. effect of giving, common-law obligation, 218. failure to file, damages for, 219, note. in California, provision for, unconstitutional, 217. in Colorado, valid, 217, note, in Hawaii, not necessary, 218, note. in Washington, valid, 218, note, 220. insufiicient, 219, note. is collateral obligation, enforceable by subclaimants to what extent, 219, note, limitation of action on, 219, note, 594, note. on public school house, 219, note. on public work. See tit. Public work, statutory requirements of. as to, generally, 551. application of provision, 552. contract void, bond valid, 553. formalities, 552. liability on, 554. when enforceable as a common-law obligation, 554. surety's liability. See tit. Surety. for attorneys' fees, etc., 488, note, void, effect, 552. BOOK-KEEPER. of mine, not entitled to mechanic's lien, 91, note. BOOKS OF ACCOUNT. evidence to show matters in which kept, 674. BOOKS OF ORIGINAL ENTRY. admission of delivery-slips as, 799, note. GENERAL INDEX. 885 BREACH OF AGREEMENT. See tit. Breach of contract. BREACH OF CONTRACT. See tit. Contract, burden of proof to show, 68L by employer, rights of contractor, 66. by nonfeasance and malfeasance of contractor, 249. damages for, findings as to, 740. liability of owner on, 480. owner may waive, 551, note, stipulating as to action for, 551, note. BUILDER. See tit. Laborer, definition of, 102, note, not original contractor when, 61. BUILDING. as material, 92. character of, in determining fixtures, 148. completion of. See tit. Completion of building. description of whole or part of, in action to foreclose mechanic's lien, 646. destruction of. See tit. Destruction of building. by fire, effect on lien, 397. destruction of, by fire, before completion, effect on lien, 269. distinct from the land, 319, note. false representation as to ownership, effect on lien, 407. group of buildings, materials for, lien, 404, note. lien upon. alone, 407. distinct from land when, 151, note, non-completion of, evidence of, 686. of determining whether contract valid, 390. on separate lots, liens on, 299, note, 300. period of alteration or other work on construction of, 379, note, presumed to be attached to land upon which erected, 325, note, removed from land, effect on lien, 397. separate. on non-contiguous lots, right to lien, 300, note. on separate lots erected under separate contracts, right to lien, 300, note, severance from freehold changes character of property, 152. sidewalk part of, under certain circumstances, 147. BUILDING CONTRACT. See tit. Contract, as to, generally, 155. common clauses peculiar to. See tit. Common clauses. 886 GENERAL INDEX. BUILDING CONTRACT (continued). consent and meeting of minds. false reference to plans and specifications, 163, fraud. See tit. Fraud. as to effect on, 162. in street improvement, inchoate contract, 161. indefiniteness of contract, 163. mistake, 162. necessity of, 162. construction of. See " Instances of construction," this title, ambiguity or uncertainty in, 168. contract and bond executed at same time, 167, note, dependent and independent promises, 172. entire and severable contracts, 169. explained by circumstances, 173. in general, 155, note, 167. interpreted most strongly against party bound, 169, note, joint and several contracts, 172. jury to draw inference from facts, 175, note. of architect's contract, 169, note. one contract for four buildings, 170, note, particular clauses, general intent, 169. reasonable stipulations, when implied, 174. several contracts relating to same matter, 168. time of performance unspecified, 174. to bore two thousand feet of well-holes, 171. to grade railroad, 172. to timber a tunnel in workmanlike manner, 171. warranty. as to, generally, 175. of design or plan under express specifications, 175. where bond is given to secure performance, 168, note, where law defines what is a reasonable time, 175, note, where monthly accounts are rendered, 169, note, where no time fixed for payment, 170, note, where public body contracts to provide materials, 174. contract, as to, generally, 164. agreed abandonment of contract, 164. for drawing plans and specifications, 156, note, made with reference to statute, 161. definition. of " building contract," 157. of " contract," 156. of " contract for street- work," 166. of " non-statutory original contract." 1G6. GENERAL INDEX. 887 BUILDING CONTRACT. Definition (continued). of original contract. as to, generally, 165. as to contractor's contract, 165. as to owner, laborer, and material-man, 165. of " statutory original contract," 166. of subcontract, 166. effect of sale of premises on mechanic's lien under, 415, note, entry in minutes of school board, 155, note, erasure in. See tit. Alteration. as to, generally, 163, note, essentials of, 156. extinction of contract. See tit. Extinction of contract, for public works, 155, note, general principles, 155. Instances of construction of contract. as to, generally, 176. under contract containing clause for deviations, 179. water company contracting to supply water, 178. where original contractor furnishing materials and work, as to knowledge of defects, 178. written contract to furnish machinery, 177. mechanic's lien where work to be performed in another state, 155, note, non-statutory original contract. See tit. Non-statutory original con- tract, of penalty, 176. of statutory original contracts, 176. " original contract," term not used in statute, 156. parties to. competency of, 157. corporations, 158. effect of contract on interests of, 161. executor. as to, generally, 158. can make no contract as to what, 158. making unauthorized original contract, effect, 158. for street-work, 161. guardian of minor, 157. implied contract, 159. not necessary that person contracting for building shall be, 159. owner, contract not binding on, lien fails, 159. penalty in, 176. ratification, 164. statutory original contract. See tit. Statutory original contract. 888 GENERAL INDEX. BURDEN OF PROOF. See tit. Evidence, as to, generally, 680. as to breach of agreement, 681. as to cessation from work, 682. as to priorities, 681. as to time of filing claim, 682. as to validity of claims of sublienors, 681. on claimant, 680, note, 681, note. CALENDAR. preference on, Oregon practice, 725, note. CALIFORNIA STATUTE. classes of liens provided by, 3. classification of liens under. another classification, II. as to the contractual relation, 10. as to the object or thing to which lien attaches, 10. the classification adopted in this work, 11. confusion of authorities as to, 21. construction of. See tit. Construction. as to, generally, 20. contractual relation between owner and original contractor, 12. distinguished from others, 3. evolution of, 5. fundamental idea of, 5, note. kinds of subjects or work provided for. liens for street-work. See tit. Street-work. liens upon mining claims. See tit. Mines and mining claims. liens upon structures, 3. lien on fund, 15. lien on structure separate from land, 14. lien under. a favored, 9. and mortgage compared, 18. mechanic's-lien law. See tits. Mechanic's lien; Mechanic 's-Iien law. divisions of, 134. provisions of statute, 134. nature and scope of right conferred by, 20. nature of action to foreclose lien. See tits. Action; Foreclosure of lien. as to, generally, 19. nature of lien secured under. as to, generally, 10. a favored lien, 9. object or thing to which lien attaches, 13. GENERAL INDEX. 889 CALIFORNIA STATUTE (continued). penal provisions of, how construed, 26. person availing himself of benefit of structure to pay, 14. places where found, 5. questions under, raised in the decisions, 3. relation of lien to debt, 17. spirit of the law, 6. theory of the law, 7. valid and void contracts, effect, 12. CANAL. deed of trust on, priority of mechanics' liens, 456, note. description of, in claim of lien, 357. extent of land subject to mechanic's lien on, 404. CARPENTERS. See tit. Laborers. employment at fixed rate per diem, aggregate wage more than one thousand dollars, effect on lien, 104, note. CARTAGE. where charged as part of cost of material, subject of lien, 91. " CASH." equivalent to " money " or " ready money," 346. meaning of word, 346. CAUSES OF ACTION. See tit. Joinder of causes of action. setting up, in foreclosure of lien. See tits. Complaint; Foreclosure of lien. CERTIFICATE. as to, generally, 187. architect cannot be compelled, in court of equity, to give, 188, note. as evidence. as to, generally, 682. of time of completion of building, 684. conclusiveness of, 190, 683. dismissal of architect, effect on provision for, 189. dissatisfaction with work no ground for withholding, 188, note, failure to obtain, effect, 187, note, of architect. See tit. Certificate of architect, of chief engineer of railroad, 684. note. of engineer. fraudulently withheld, effect, 188. note. of completion of work, 191. of extra work. See tit. Extra work. 890 GENERAL INDEX. CERTIFICATE (continued). oral declarations of architect after giving, 683. payments made from time to time without requiring, effect of, 189, note, procuring of completion, condition precedent when, 187. resolution of board of supervisors, 683, note, waiver of, 189. when excused, 188. withheld by engineer fraudulently, effect, 188, note. CERTIFICATE OF ARCHITECT. discharge of architect, effect of, as to, 189. dishonesty of architect, 188, note. effect on time of filing claim, 386. excuse for not obtaining, need not be pleaded, 621. given without sufficient investigation, 684, note. CESSATION OF WORK. See tits. Abandonment; Completion. as affected by validity or invalidity of original contract, 287. burden of proof, 682. character of, 286. confounding abandonment with, 477, note. notice of. See tit. Notice of completion or cessation of work. running of statute on, 285. scope of statutory provision, 285. sufficiency of allegation of, 653. CHANGES. See tit. Contract. oral agreement as to extra work, 193, note. CHIEF ENGINEER. certificate of, conclusive, 684, note. CHUTES. See tit. Mines and mining claims. true significance of word, 127. CIRCUMSTANCE S. contract explained by, 173. CITY CHARTER. admissibility of, in evidence, 671, note. CLAIM. See tits. Claim (ff lien; Claim to owner. construction of phrase " claims accruing," in contractor's bond, 559. non-presentation of, by owner's laborer, 761, note, owner as assignee of, 539, note. GENERAL INDEX. 891 CLAIM OF LIEN. See tits. Claim; Claim to owner. alleging contents of claim generally, 638. and notice of claim to owner distinguished, 292. and proof, variance between. See tit. Variance. as to, generally, 713. immaterial when, 717-719. material when, 714-716. as an exhibit to complaint, 1138. as equivalent of notice to owner, 512. as evidence of lien. See tit. Evidence, as to, generally, 686. recorder's indorsement of filing prima facie evidence of what, 687. assignable. in Co)orado, 20, note, in Oklahoma, 20, note, claimant must designate whether the work was alteration, construc- tion, etc., 92. construction of. See tit. Construction, as to, generally, 305. claim filed must show what, 306, note. general rule for determination of sufficiency of claim, 308. liberal construction, substantial compliance only required, 305. one rule only for all claimants, 307. requisites of claim, as to, generally, 308. variance, effect of, 309. with reference to. fullness of statement, 308. truthfulness of statement, 309. statute must be strictly pursued, 306, note, strict construction when, 307. substantial compliance, liberal construction, 305. unnecessary statements. as to effect of, 309. contractual relation with owner, 310. implications of law, 309. knowledge of owner, 309. other statements, 310. surplusage, 312. contents of. amendment of claim, as to, generally, 368. clerical errors regarded as corrected when, 369. no aider by averment in complaint, 369. charge, claim of, 360. claim of charge, 360. 892 GENERAL INDEX. CLAIM OF LIEN. Contents of (continued). description of property. See tit. Description of property to be charged, as to, generally, 347. application of provision as to demands against separate build- ings. as to, generally, 358. consolidation of mining claims, 359. effect of non-compliance, 359. grading and street work, 359. specific amount due, 359. street-work, 359. before enactment of the statute, 348. bona fide purchasers. California rule as to, 349. statutory provisions as to, 349. construction of description, 353. " correct " description, 348, note, description as including too much or too little. as to, generally, 356. in case of canal or railroad, 357. in case of mines and mining claims, 357. too little land, 356. too much land, 356. general rule as to description, 350. object of provision, 349. property identified by name or exclusive character, 354, 355. special applications. false calls, 351. particular description repugnant to general description, 352. " sufficiency of identification " a question of fact, 351. two or more descriptions. as to, generally, 358. statutory provisions, 358. under early statutes, 348, note, error and mistake in claim, as to, generally, 365. analysis of code provision, 366. as to terms of contract, 365, note, as to time of last payment, 365, note, general statement, as to, generally, 303. claim containing all facts required by statute sufficient, 304, note, contents of notice to owner, 305. need not contain all the facts, 304. substantial compliance with statute, 304. twofold character of claim to lien, 304, note, whatever the statute makes necessary, 303, note. GENERAL INDEX. 893 CLAIM OF LIEN. Contents of (continued). names required to be stated in claim, as to, generally, 317. " causing " improvement, 329. change of ownership, 321. employer. general rule as to, 326. name of person to whom material was furnished, 326. note, name of, to be giA'en in claim, 326. husband and wife, omission of either having interest, effect, 320, note, if claimant does not know name of owner of fee, what to be done, 323-325. if it is sought to affect the building only, 319. inferential statements. as to, generally, 328. contractual relation, request, 328. indebtedness, 328. knowledge of name, 322. mistake. as to legal and equitable ownership, 320, note, in christian name of employer, 327, note, name of agent, 329. name of owner or reputed owner, as to, generally, 318. under Washington code, 319, note, naming person causing improvement insufficient, 329, note, object of this statement in claim, 318. omission of name of owner whose interest is to be charged, effect, 319, note, owner. at time of filing claim, 321. reputed, 318. under the Washington code, 319, note, substantial compliance with statute, 318, 319. two or more employers or purchasers, 330-332. under void statutory original contract, 327. when statement shows contract with contractor. 328, note, signature to claim, as to, generally, 360. omission to add to place of residence, 362, note, statement of demand. commingling lienable and non-lienable items. Arizona doctrine, 316, note, effect, 31 G. Hawaiian doctrine, 316, note. 894 GENERAL INDEX. CLAIM OF LIEN. Contents of. Statement of demand. Commin- gling lienable and non-lienable items (continued). New Mexico doctrine, 316, note. Oregon doctrine, 316, note. Washington doctrine, 316, note, construction of the word " demand," 313, note, deduction of credits and offsets, 312. demand. against two or more buildings, 317. means what, 313. effect of false statement, 314, note. error or mistake in statement of demand, 312, note, itemizing unnecessary, 313, note, object of provision as to demand, 315. statement. as to use in building not required, 315. embracing several assigned liens, 315, note, what sufficient compliance with statute, 315. terms, time given, and conditions of contract, as to, generally, 333. amount of entire contract price should be stated, 343, 639. " cash," common meaning of " money," 346. claim not stating expressly that materials were furnished by claimant, 334, note, construction of provision, 333. construction of the word "material" as used in such claims, 342. dates, as to statement of, 344. description of the materials furnished, 342, note, exact meaning of some of these words, 333. express and implied agreement as to price, 340. general rules as to statement, 334. general statement of terms, time, etc., only is required, 336. implication of law need not be stated, 335, note, items of account, 342. nature of labor to be given, 342. necessity of subclaimant showing actual contractual relation, 338, note, no statement as to reasonableness of agreed price, 341. object and construction of provision, 333. partial payments, claimant cannot insist on, 346. presumption in absence of allegation cannot be indulged in, 335. reference to other papers, 339. setting out terms of original contract, 338. showing as to quantity, time, and value, 337, note, showing contractual indebtedness, 337. GENERAL INDEX. 895 CLAIM OF LIEN. Contents of. Terms, time given, and conditions of contract (continued), statement. as to improvement, 336, note. as to price of labor, 340. merely that owner entered into contract with contractor, 341, note, of the terms given and conditions of .contract, 336. of the terms of contract, when sufficient, 342, note, that " labor was performed by the day at the agreed price of," etc., sufficiency of, 342, note, sufficiency of statement, of claim, 342, note, of terms and condition, 343, note. " time given," meaning of expression, 345. when no time of payment was stated, 345. where claim sets forth the contract price, 341. uncertainty in claim, as to, generally, 364. as to whether one or two buildings, 365, note, date of contract need not be inserted, 365, note. in description, 365, note, uncertainty in statement. See " Uncertainty in claim," this title, as to, generally, 366. illustrations. as to, generally, 367. as to amount due, 367. as to contract, 367. as to names, 367. as to non-lienable items, 368. verification. See tit. Verification, as to, generally, 361, 364. by agent, 364. by attorney. as to, generally, 364. of foreign corporation, 362, note, errors and omissions, 364. form of, 362. pleadings of, not applicable to claim, 362. provisions as to, of pleadings not applicable, 362. time of, 364. contractor including amount of subcontractor, effect on latter, 77. costs of, not demandable on tender before suit, 725, note, defective, as notice to bona fide third parties, 538. description in. cannot be helped out by parol evidence, 688. of property to be charged with lien must be given, 638. distinction between, and notice of claim to owner, 292. 896 GENERAL INDEX. CLAIM OF LIEN (continued). duly executed and recorded, does not prove itself, 687, note, error. clerical, regarded as corrected in, when, 369. harmless, effect on sufficiency of claim, 800. failure to file, nonsuit for, 734. filing claim. See tit. Filing claim of lien, for excessive. materials, 579. price, 579. for non-lienable materials, 579. forfeiture by false or excessive, as to, 577, 578. fullness of statement as to, 308. harmless error, as to the sufficiency of, 800. mistake in claim, finding as to, 736, note, must show what, 306, note, name of owner, alleging in complaint, 638. nature of, 293. necessity of one or more, as to, generally, 298. material-man should not file separate claims when, 301. materials used elsewhere than in improvement on which lien claimed, 300. nature and purpose, generally, 292. persons joining in same claim of lien, 299. separate claim of lien not required when, 299. several objects and pieces of property, 300. various items of labor or material, 301. not setting forth plans and specifications, sufficiency of complaint on, 653. not synonymous with " notice of lien " and " lien," 293, note. " notice of lien " and " lien " not synonymous with " claim of lien," 293, note, notice to be filed, and operation thereof, 292, note, notice to owner, distinction from, 504. objections to contents of lien, as to, generally, 688. description of property not correctly given, 688. name of owner or reputed owner not correctly stated, 688. omission of essential fact not aided by averment in complaint, 369. original claim competent evidence where recorded, 687, note, ownership, change of, does not require new, 299. purpose of. as to, generally, 297. essential to perfection, of lien, 298. to inform claimants, 298. to inform owner, 297. GENERAL INDEX. 09/ CLAIM OF LIEN (continued). recorded. See tit. Recorded claim of lien. removal of, from recorder's office. 37."). resemblance between statutory provisions as to, 292. right personal, 511. rule for determination of sufficiency of, 308. separate under separate contracts, upheld, 300, note. several. persons joining in, 299. pieces of property affected, 300. statute must be strictly pursued, 306, note, statutory original contract verbal and void, claimant must comply with statutory provisions, 296. Statutory provisions as to. California statute, 294. Colorado statute, 294, note. Oregon statute, 294, note. Utah statute, 294, note. Washingon statute, 294, note, terms, time given, and conditions of contract to be set out, 343, 639. time of filing. allegation of, in complaint to foreclose. See tit. Complaint. statutory completion for purpose of filing, 637. truth of statement as to, 309. unnecessary statements in, as an exhibit, 640. variance. See tit. Variance. between. as to, generally, 711. and pleadings or proof. See tit. Variance. claim as an exhibit and allegations of complaint, 639. from strict requirements, 309. various items of labor or material, 301. when is necessary. as to, generally, 295. in case of furnishing materials for work in mining claim, 295. necessity for claim of lien, 296. statutory original contract verbal, 296. where contract involves construction of buildings on separate lots, 299, note, 300. CLAIM TO OWNER. excessive claim in notice of, 502, note. CLAIMANT. See tit. Claim of lien. but one rule of construction for, 307. effect of failure to give notice, 508, note, losing lien, right of general creditors, 546. Mech. Liens — 57 898 GENERAL INDEX. CLAIMANT (continued). not knowing name of owner of fee, requirements of, in filing claim, 323. not required to make survey of lot before filing claim, 350. priorities. See tit. Prioilties. rule regulating, has no reference to, 449, note, purpose of claim of lien to inform, 298. required to comply strictly with statute, 22, note, right to lien, how determined, 42, note, statute construed so as to protect, 23, note. substantial compliance lays foundation for lien in Colorado, 24, note, under subcontractor, limitation of lien of, 413. "CLAIMS ACCRUING." construction of phrase in contractor's bond, 559. CLASSIFICATION. See tit. California statute, of mechanics' liens. a general classification, 10. another classification, 11. CLERICAL ERROR. regarded as corrected in claim of lien when, 369. COLORADO. claim for lien assignable in, 20, note, direct lien in, 12, note. mechanic's-lien law of. as to, generally, 5, 12. act of 1883, 6, note. act of 1893, 6, note. modeled after California statute, 6, note, substantial compliance lays foundation for lien, 24, note. COMMON CLAUSES. See tits. Building contracts; Contracts. as to, generally, 180. arbitration clause. agreement not final, 181. as to California rule, 180. distinction between two classes of cases, 182. good faith and open dealings of arbitrators, 183. submission to. revocable, 183. without protest, 182, note. when procuring award, condition precedent to recovery, 181. certificates. See tits. Architect's certificate; Certificate. as to, generally, 187. GENERAL INDEX. 899 COMMON CLAUSES (continued). architect cannot be compelled in court of equity to give, 188, note. conclusiveness of, 190. dishonesty of architect, 188, note. dismissal of architect, 189. dissatisfaction, for work not ground for withholding, when, 188, note, failure to obtain, 187, note, of engineer as to completion of work, 191, note, payments made from time to time without requiring, effect, 189, note, ■waiver of, 189. when excused, 188. withheld by engineer fraudulently, 188, note, estimates. as to, generally, 185. approval and assignability of, 185, note, by members of board of trustees, 185, note, extra work. See tit. Extra work. as to, generally, 191. alterations, as to, 193, note, application of payments. See tit. Pajrment. arbitration. See tit. Arbitration, as to whether work is under original contract, or is extra, 192, note, changes by oral agreement is, 193, note, conditions precedent, 196. construction of contract as to, 191, note, contract in writing, 194. definition of, 191. estoppel, 194. evidence of, 191, note, payment. See tit. Pajrment. provided for in contract, 192. subsequent to mortgage, 195, note, verbal alteration of original contract, 194. void contract, no lien for, 195. waiver. as to, generally, 196. agreement of contractor not to file lien, 199, note. condition precedent, 199. public property, on, not necessary, 200. statutory provisions in California, 198. where contract provides engineer may direct additions, 194, note, written order for, 194, note, 195. liquidated damages. See tit. Liquidated damages. 900 GENERAL INDEX. COMMON COUNTS. evidence admissible under, 689, 689, note, in action to foreclose mechanic's lien, 618. proof of value on, 705. special contract offered in evidence, nonsuit should not be granted for variance, 735. COMMON-LAW BOND. See tits. Bond; Bond of contractor. formalities, 554. surety's liability. See tit. Surety. COMMON-LAW OBLIGATION. of contractor on bond, 218. COMMUNITY PROPERTY. action to foreclose lien on, service of summons on one spouse only, 600, note, both spouses necessary in action to foreclose lien on, 605, note, bound by mechanic's lien when, 426, note, wife not served, sale of, enjoined, 592. COMPETENCY. of parties to contract, 157. COMPLAINT. See tit. Pleading and procedure. as to, generally, 613. agency. allegations to bind contractor, 631. authority of person causing improvement to be made, 630. contractor as agent of owner, 631. employment by corporation, 630. in case of mines and mining claims, 630. allegation. as to attorneys' fees not necessary, 647, note. as to value of extra work must be made in, 689. of agreement to do work by month at specific amount, 635, note. of fees paid out recoverable in defense of action for breach of contract, 647, note. that assignment in writing not necessary, 619, note. that plaintiff paid for recording claim of lien not necessary, 636, note. under logger's lien, 624, note, alleging. amount owing from owner to contractor, 623, note. character of material, .632, note. damages, 647, note. excuse for not securing certificate as condition precedent, 621, note. GENERAL INDEX. 901 COMPLAINT. Alleging (continued). generally, that the constructor of building was the contractor, 629, note, material to have been furnished on given date, 619, note, prospective profits, 647, note. sufficient cause of action for recovery of money judgment not subject to demurrer, 652. amended. failure of record to show filing of, on default judgment, 613, note, filing without service of copy, abuse of discretion by court, 613, note, relates back to date of original complaint when, .59.5. amendment. See tit. Amendment. alleging changes made in conformity with contract, 726, note, arbitration as a condition precedent to action, 620, note, as to necessity of alleging, date of contract, 619, note. statutory original contract in writing, 619, note, averment in. by architect, 613, note, of condition precedent, 620, note. of construction and acceptance sufficient when, 623, note, of non-payment essential, 622, note, claim of lien. See tit. Claim of lien. alleging contents of claim, as to, generally, 638, as exhibit to complaint, 638. description of property to be charged, 638. name of owner, 638. terms, time given, and conditions of contract, 639. time of filing. as to, generally, 636. statutory completion for purposes of, 637. unnecessary statement in claim as an exhibit, 640. variance between claim as an exhibit and allegations of com- plaint, 639. conflict between. and bond as exhibit, 655. and exhibit. See tit. Variance, as to, generally, 654. damages. See tit. Damages, as to, generally, 647. attorneys' fees. See tit. Attorneys' fees, as to, generally, 647. paid out, recoverable as damages, 047, note, defect in, waived how, 633. defective, not aided b}- parol evidence, 368, note, deficiencies in, cured by answer, 660. 902 GENERAL INDEX. COMPLAINT (continued). description of property. as to, generally, 643, 644. in claim of lien referred to. as to, generally, 646. plaintiff may disregard lack of precision, 646. land for convenient use and occupation, 644, 645. of whole or part of building, 646. employment. as to, generally, 634. death of owner, 634. estoppel by deed or matters of record must be set out. 614. note, failing to show privity, 630, note. failure to plead facts to bind husband's interests, 630, note, general principles of pleading, 614. general rules of pleading contract. as to, generally, 616. certificate of architect, 621. common counts. See tit. Common counts, as to, generally, 617. where contract continues executory, 617. where contract partly performed has been abandoned, 618. where work done was under special agreement, as to, generally, 618. modification of rule, 618. completion of building, 620. conditions precedent, 620. debt due, 622. exceptions to the rule, 616. express contract, 619. non-payment of indebtedness to plaintiff, 622. premature payment to contractor by owner, 623. prevention of performance, 621. technical defects cured by acts of parties, 619. gist of action to foreclose mechanic's lien, 614, note. good against general demurrer when, 638, note. in action. by builder and architect, 613, note. to recover compensation due to builder, 613, note, interest allowed from date of filing, 753, note, joinder of cause of action in. See tit. Joinder of causes. as to, generally, 648. actions that may be united in one complaint, 649. designating causes of action separately, 648. objections to joinder, how raised, 650. reference from one cause of action to another, 649. several mining claims involved, 648. GENERAL INDEX. 903 COMPLAINT (continued). knowledge of improvement by owner, 629. lack of essential averments in, aided by answer or cross-complaint when, 61;j, note. materials, allegation and proof. as to, generally, 632. affixed and attached, 6-33. dates on which material furnished, as to, generally, 634. " on or about," 634. defect in complaint waived how, 633. reference to claim of lien as exhibit, 633. must affirmatively appear from, that notice filed contained all essen- tial provisions, 637, note. nature of labor. as to, generally, 635. extra work, 635. grading and other work, 635. no aider of claim of lien by averment in, 369. notice of non-responsibility, 629. notice to contractor, where action against fund, 625. notice to owner. See tit. Notice to owner. as to, generally, 623. complaint by subcontractor's material-man, 625. conclusion of law, 624. indebtedness due contractor from owner at time of, as to, gener- ally, 624. object of labor. as to, generally, 636. a well, 636. other interests. as to, generally, 640. alleging no other claim upon fund, 643. for what purposes alleged, 640-642. ownership. as to, generally, 628. conveyance, 629. pleading damages under contract for liquidated damages, 647, note, request of owner. as to, generally, 625. contract alleged presumed to be non-statutory, 625. subclaimant, 625. stating cause of action. as to, generally, 614. general rule. as to, generally, 615. of pleading contract. See " General rules of pleading contract," this title. 904 GENERAL INDEX. COMPLAINT (continued). to foreclose mechanic's lien, substantial compliance with statute, 613, note, variance between, and exhibit, 653. verification of, 648. void contract. See tit. Void contract. as to, generally, 626. agreed price. as to, generally, 627. in absence of demurrer for uncertainty, 627. value of work done, 627. amount due, 626. facts showing original contract to be void, 626. request of owner, 627. COMPLETION. See tits. Completion of building; Completion of work. actual, what constitutes, 385, note, date of, finding as to, 738. filing. claim of lien after, 379. notice of, 372, note, finding as to, 740. meaning of, in building contract, 265. of improvement, what constitutes, 372, note, payment. See tit. Completion payment, statutory, for purpose of filing claim of lien, 637. COMPLETION OF BUILDING. See tit. Completion, evidence of. as to, generally, 685. original contract as though void, 686. explanation by witness on redirect examination, 685, note, false representation of owner as to, 500. finding as to, 739. rejection of evidence as to waiver of provision in contract, 685, note, statutory evidence as to, 686. to be completed by certain date, harmless error in striking out evi- dence, 685, note. COMPLETION OF WORK. See tit. Completion. certificate of engineer as to, 191, note, immaterial issue when, 742. notice of. See tit. Notice of completion or cessation of work. COMPLETION PAYMENT. general provision as to, 474. where owner obliged to furnish material and labor, 471. GENERAL INDEX. 905 COMPOSITION AGREEMENT. See tits. Arbitration; Release of lieu, as to, generally, 580, agreement to assign claims to owner, 581. definition of, 580. effect of. as to, generally, 582. all creditors need not sign, 582. COMPUTATION. accepted aa sufiiciently accurate, 675, note. COMPUTATION OF TIME. See tit. Time. first and last day in, 378, note. CONCLUSIONS OF LAW. amount due from owner to contractor at time of notice is a, 624. and findings of fact. See tit. Findings. as to, generally, 745. demurrer to, 655. CONCLUSIVENESS. of certificate. See tit. Certificate, as to, generally, 190. CONCURRENT CONDITIONS. See tit. Conditions. CONDITION PRECEDENT. as to, generally, 268. alleging performance in action to foreclose mechanic's lien, 620. arbitration as a, 620, note. arbitration is, when, 195. certificate of architect as. See tit. Certificate. as to, generally, 199. concurrent, 268, note, duty of architect, 110. estimate is, when, 195. excusing not securing certificates as a, 621, note, in building contract, nature of, 196. in improvements on public property, 200. of payment. See tit. Payment, pleading, generally, 662, note. procuring award by arbitration is, to recovery when, 181. tendering performance without, 268, note, waiver of, 196. written order is, when, 195. 906 GENERAL INDEX. CONDITIONAL ACCEPTANCE. of assignment, effect, 544. CONDITIONAL COMPENSATION. finding as to, 739. CONDITIONS. See tit. Condition precedent. pleading, generally, 662, note. CONFLICT. between bond as exhibit and complaint, 655. between claim as exhibit and body of complaint. See tit. Variance, as to, generally, 654. CONSENT. and meeting of minds necessary to valid contract, 162. contract signed by one party, 162, note. fraud as affecting, 162. mistake as affecting, 162. of owner, necessity that contract be made with, 159, note. CONSIDERATION. express or independent, not necessary, 164. for abandonment of contract, 164. for contract, 164. CONSOLIDATED ACTIONS. See tit. Appeal, decree foreclosing lien on, 752. findings in, 744. hearing on appeal. See tit. Appeal, as to, generally, 802. CONSPIRACY. as to price. generally, 242. penalty for, 243. in alteration of contract, 206. CONSTITUTION. See tits. Constitutional law; Constitutionality. effect of, on statutory provision as to priority of lien claimants, 465. of California. does not give lien to contractors and subcontractors as such, 32. not self-executing, 31, 33. operation of, 32. raising question of validity of statute under, 34. provisions of, in relation to lien-holders, 134. rights of subcontractor under, 74. i GENERAL INDEX. 907 CONSTITUTIONAL LAW. See tit. Constitution. contractor's bond. See tit. Bond of contractor, jurisdiction. See tit. Jurisdiction, power of reputed owner, as to, generally, 39. estoppel, 40. priorities. See tit. Priorities, provisions creating lien. constitution not self-executing, 31, 33. in California. as to, generally, 31. not given to contractors and subcontractors, 32. in Georgia, 31, note, in Louisiana, 31, note, in North Carolina, 31, note. in Texas, 31, note. operation of the new California constitution, 32. raising question of constitutionality, 34. repeals. See tit. Repeal. as to effect of, generally, 46. retrospective laws, 41. right to lien under constitution, .52. statutes creating lien. constitutionality of, generally, 34. contractual relation, effect on, 37, 38. homestead. See tit. Homestead. " impairing obligations of contracts," 40, in California. act of 1868, 34, note, 36. act of 1891, 34, note, act of 1893, 31, note, act of 1897, 31, note, 34, note. act of 1901, 35, note. in Colorado. as to, generally, 34, note, act of 1883, 35, note, act of 1889, 35, note, act of 1899, 31, note, act of 1903, 35, note, in Georgia, 34, note, in Montana, act of 1905, 35, note, in Utah, act of 1896, 35, note, in Washington. as to, generally, 35, note, act of 1893, 36, note, act of 1895, 36, note, act of 1897, 36, note. 908 GENERAL INDEX. CONSTITUTIONAL RIGHT. See tit. Constitution. to lien, 52. CONSTITUTIONALITY. of provisions of statute as to sale and removal of improvements, cannot be raised first time on appeal, 800, note, of provisions requiring notice of completion or cessation of work, 380, note. of statute. See tit. Constitutional law. as to, generally, 34. of mechanic's-lien laws generally upheld, 34, note, 35, note, raising question of, 34. CONSTRUCTION. ambiguity or uncertainty in contract, 168. and acceptance. See tit. Construction and acceptance, contract and bond executed at same time, 167. dependent and independent promises, 172. explained by circumstances, 173. given by state courts as to preferential statutory claims, 546, note, independent and dependent promises, 172. joint and several contracts, 172. of California statute giving mechanic's lien. See tit. California statute. as to, generally, 20. of claim of lien. See tit. Claim of lien. as to, generally, 305. but one rule for all claimants, 307. . general rule for determination of sufficiency of claim, 308. liberal construction, 305. of notice to owner, 305, note. statute to be strictly pursued, 306, note. strict construction whenv 307. substantial compliance, 305. of contract. See tits. Building contract; Contract. as to whether work is extra work, 191, note. containing clauses for deviations, 179. of contractor's bond, 558. of findings. as to completion of building, 738, note. general principles of, 738, note. of mechanic's-lien statutes. as to extent of the lien, 29. as to right to perfect lien, liberally construed, 29. as to the remedial provisions, 30. conflict of principles manifesting themselves, 22, note. conflicting authorities, 21. GENERAL INDEX, 909 CONSTRUCTION. Of meehanic's-lien statutes (continued). elements creating inchoate rights, strictly construed, 28. legislative intent, how arrived at, 21, note. liberally construed as to remedial portion, 22, note. narrow technical construction not given when, 26. penal provisions strictly construed, 26, 29. rules of construction, 22, 23. scope of discussion, 20. so construed as to protect claimants, 23, note. strictly construed. as against purchaser, 22, note. as to compliance by claimant, 22, note. as to existence of lien, 22, note. substantial. compliance only required, 22. observance in Alaska, 24, note. of notice. of claim of lien, 524. of non-responsibility. See tit. Notice of non-responsibility, of penalty, 176. of provision as to essentials of validity of statutory original con- tract, 225. of statutory original contracts, 176. of warranty, 175. of warranty of design or plan under express specifications, 175. of water company to supply water, 178. of written contract to furnish machinery at fixed price, 177, note, reasonable stipulations implied, 174. reasonable time, 175, note. several contracts relating to same matters, 168. time of performance unspecified, 174. uncertainty in contract, 168. ■where bond is given to secure performance of building contract, 168, note, where monthly accounts are rendered, 169, note, where no time is fixed for payment, 170. where public body contracts to provide material, 174. "CONSTRUCTION, ALTERATION, ADDITION TO, OR REPAIR." as to, generally, 120. character of alteration, 121. counters added to a building as fixtures a " repair," 121. distinction between. " alteration " and " erection," 122. "alteration" and "repair," 121. importance of determining to which class work belongs, 121. partitions added to a building as a fixture, a " repair," 121. 910 GENERAL INDEX, CONSTRUCTION AND ACCEPTANCE. suliicieut allegation of, in action to foreclose mechanic's lien, 623, note. CONTENTS. of notice of claim of lien, 524. CONTRACT. See tits. Agreement; Building contracts; Contractual relation; " Non-statutory original contract "; " Original con- tract"; "Statutory original contract"; Street-work, action to cancel, amount less than jurisdictional, 599, note, admissible to show character of building, 691. agreed abandonment of, 164. alteration. See tit. Alteration. affecting sureties, effect of, 258, note. of, effect, 258. ambiguity in, 168. amendment of pleading showing modification, 726. architects, 169, note, 171, note. as evidence. in action on contractor's bond, 690. of completion, 689, note. upon deviation or abandonment, 689, note. with reference to time of performance of labor, 691. as notice of limitation of lien, 411. auditing accounts as provided in, 558. breach of. See tit. Breach of contract. stipulating as to action for, 551, note, by man who subsequently marries owner, 161, note, by public body to provide material, 174. consideration for, 164. conspiracy as to price. See tit. Conspiracy, construction of. See tit. Construction, containing clauses for deviations, 179. date of. need not be alleged in action to foreclose lien, 619, note. variance as to, effect of, 718. definition of, 156. dependent and independent promises in, 172. entire and severable, 169. erasures and interlineations in, 163, note, 689, note. essentials of, 156. explained by circumstances, 173. express or implied. amendment to show, 726. variance as to. See tit. Variance. ge]s;er-vl index. 911 CONTRACT (continued). extra work provided for in. See tit. Extra work. as to, generally, 192. false reference to plans and specifications, 16.3. for drawing plans and specifications, 156, note, for four buildings, 170, note, for street-work. See tit. Street-work, fraud, effect on, 162. immaterial issue when, 741. impairing obligations of, as to, 40. in writing, 194. inchoate, for street improvement, 162. indefinite, inadmissible in evidence, 691. indefiniteness of, 163. independent and dependent promises in, 172. interlineation altering, not avoiding same, 258, note, invalidity of, finding as to, 740. joint and several, 172. jury to draw inference from facts, 175, note. lien limited by. as to, generally, 409. claimants under subcontractors, 413. contract. as notice, 411. of subcontractor and contractor, 412. general interpretation of statutory provisions, 410. statutory provisions as to, 410. made with reference to statute, 161. materials furnished before filing, 242, note, mistake, effect on, 162. modification of, 258, note. must be made with owner or authorized agent, 530, note, negligence of, to supply materials, setting up, in answer, 661. no privity of, between owner and subcontractor, 530, note, of subcontractor and contractor as affecting extent of lien, 412. of unlicensed architect, 108. parol evidence of performance of, 693. particular clause, general intent, construction, 169. penalty in, 176. performance of, contradictory findings as to, 744. presumption of knowledge of valid, 689, note, price. See tit. Contract price, providing that owner should pay receipted bills as they become due, effect on surety, 557, note, ratification of, 164. reasonable. stipulations, implied when, 174. time of performance determined how, 175, note. 912 GENERAL INDEX. CONTRACT (continued). repudiation of part of, with architect by owner, rights of architect, 590, note, right of owner to cancel, 470. right to, not restricted by mechanic's-lien laws, 37. rights under, 38. several, relating to same matters, 168. special, may be introduced under common counts, 689, 690, note. statutory original. See tit. Statutory original contract. as to, generally, 176. stipulating as to action for breach of, 551, note, subcontractors bound by, 78. time of performance unspecified, 174. to bore two thousand feet of well-holes, 171. to furnish certain machinery at a fixed price, 177, note, to grade railroad, 172. to timber tunnel, 171. uncertainty in, 168. valid and void, effect, 12. valid or void, immaterial variance as to, 712. valid original, rights of siibcontractor under, 75. valid, what is, 38. variance between pleading and proof of, material, 720. void, effect upon contractor, 73. void for want of record, rights under, 58. warranty in. as to, generally, 175. of design or plan under express specifications, 175. when not required in writing, contract for extra work need not be, 194. where bond is given to secure performance of, 168, note, where monthly accounts are rendered, 169, note. CONTRACT PRICE. alteration of contract as to, conspiracy, 206. computable, 203. evading statute, 203. less than one thousand dollars, 202. premature payment of. See tit. Premature payment. under non-statutory original contract. need not be. payable thirty days after completion, 204. retained, 204. not to be payable in advance, 209. payable in instalments or after completion, 210. payment of. See tits. Payment; Statutory original contract. third payment to contractor, 210. withholding percentage of. See tit. Twenty-five per cent. as to, generally, 211. n GENERAL INDEX. 913 CONTRACTING. directly with owner or agent, variance between pleading and proof, material, 720. CONTRACTOR. agency of, variance as to, immaterial when, 717. agreement not to file lien, effect, 199, note, 200. allegations in complaint to bind, 631. as agent of owner. generally, 631. immaterial variance as to, 712. as statutory agent of owner, 529, note, bond of. See tit. Bond of contractor. on public improvement, 219, note, cannot make void contract basis of recovery, 252. cannot waive rights when, 71. creditors of original, entitled to money judgment against him, 71. damages for failure to perform contract, measure of, 69, note, defect caused by building extra story, 69, note. duty. to file contract for record, 71. to pay all indebtedness incurred, etc., 70. to pay owner amount of judgment in costs recovered by sub- claimants, 70. entitled to interest on claim, 754. expulsion of, liability of owner on, 494. general rights of owner and employer against. See tit. Owner. as to, generally, 469. judgment impressing fund due to, owner without complaint, 626, note. lien. allowed to, 118, note. not given to, as such, by constitution, 32. on express or implied contract, 252. necessary parties defendant in action to foreclose lien, 606. neglect to supply materials and proceed with work, setting up, in answer, 661. not agent of owner to determine value of materials, 529, note, not appealing, objection to form of judgment against, 799. not entitled to attorneys' fees when, 772, note, not joining in an appeal. See tit. Appeal. notice of appeal need not be served on, when, 790. original. See tit. Original contractor, owner. may set off costs and interest against, when, 769. no liability to, when, 488. not entitled to damage for loss of rents when, 69, note. objecting to non-joinder of, 799. Mech. Liens — 58 914 GENERAL INDEX. CONTRACTOR (continued). personal judgment against. not adverse party when, 787. notice of appeal, 787. priorities between. See tit. Priorities, reqiiirement to keep brick-work straight and plumb, 69. right to costs under void contract, 769. suit on, 220. third payment to, under statutory original contract, 210. two or more original. See tit. Original contractor. CONTRACTOR'S BOND. See tit. Bond of contractor. CONTRACTOR'S ORDER. in favor of material-man payable on completion of building, destruc- tion by fire, effect, 196, note. CONTRACTUAL INDEBTEDNESS. See tits. Contract; Demand. variance between pleading and proof as to, material, 721. CONTRACTUAL RELATION. See tit. Contract. as to, generally, 37. as to lien where there is none, 254. between owner and original contractor, 12. is matter of pleading and proof, 310, note, statement in claim of lien showing, 328. statute does not create, when, 493. with owner need not be shown in claim of lien, 310. CONTRADICTORY FINDINGS. See tit. Findings. CONVENIENT USE AND OCCUPATION. as to, generally, 395. construction of phrase, 395. court may exercise judgment as to, when, 396. evidence as to extent of land necessary for, 673. extent of territory necessary, 395, 396. finding as to land necessary for, 736, note. in case of fair-ground race-tracks, 396, note. land necessary for, 644. lien properly confined to what land, 396. CONVEYANCES. on record as eA'idence of reputed ownership, 688, note. priorities of liens under, 449. GENERAL INDEX. •J 15 COOK. for men employed in constructing improvement, not entitled to mechanic's lien, 91. in mine, not entitled to meelianic's lien, 91. COOKING. for laborers employed upon work, no lien for, 131. COPARTNERS. necessary defendants in action to foreclose mechanic's lien, as to, generally, GOG. death of one partner, effect of, 606. wives of, not necessary parties, 605, note. CORPORATION. as surety on contractor's bond, 5.51, note. can contract in same manner as natural persons, 158. employment by, agency, 630. foreign, verification by attorney for. See tit. Verification. general agent of, not entitled to lien when, 119, note. manager of, not entitled to lien when, 119, note. notice or knowledge of improvement, rule does not apply. See tit. Notice of non-responsibility, superintendent of, not entitled to lien when, 119, note. COST, excess of, on abandonment by contractor, liability of surety, 569. COSTS. See tit. Attorneys' fees, as to, generally, 767. against owner prolonging litigation, 769. and attorneys' fees, as to, 47. apportionment of, on appeal from separate judgments foreclosing mortgage and mechanic's lien, 784, note, attorneys' fees, assessment in, error, 770, note, contractor liable for, when, 491. deposit of money in court by owner relieves from costs, 492, note. in action. against agent, setting up as defense to foreclosure of lien, 664. to foreclose lien on threshing-machine for less than jurisdictional amount, 599, note, of claim of lien not dcmandable on tender before suit, 725, note, of filing, preparing, and recording claim of lien, 768. of preparing, filing, and recording claim of lien, 768. of recording, preparing, and filing claim of lien, 768. provision as to, 49. recoverable as damages, 647, note. 916 GENERAL INDEX. COSTS (continued), recovery. against owner prolonging litigation, 769. by owner when, 769. of, from contractor, by owner, 768, note, relation of attorneys' fees to, 772. right to, under void contract. of contractor, 769. of owner, 769. setting off costs and interest against contractor when, 769. statutory provisions as to, 767. unnecessary expenses on sale not, 768, note, withholding by owner after notice, 768, note. COUNTER. added to a building as fixture is a " repair," 121. lien for installing, 151, note. COUNTERCLAIM. See tit. Offsets and counterclaims, of surety on contractor's bond, 551, note. setting up. as defense to foreclosure of lien, 664. in action to foreclose lien, 664. COUPLINGS. patterns used in manufacture of, not subject of mechanic's lien, 90. COURSE FOR PRACTITIONERS. only safe, 2. COURT. See tit. Jurisdiction. may exercise judgment as to space for convenient use when, 396. no jurisdiction to foreclose lien against wife not made party, 752, note, to determine issue as to limitation of action, 594, note. CREDIT. and offsets, variance as to deducting, material, 716. as to meaning of, 346. extending, effect of, 262. given, suit on original contract when, 596. giving, as affecting time of filing lien, 388. CREDITORS. See tit. General creditors. all, need not sign composition agreement, 582. entitled to money judgment against original .contractor, 71. not found to be lien-holders, no recourse against owner's pioporty, 492, note. a GENERAL INDEX. 917 CEOPS. priority of farm-laborers on, 447, note. CROSS-COMPLAINT. demurrer to, CJ], note. failure to serve, dismissal, 725, note. immaterial what name defendant gives his pleading, 667. Betting up. damages in, 668. in answer to foreclosure of lien, 667. mechanic's lien by, in mortgage foreclosure, 667. payments in, 668. CROSSCUTS. See tit. Mines and mining claims, true significance of word, 127. CURRENT MARKET PRICE. variance showing regular market price immaterial, 718. DAMAGES. allegation as to attorneys' fees not necessary, 647. costs and expenses reasonably necessary to conform work to original contract, 475, note, evidence of. circumstances surrounding execution of contract, 695. cost of new stairs not measure of, for breach, 695, note. defendant's default, 695. difficulty and cost of work, 695, note. nature of services admissible in action for, on breach, 695, note, for breach, findings as to, 740. for delay in performance. as to, generally, 475. exclusion of evidence as to damages for, 475, note. liquidated, stipulation, literally enforced, 475, note. may be set up in answer against foreclosure of lien, 666. not recoverable where contract modified by mutual consent, 475, note. where owner entitled to, for, 475. for failure of owner to permit claimants to occupy under leasehold interest, 476, note, in action for, for breach of contract, allegation of demand not necessary, 647. items of, for failure to complete in time, 473. liability of surety for. See tit. Surety, liquidated. Sec tit. Liquidated damages. stipulation for, literally enforced, 475, note, nature of concrete-work unconnected with cause of action, 605. nnff. 918 GENERAL INDEX. DAMAGES (continued). pleading under contract for liquidated damages, 647, note, surety, liability of, for. See tit. Surety, sustained by owner may be set off when, 665. waiver of claim for, 476, note. DATE. not necessary to set forth in claim of lien when, 344. of completion, finding as to, 738. " on or about," sufficiency of allegation, 634. on which materials furnished, allegation of, 634. DAUGHTER. of owner, as his agent, 1.59, note. DAY. parts of, taken into consideration in determining priority of lien, 455. DEATH, of employer. effect on laborer's lien, 105. notice of, effect on employment, 105. of owner, recovery against the estate, 761. of party liable, appeal, 786. DEBT. allegation of, in action to foreclose mechanic's lien, 622. and lien separate, 17, note. and security, separate assignments, 541. assignment of, necessary, 541. must be payable when suit commenced, 595. relation of lien to, 17. title of assignee of security and right to enforce, 541. DECISION. conflict in, as to whether lien on land or structure, 3, note, questions on California statute raised in, 3. DECHEE. See tit. Judgment. as to, generally, 749. against original contractor, 751, note, as to validity of, on foreclosure of mortgage, 751, note, cannot be rendered for items not set forth, 750. conclusiveness of, 750, note. court cannot render, against wife not party, 752, note, curing improper, by filing disclaimer, 750, note. • GENERAL INDEX. 919 DECREE (continued). default. against owner, 756. modification of, 755. deficiency judgment. See tit. Deficiency judgment, doable judgments. See tit. Judgment. effect of, on third person, 751. extent of lien of. as to, generally, 764. effect of failure to define extent of land, 765. land necessary to convenient use and occupation to be directed sold, 766. necessity of designating property to be sold, 765. order directing sale of entire building, 765. statutory' provision, 764. foreclosing lien. creates a judgment upon premises, 751, note. of defendant setting up sufficient claim, 750, note, in consolidated action, 752. interest. allowed only from date of lien claim, 754, note. contractor entitled to, 754. in land ordered sold when, 763. may be included in, 753. of subcontractor's claimants, charge against subcontractor, 755. on claim from date of filing complaint, 753, note. on materials furnished from time to time, 754. on quantum meruit not allowed, 753, note. on unliquidated demands, 755. on valid contract, payment of fund into court by owner, 755. payment into court relieves from, 753, note, 755. plaintiff not entitled to, prior to verdict or judgment when, 755, note. properly allowed on sum awarded, 754, note. subclaimants. entitled to, 753, note. in case of unliquidated claims, 753, note. what within the rule, materials furnished from time to time, 754. where materials furnished from time to time, 754. kind of money in which to be satisfied, 752. nature of foreclosing lien, 749. not for more than demanded, 75U, note, of sale under prior mortgage, 762, 763. order of sale of interest in laud made when, 763. personal judgment. See tit. Judgment, prior mortgage, of sale, 763. 920 GENERAL INDEX. DECREE (continued). questions of title cannot be adjudicated, 750, note. recitals in. as to, generally, 763. foreclosure of interest, 763. knowledge as to improvement, 764. ownership and knowledge, 764. remitting portion of. See tit. Judgment, subsequent, upon reinstating claims, sale, 779, note, title, questions of, cannot be adjudicated, 750, note, vacating for excusable neglect, 750, note. DEED. of trust. on canal, etc., priority of mechanic's lien, 456, note. rule as to notice of non-responsibility does not apply to, 442. on sale under foreclosure of lien, 781. DEER MEAT. furnished to laborers in a mine, not subject of lien, 89. DEFAULT. continuance of work by contractor after, effect, 271. judgment. See tit. Default judgment. against owner, 756. modification of, 755. personal judgment by subclaimant against subcontractor on, 760. relief from, discretion of court, 724, note. DEFENSE, arising subsequent to assignment, 544. failure of owner to make valid, effect of, 489. DEFICIENCY JUDGMENT. as to, generally, 761. for gross amount, 762. form of, 762. notice to owner to withhold payment, 762. validity of, not involved on appeal when, 795. DEFINITION. See tit. Words and phrases. of actual completion, 585, note, of adverse party, 785. of " any such contract," 259. of " any such mine," 122, note, of architect, 102, note, 108. of artisan, 102, note. GENERAL INDEX. DEFINITION (continued), of bestowed, 116. of builder, 102, note. of building contract, 157. of building or other improvement, 135. of " cash," 346. of " chutes," 127. of completion, 265. of composition agreement, 580. of contract, 156. of contract for street-work, 166. of contractor, 54, 72. of contractor's contract, 165. of "credit," 346. of crosscuts, 127. of demand, 313. of engineers, 103, note, of extra work, 191. of furnished, 88. of " further advances," 460. of " future advances," 549, note. of improvement, 117, 128, 136, 137, note, 372, note, of improves, 128. of " inclines," 127. of laborer, 103, note, of "levels," 127. of lien, 293. of machinists, 103, note. of material, 80. of material-man, 80. of mechanics, 102, note. of mine, 8,. 94, 139, 147. of miner, 103, note. of mining claim, 145. of non-statutory original contract, 166. of novation, 264. of " occupied," 369. of original contract, 165. of original contractor, 54. of persons performing labor in a mining claim, 103, note. of servant, 103, note. of "shafts," 127. of statutory original contract, 166. of " stopes," 127. of structure, 136, 137, note, 138, 139. of subcontract, 166. of subcontractor, 72, 529, note. 92] 922 GENERAL INDEX. DEFINITION (continued). of subcontractor's contract, 165. of terms used in the mechanic's-lien law, 135. of " therewith," 129. of " time given," 345. of " trifling imperfection," 272. of " tunnels," 127. of " uprises," 127. of valid contract, 38. of various kinds of laborers, 100. of workmen, 103, note. DELIVERY-SLIPS. admission of, as books of original entry, 799, note. DEMAND. against separate buildings, description in claim of lien, 358. against two or more buildings, 317. assigned liens, two or more included in, 315, note. commingling lienable and non-lienable items in, 316, 368. construction of, 313, note. definition of, 313. for the sum of " $ ," 315, note. including two or more assigned liens in, 315, note. itemizing. See tit. Itemizing, unnecessary, 313, note, 314, note. made by contractor which should have been submitted to arbitra- tion, 696, note. names required to be stated in claim of. See tit. Names required to be stated in claim. object of provision for, 315. on several assigned liens, 315, note. statement of, in claim of lien. See tit. Statement. sufficient in bringing action, 647, note. DEMURRER. See tit. Pleading and procedure. as to, generally, 651. admitting ownership, 651, note, for uncertainty in claim of lien, 652. general. as to, generally, 652. for failure to set forth plans and specifications, 653. for uncertainty in allegation as to cessation of work, 6.53. for variance between claim as exhibited and body of complaint, 653. on monej' judgment and foreclosure of lien, 652. to be overruled when, 652, note. GENERAli INDEX, 923 DEMURRER (continued). overruling, on ground of uncertainty as to character and extent of extra work, 798, note. special. as to allegations of materials furnished, 655, note, for ambiguity. and uncertainty, 654. husband and wife parties to contract, 654, note. for conclusion of law, 655. for conflict between. bond as exhibited and allegations in complaint, 655. claim as exhibited and body of complaint, 6.")4. for inconsistency' of complaint with attached exhibit, 655, note, for misjoinder of parties. as to, generally, 654. party objecting not affected, 654, note. for uncertainty. as to, generally, 654, 655, note, insufficient when, 654, note, waiver of uncertainty in complaint by failure to file. 654, note, to cross-complaint, 651, note. to second cause of action not considered on ap2:)eal when, 652, note, waiver by failure to, 651, note. DENIALS. on information and belief. See tit. Answer. DEPOSIT. See tit. Payment into court, by owner with county clerk, 491, note. duty of owner to make, of money in court, 492, note, effect on costs and interest, 492, note, fund not, injunction granted when, 592. of money in court. as to, generally, 729. action by owner to bring in all parties and, 590, note, payment of balance of fund, 729. DESCRIPTION OF PROPERTY TO BE CHARGED. See tit. Claim of lien, amendment as to, 727. construction of, 353. evidence to determine sufficiency of, 673. field-notes made by surveyor, 673. immaterial variance as to, 713. in complaint to foreclose mechanic's lien, 643. in demands on separate buildings, as to, generally, 358. 924 GENERAL INDEX. DESCEIPTION OF PROPERTY TO BE CHARGED. In demands on separate buildings (continued). consolidating of mining claims, 359. effect of non-compliance with statute, 360. grading and street work, 359. specific amount due, 359. Including too much or too little. as to, generally, 356. in case of mines and mining claims, 357. in case of railroad or canal, 357. too little land, 356. too much land, 356. land for convenient use and occupation, 644. must be set out in claim of lien, 638. particular, repugnant to general, effect, 352. property identified by name or exclusive character, 354. sufficiency of, for identification, 348, 351, 352, note, two or more, 358. when sufficient, 351, note. DESTRUCTION OF BUILDING, before completion, effect on lien, 484. effect on orders on owner's mortgagee, 486. DETAILED DRAWINGS. referred to in memorandum of contract, 241. " DEVELOPING." See tit. Mines and mining claims. DEVELOPMENT WORK. ordinary lease for, right to create mechanic's lien, 422, note. DEVIATIONS. from contract, provisions for, construction of, 179. from specifications does not discharge sureties when, 565, note. DIRECT LIEN. in Colorado, 12, note, in Hawaii, 11, note. DISABILITY. persons under, creation of right to mechanic's lien by, 415, note. DISCLAIMER. curing improper judgment by filing, 750, note. GENERAL INDEX. 925 DISMISSAL. fictitious defendants, 725, note. for failure to serve cross-complaint, 725, note. of architect, effect on provision for certificate, 189. on transcript failing to show motion or order, 792, note. DISCRETION OF COURT. in granting relief from default. See tit. Default, as to, generally, 724, note. DISTINCTION. between. claim of lien, and notice of claim to owner, 292. notice to owner and claim of lien, 504. original contractor and material-man, 62. sales of personalty and agreements for work and labor, 61, note. voluntary grantor and compensated surety, 551, note. DISTRIBUTION. of fund, order of priority among claimants, 462, note, void order of sale directing, 778, note. DOUBLE LIABILITY. as to where will be imposed, 42, note. DRAWING PLANS. See tit. Architect. lien for, 120, note. DRAWINGS AND SPECIFICATIONS. signing, 228, note. "DRAWINGS HERETO ANNEXED." meaning of, when used in memorandum of contract, 240. DRIFTING. See tit. Mines and mining claims. as to, generally, 126. running a tunnel, 127. DUTY. to file statutory original contract, upon whom cast, 230. ELECTRIC PLANT. niMtprinl-innn jilncing in situ. Hen, 82. EMBANKMENT. evidence as to shrinkage of, 675, note. 926 GENERAL INDEX. EMPLOYER. See tits. Owner; Owner, employer, or person causing improvement. agency of, not presumed, 795. knowledge. of lack of authority of, as waiver of lien, 575. that incurred indebtedness on own responsibility, 679. mistake in christian name of, in statement of claim of lien. .327. note, name of, in claim of lien. See tit. Names required to be stated in claim, necessary parties defendant in action to foreclose mechanic's lien, 606. notice to. See tit. Owner, employer, or person causing improvement, of material-man preparing the material not a subcontractor, 74. two or more, statement of names in claim, 330. EMPLOYMENT. allegation of, in action to foreclose mechanic's lien, 634. death of owner, 634. ENGINEER. See tits. Chief engineer; Laborers. certificate of completion of work, 191, note, conclusiveness of estimate of, as to additional earth removed, 683, not specifically provided for in California statute, 103, note.(\l ''-^v^ I 1/ J written order where, may direct additions to work, 194, note. ^ EQUITABLE LIEN. none on property for value of improvement when, 157, note. EQUITABLE OWNERSHIP. mistake as to, in claim of lien, effect, 320. ERROR. in claim of lien. See tit. Claim of lien. in date of cessation from labor upon abandonment by contractor, 382. in description of property in memorandum of contract, 237, note, in statement of demand, effect of, 312, note. in verification of claim of lien, effect of, 364. of law, specification of particular, on which appellant relies, 724, note. ESTATES OR INTERESTS. bound by mechanic's lien. See tit. Limitations on liens, priority between mechanics' liens and, 447. recovery against, on death of owner, 761. a GENERAL INDEX. 927 ESTIMATE. as to, generally, 185. alterations, value to be made by architect, 184, note. approval of, 18.5, note. assignability of, 185, note. by members of board of trustees, 185, note. condition precedent to recovery when, 195. of work, impeaching witness as to, 683, note. ESTOPPEL. See tit. Limitations on liens. agreement with lessee or conditional purchaser regarding improve- ments, 438, note, arbitration as, 195. as evidence. See tit. Evidence, as to attorneys' fees, 725. as to extra work, 194. by deed or matter of record must be pleaded to be availed of, 624. by stipulation, 724, note, findings as to, 741. in absence of principle of, liability, 195. in action to foreclose mechanic's lien, 603. in pais, 429. lessee in possession making improvements, 435. none, of purchaser of property of estate assuming debts, 700, note. notice of non-responsibility. failure to give. See tit. Notice of non-responsibility. not required to avoid, when. See tit. Notice of non-responsibility, notice or knowledge of improvement sufficient to raise, 434. of contractor on bond, 699. to question validity of statutory original contract, 226. vendee in possession making improvements, 438. EVADING STATUTE. by failing to express contract price, 203. EVASIVE DENIALS. See tit. Answer. EVIDENCE. as to, generally, 670. admission. as to correctness of survey, 672, note. cannot remedy defects, 671, note. in pleading supports finding, 672. of default of contractor, 672. as to adjustment of wages, 672, note. as to fixtures, 674. as to quality of material furnished, 701, note. 928 GENERAL INDEX, EVIDENCE (continued). as to sufficiency of description of property, 673. as to value of attorneys' fees admissible, 673. burden of proof. See tit. Burden of proof. as to, generally, 680. certificate as. architects, proof given without sufficient investigation, 684, note, as evidence of time of completion of building, 684. conclusiveness of certificate, as to, generally, 683. as to work, 683, note, generally, 682. of chief engineer of railroad, 684, note, of engineer's estimate, conclusiveness of, 683, note, where architect makes oral declaration, 683. city charter admissible in, 671. claim of lien as. as to, generally, 686, 688. auditor's certificate of recording, 687, note. certified copy of notice and proof of record, 687, note. claim and record do not prove themselves, 687, note. merely filing indorsement of date and page of record, evidence of, nothing, 687, note, original claim is competent evidence, 687, note, recorder's indorsement of filing, 687. conflict of, new trial on appeal. See tit. New trial, contract as. erased portions of, effect on, 689, note, in action on contractor's bond, 690. of completion, 689, note. upon deviation, abandonment, etc., 689, note, with reference to time of performance of labor, 691. estoppel as. See tit. Estoppel. as to character of material as personalty, 697, note. general rule, 697. judgment, 697. of contractors on bond, 699. of owner. as to, generally, 698. by acts of reputed owner, 699. surety not, to foreclose lien, 699. failure to object to, 672, note, general rule as to exclusion of, 671. held insufficient, 672. immaterial, as to partnership, 671, note. in contract for liquidated damages against Sureties, 558, note, in suit on quantum meruit, 690, note. GENERAL INDEX. 929 EVIDENCE (continued). inadmissibility of indefinite contract as, 691. judicial notice. See tit. Judicial notice. as to, generally, 674. as to computation, 67.5. as to incorporation of cities, 675. as to mining instrumentalities, 67.5. misrepresentations of owner admissible in, 672, of abandonment of modification, 691, note. of acceptance of performance, 696. of admission by purchaser of use of material, 701, note. of agency. as to, generally, 534, note, 677. knowledge. of lack of agency, 679. that employer incurred indebtedness on his own account, 679. overcoming presumption of knowledge, 678. presumption, 677. proof of knowledge of owner, 680. special statutory provision, 677. where foreign corporation owns mines, 678. of benefit conferred, 696. of books of account, 674. of completion of building, 685. of contract. as to time of performance of labor, 691. indefinite, inadmissible, 691. to show character of building, 691. of damages. See tit. Damages. circumstances surrounding execution of contract, defendant in default, 695. liquidated, provided for, not warrant recovery when, 695. of circumstances surrounding execution of contract, tor purpose of estimating, 695, note. of cost of new staircase not measure for breach, 695, note of nature of services in action for, for breach, 695^ote. of demand made by contractor, 696, note. of difficulties and cost of work, 695, note, of extent of land for convenient use and occupation, 073. of extra work, 191, note, 689. of field-notes of surveyor, 673. • of forfeiture, 700 of fraud, 700. of fraudulent representation, 701. of intention of parties in annexing fixtures, 674. of liability in case of failure to perform or abandouinont. 096. Mech. Liens — 59 5^0 930 GENERAL INDEX. EVIDENCE (continued). of malperformance of work, as to, generally, 694. of contract for liquidated damages does not warrant recovery when, 695. testimony. of architects, 694. of carpenters, 694. of contractor in rebuttal, 694, note, of money advanced, 702. of nature of concrete-work unconnected with cause of action, 695, note. of non-completion of building, 686. of non-liability of tenant not admissible when, 671. of original contract to determine character of building, 686. of parol. See " Parol," this title, in aid of false reference, 691. modifications of written contract, 690. of partial tender of performance, 671, note. of release of owner admissible against assignee, 670. of reputed ownership, conveyances on record as, 688. of rescission as evidence of fraud, 700. of shrinkage of embankment, 675, note, of signed specifications, 692. of special contract. as to, generally, 689. under common counts, 690, note. of testimony of claimant against estate of decedent, 674. of time-checks given by contractor to laborer, 702, note, of use of material in building, 701. of validity of contract, 689. of value. contract as, of extra work, 705. express contract for extra work, 705. market price as evidence of, 708. other evidence of value, 709. under common counts, 705. usual price as evidence of, 708. valid contract as evidence of, 705. void contract as evidence of, 706. of want of notice of probate proceedings, 676. parol. admissible to show supposed principal on bond a surety, 675, note, in aid of false reference, 691. not admissible. for construction of contract, 692. to help out claim of lien, 688. of abandonment of modifications, 691, note. GENERAL INDEX. 931 EVIDENCE. Parol (continued). of assignment, 675. of modifications of written contract, 690. of performance of contract, 693. rule not applicable to mere memorandum, 692. to explain meaning of words, as to, generally, 676. gross ton, 676. presumption. of knowledge by subclaimants of valid contract, 696. that material furnished to be used was used in building, 701, note, questions. assuming matters in dispute objectionable, G76. of fact, 703. of law, 704. receipt. of payment by note, 677. prima facie, of what, 677. rejection of, as to waiver, 685, note. . statutory. as to, generally, 686. of completion of building, 686. void original contract. admissible for what purpose, 693. invalidity, how shown, 694. EVOLUTION. of (Jalifornia mechanic's-lien law, 5. EXAMINATION OF WITNESS. See tits. Evidence; Witness, questions assuming matter in dispute, 676. EXCESS OF COST. on abandonment by contractor, liability of surety, 569. EXCESSIVE ATTORNEY'S FEE. See tit. Attorneys' fees. EXCESSIVE CLAIM. See tit. Claim of lien. forfeiture by, as to, 577. judgment for, not reversed on appeal when, 802, note. nonsuit not granted for, 734. EXECUTION. as to, generally, 778, note. junior, application of proceeds of sale to, 781. on personal judgment, 778, note. writ is not an, 780. 932 GENERAL INDEX. EXECUTOR. authority to confer right to mechanic's lien, 415, note, can make no contract which would give lien on mine, 158. cannot make valid contract for improvement without order of court, 158. unauthorized original contract by, effect of, 158. EXHIBIT. See tit. Pleading and procedure, claim of lien as an. to complaint, 638. unnecessary statements in, 640. conflict between, and complaint. See tit. Variance. as to, generally, 654. variance between, and body of complaint, 653. EXPRESS AGREEMENT, as to price, 340. EXPRESS CONTRACT. pleading of. See tit. Complaint, in action to foreclose lien, 619. EXPRESS PRICE. variance between pleading and proof as to, immaterial, 722. EXPULSION OF CONTRACTOR. liability of owner on, 494. EXTENT OF LAND. See tit. Convenient use and occupation. EXTENT OF LIENS. See tit. Limitation on liens, construction as to, 29. EXTINCTION OF CONTRACT, alteration. how evidenced, and effect, 261. in affecting sureties, 258, note. of original, statutory provisions, 258. extending credits, 262. interlineation altering, does not avoid same when, 258, note, modification of, 258, note, novation. See tit. Novation. as to, generally, 264. fact that purchaser of estate property assumed debt for work, 265. where original contrac-tor assigns whole contract, 264. owner accepting performance of contract as modified, 262. 1 ! 4 GENERAL INDEX. 933 EXTINCTION OF CONTRACT (continued). payments, 263. performance of contract, as to, generally, 265. abandonment of original contract. as to, generally, 288. by contractor, owner's liability, 289, note, contractor. abandonment of contract by, owner's liability, 289, note, substantial performance of undertaking, 289, note, excess of cost on, liability of surety for, .569. final payment not available to lien claimants, 290, note. intent to abandon, 289, note, justification of abandonment. as to, generally, 290. if contractor has not performed according to terms, 290. mere conveyance of property during progress of work, effect of, 291. owner having proper claim for damages, effect of, 291. owner's liability, 289. under valid contract, 289, note. " completion," meaning of term, as used in provision, 265. original contract valid, 266. original contract void, as to, generally, 266. " completion " of mining claim, 279. continuance of work under contract after default of defendant, 271. conveniences, 278. erection of structure in part only, 279. excuses for non-performance, 268. general principles, 276. general rule, conditions, 268. payment as condition precedent, 270. performance of warranty, 271. rule as to what shall constitute performance is indefinite 277. slight difference in value, 278. substantial performance geiu rally required, 274. time of performance, 267. " trifling imperfection." as to, generally, 272. meaning of term, as used in provision. 272. what constitutes a, 273. when no time specified, 267. statutory equivalent of completion, for purposes of lien. as to, generally, 279. acceptance as waiver, 283. 934 GENERAL INDEX. EXTINCTION OF CONTRACT. Performance of contract. Statutory equivalent of completion, for purposes of lien (continued). as affected by validity or invalidity of contract, generally, 287. original contract valid, 287. original contract void, 288. cessation of labor for thirty days, statutory provision, as to, generally, 284. character of cessation, 286. scope of statutory provision, 285. statute begins to run when, 285. character of occupation and use, 281. occupation and use, scope and object of statutory provision, 280, 281. owner's consent to abandonment or rescission, 283. statutory provisions, 280. void contract, 282. where the contractor has furnished all work and materials, 266. power of architect to alter contract, 264. premature payment, 258, note, statutory original contract, 259. to what original contract provision applicable, as to, generally, 259. " any such contract," meaning of expression, 259. EXTINCTION OF LIEN. See tits. Forfeiture of lien; Release of lien; Waiver of lien, as to, generally, 572, note. EXTRA WORK. as to, generally, 191. allegation as to, must be made in complaint, 689. alterations as, 193, note. as to whether work is under original contract or is, 192, note. changes by oral agreement are, 193, note. construction of contract as to whether work is, 191, note. contract for. in writing, 194. need not be in writing when, 194. definition of, 191. estoppel. See tit. Estoppel. evidence of, 191, note. oral agreement, changes by, are, 193, note, provided for in contract, 192. provisions for arbitration a's to, 195. setting aside arbitration as to amount due for, 184, note, verbal alterations of original contract, 194. void contract, no lien for, 195. GENERAL INDEX. 935 EXTRAORDINARY RIGHT. mechanics' liens regarded as an, in Oregon, 7, note. EXTRAS. cost of, in correcting imperfections in work, liability of surety on bond, 570. FACTORS. necessary to constitute claimant an original contractor. See tit. Original contractor. FACTS. admitted, finding unnecessary, 742. misstatement of, in claim of lien does not vitiate, 312. not alleged in pleadings, 671, note. questions of, 703. FAILURE. to perfect lien, relates back, 451, note, to perform, evidence of liability for, 696. FAIR-GROUNDS. raeclrack in, extent of, 396, note. FALSE. claim, forfeiture by. See tit. Forfeiture. as to, generally, 577. representation. as to ownership of building, effect on lien, 407. by owner as to completion of building, liability, 500. statement of claim, effect of, 314, note. FARM-LABORERS. priority of lieu of, on crops, 447, note. FAVORED LIEN. mechanic's, is a, 9. FEDERAL COURT. foreclosure of mechanic's lien in, 599. FEE. attorney's. See tit. Attorneys' fees. liability of, for improvements by trespasser, 484. subject to mechanic's lien, 417. FICTITIOUS DEFENDANTS. dismissal, 725, note. 936 • GENERAL INDEX, FILING. claim of lien. See tit. Claim of lien, as to, generally, 370. after statutory period for inchoate right to lien ceases, 371. cessation of work. See tit. Notice of completion or cessation of work, claim must be filed under act of 1893, 370, note. notice of completion. See tit. Notice of completion or cessation of ■work. original contract void, as to, generally, 375. necessity of, 375. place of filing for record, as to, generally, 375. in case of railroad, 375. removal of claim from recorder's office, 375. principal contractor not required to serve notice, 371, note, purpose of requiring claims to be filed within certain time, as to, generally, 372-374. in case of void contract, 374. removal of claim from recorder's ofl&ce, 375. statutory provisions as to, 372. time of. as to, generally, 376. abandonment of the work, on. as to, generally, 386. abandonment by contractor, 387. in case of an actual abandonment, 387. actual completion, 386. agreements affecting, as to, generally, 388. giving credit, 388. instalments maturing during progress of work, 389. certificate of architect, 386. claim not filed in time when, 378. computation of. as to, generally, 378. effect of " within," as used in statute, 378. contractor cannot keep alive or revive right by tacking or adding, 377, note, delivery of additional material, effect on right, 377, note, effect of superintendent's certificate of completion, 377, note, filing after completion, 379. first and last day for computing time, 378. furnishing of additional articles by agreement, 376, note, grading, etc. See tits. Grading; Street improvement, as to, generally, 392. I generatj index. 937 FILING. Claim of lien. Time of (continued). in case of mines and mining claims. See tit. Mines and mining claims, as to, generallj', 391. where claimant furnishes materials, 392. where claimant performs labor, 392. subsequent contract for material, effect of, 377, note, substantial completion, 386. thirty days' cessation from labor, as to effect on right, 387. default of building contractor or owner affecting running of statute of limitations, 387. subclaimants to file when, 388. under act of March 27, 1897, 370, note, under void contract, as to, generally, 389. burden of determining whether contract valid, 390. where statutory original contract void, 390. when not fixed by statute, 378. where extra work is done or material furnished, 376, note, time when statute of limitations begins to run against, 370, note, duty to file, on whom cast, 230. necessity and object of filing, 230. non statutory original contract need not be filed, 204. object of. as to, generally, 230. statute requiring, 231. of statutory original contract, 227. original contract, provision requiring, valid, 38. plans and specifications referred to as part of contract to be filed, 232. reference to matters dehors the contract, eft'ect of, 232. sufiicient filing, what constitutes, 234. whole contract must be filed, 232. FINAL CERTIFICATE. See tit. Certificate. of architei-t. owner cannot waive, '>'-, note. FINAL INSTALMENT. See tit. Premature payments, as to, generally, 567. FINAL PAYMENT. fund for, only money available to lien claims, 472. twenty-five per cent set aside for, 473. FINDINGS. as to, generally, 736, 795. as to admitted facts must be disregarded, 742. 938 GENERAL INDEX. FINDINGS (continued). as to completion of building, 738, note. as to extent of land necessary for convenient use and occupation, 736, note, as to, upon mistake in claim, 736, note, attack on, not allowed when, 748. conflicting evidence as to, not reviewed on appeal, 796, note, construction of, 738, note, contradictory finding. as to, general]}', 743. as to party furnishing material, 743. as to performance of contract, 744. court approving and adopting those of jury, 738, note, defective findings, 739. failure to find upon material issue, error, 737, note, immaterial issues. as to, generally, 741, amount due when nothing is alleged to be due, 741. another action pending when none has been sot up, 741. as to facts admitted, 742. completion of work, where not raised by the pleading, 742. contract out of issues, 741. performance, when not put in issue, 742. in consolidated action, 744. in equity case, not disturbed when, 796, note. in terms, that persons were not original contractors, 797, note, issues to be found upon. as to, generally, 737. failure to find upon material issues error, 737, note. fixtures. as appurtenances, 737, note, as part of building, 737, note. liens paid by owner, 737. money due, 738. notice of action, 737. performance, 738. priorities, 737. promise to pay, 738. proper defense, 737. use of materials, 737. value, 738. void contract, 738. may not be attacked when, 748. not disturbed. as to terms of composition agreement, 796, note. where evidence reasonably supports, 796, .note. GENERAL INDEX. 939 FINDINGS (continued). Of agency. as to request of owner, 747. as to void contract, 747. insufficient when, 746. what sufficient to support, 746. of facts and conclusions of law. as to, generally, 745. as to property being operated as one mine, 745. as to void contract, 745. on appeal from order denying motion for new trial, 798. on consolidation of actions, 728. on main material fact, 796, note, presumption. in favor of, on appeal, 736, note. on appeal, as to, 793. provisions of code as to, 736, note, referees', not disturbed when, 796, note, segregation of items of contract price, 743. substantial conflict in evidence, not disturbed, 796, note, sufficient to support judgment. as to, generally, 746. as to payment, 746. that building constructed upon leased ground by tenants, 798, note, that claim of lien filed by material-man was in due form, 797, note, that materials of a specified value were furnished, 792, note. to cover entire issue. as to, generally, 738. abandonment of, as to, 739. completion of building, 739. conditional compensation, 739. date of completion, 738. prevention of performance, 738. ultimate facts to be found. as to, generally, 739. completion, 740. estoppel, 741. invalidity of contract, 740. issue of damages for breach, 740. substantial performance, 740. upon consolidation, 736, note. verdict not set out as being against evidence, 797, note, when objections to, not considered on appeal. as to, generally, 795. from order denying new trial, 795, note. rule applied, 795, note. to character of the work, 795, note. 940 GENERAL INDEX. riNDINGS. When objections to, not considered on appeal (continued), to date of completion, 795, note. to failure of contractor to complete building within time, 795, note, to finding. as to alteration of contract, 796, note. as to contract, 796, note. as to extra work, 796, note. as to losses, 796, note. as to value of extra work, 796, note. based on conflicting evidence, 796, note. that work of trifling character was done after date of comple- tion, 796, note. value and amount of money in hands of owner, 796, note, to paj'ment of money due, 795, note, who cannot attack, 798. FINDINGS OF FACT. See tit. Findings. FIRST MECHANICS-LIEN ACT. as to, 4, note. FIXTURES. as to, generally, 148. become property of owner of realty when, 429, note. character of building as determined, 148. cover for stovepipe-flue not a, 94, note. evidence as to. intention of party, 674. permanency, 674, note, findings as to, 737, note, furnace becomes a, when, 94, note, intentions of parties determines, 149, note, material-man's lien for, 94. principles of determination of, 149. question of fact relating to, 148. work upon. deemed to be done upon the property, 151. in a mine, lien for, 152. FORECLOSURE OF LIEN. See tit. Remedies. against property and fund, 585, note, appeal from judgment on. See tit. Appeal. attorneys' fees allowed on. See tit. Attorneys' fees. demurrer. See tit. Demurrer, for labor on threshing-machine, 585, note, gist of, 614, note. lis pendens. See tit. Lis pendens. I generaij index. 941 FORECLOSURE OF LIEN (continued). manner of commencing action for. as to, generally, ;")99. suininons. See tit. Summons, as to, generally, 600. alias summonses in consolidated action, 600, note, appearance of infant, 600, note, publication of, 600, note, service of. as to, generally, 600, note, by publication, 600, note. on cross-complnint unnecessary, 600, note, on one spouse, where community property involved, 600, note, sufficiency of publication of, 600, note. time of service of, on foreign corporation, 600, note. nature of action for, 19, 585. personal judgment allowed in action for, 584, note. place of commencing. See tit. Place. questions of title not adjudicated in, 750, note, stating cause of action. See tit. Complaint, time of commencing. See tit. Time. FORECLOSURE OF MORTGAGE, See tit. Foreclosure of lien. \ alidity of decrcee on, 751, note. FOREIGN CORPORATION. verification of claim of, by attorney, 362, note. FOREMAN. iu charge of construction, not original contractor when, 61. in idle mine, not entitled to lien, 128, note, of laborers not allowed a lien when, 119. FORFEITURE. See tits. Release of lien; Waiver of lien, by false or excessive claim or notice, as to, generally, 577. claim of lien, as to, generally', 578. construction. of code provision as to, 578. of statutory provision, 578. notice to owner, as to, generally, 578. statutory provision, 577. evidence of, 700. excessive claim not ground of, 734. illustrations of rule as to. as to, generally, 579. excessive material, 579. 9-42 GENERAL INDEX. FORFEITURE. Illustrations of rule as to (continued), excessive price, 579. general rule, in absence of statutory provision, 579, note, non-lienable materials, 579. FORM. See Index of Forms, preceding this Index, and contents of notice, construction, 524. of judgment for deficiency, 762. FORMALITIES. of assignment of claim, 539. FRANCHISE. lien on, under Washington statute, 447, note. FRAUD. evidence of, 700. fraudulent representation, 701. in withholding certificate, by engineer, effect, 188, note. release of lien obtained by, 580. rescission of contract as evidence of, 700. FRAUDULENT REPRESENTATIONS. See tit. Fraud. evidence of, 701. FREIGHT CHARGES. See tit. Cartage. FUND. action against, notice to contractor, 625. action to foreclose lien on property and, 585, note. allegations of no other claim upon, in complaint to foreclose lien against, 643. balance after satisfaction of liens, rights of general creditors, 547. distribution of. See tit. Distribution of fund, garnishment by creditor. See tit. Garnishment, lien on, 15. lien on, of subcontractor who has filed notice with owner, 461, note, objection against parties having prior claim on, 725. payment of balance on deposit in court, 729. priority of lien upon, 461, note, right of owner to retain, 470. FUNDAMENTAL IDEA. of the mechanic's-lien law derived from maritime liens, 5, note. FURNACE. becomes a fixture and subject to lien when, 94, note. II GENERAL INDEX. ^■^'^ " FURTHER ADVANCES." See tit. Future advances. what constitutes, 46U. FUTURE ADVANCES. See tit. " Further advances." mortage for. must be properly made, 460. priority as between, and mechanic's lien, 459. what constitutes " further advances," 460. FUTURE REPAIRS. may be set up iu answer to foreclosure of lien when, 665. GARNISHMENT. See tit. Attachment, as to, generally, 507-509. by creditor, priorities in case of mechanic's lien, 461. by general creditor, 548. notice authorized by statute, 509, note, notice of claim of lien in nature of, 506, note, notice of, under early statutes, 508, note, subsequent to lien, 548. under statute of 1855, 508, note. GAS-WORKS. extent of land subject to mechanic's lien on, 404. GENERAL AGENT. of corporation erecting a building performing no manual labor, no lien, 119, note. GENERAL CREDITORS. attachment or i)rocess by, for materials, 548. balance of fund after satisfaction of lien, 547. cannot attack findings when, 798. claimants losing lien, rights of, ')46. foreclosing lien, sale on, 779, note, garnishment by. as to, generally, 548. subsequent to lien, 548. judgment against owner, 547. not deemed included in an offer of owner to pay amount due con- tractor, 547. GENERAL MANAGER. of niiiiinfj conipanv, who performs manual labor, no lien, 120, note. of trains, who performs manual labor iu other services, entitled to lien, 119, note. 1)44 GENERAL INDEX. GEOLOGIST. not entitled to lien for exploring country surrouuding miiu', 123, note. GOOD FAITH. and open dealings of arbitrators, 183. GRADING. See tit. Street-work, as to, generally, 11.5, 117, 128. allegation in complaint to foreclose mechanic's lien for, 63.5. and street-work under the code provisions, 147. " improvement." in statute giving mechanic's lien does not apply to, 392. meaning of, as used in statute, 128. liens allowed for, 130. meaning of " improves " and " improvement," as used in statute, 128. notice of non-responsibility not required in case of, 441. one of the classes of work for which lien given, 115. permission. of city council when, 130, note. of superintendent of streets, 130. relation of work to structures, 129. " therewith," meaning of, as used in statute, 129. work not enforceable under section, 128. work of, lien for, 95. GRANTEE. of contracting owner, liability under mechanic's lien, 415, note. of deed in escrow, interest subject to mechanic's lion, 417, note. GRANTS. priorities of liens under, 449. GROSS AMOUNT. judgment for deficiency, 762. GUARANTY. of contractor's accounts by owner, not a premature payment, 489. GUARDIAN. as owner, 467, note. authority to confer right to mechanic's lien, 415, note. cannot subject estate of minor to mechanic's lien, 157. HARMLESS ERROR. See tit. Appeal. HAWAII. mechauic's-lien law of, 6, 8, 11, 13. GENERAL INDEX. 945 HEARING. on appeal, in consolidated cases, 802. "HIS CONTRACT." in statoiueiit of claim, refers to claimant, 338. HISTORY. of doctrine of notice to owner or employer, 502. of mechanic's-lien law. as to, gcnerall}^ 1, 4. first mechanic's-lien act, 4, note. unknown to the common law, 4. HOMESTEAD. declaration of, does not defeat right to mechanic's lien, 455. joint action of husband and wife not necessary to create lien on, 45, note, mechanic's lien on, 45, 415, note, priority of mechanics' liens, 454. where not siibiect to mechanics' liens, 45. HUSBAND. See tit. Husband and wife. failure to plead facts in complaint to foreclose lien to bind interests of, 630, note. HUSBAND AND WIFE. as to. generally. 712. as parties to building contract, community property, 161, note, joint action not necessary to create lien on homestead, 45, note, statement of interests of, in claim of lien, 320, note, variance between allegation of complaint and proof as to. See tit. Variance. ICE-BOX. l)ecomes part of a building, entitling to lien, when, 151. lien for installing, 151, note. ICE PLANT. material-man placing, in situ, lien, 82. ICE-ROOM. luiilt in and attached to a warehouse, lien upon, 140, IDAHO. mechanic's-lien law of, 6, 13. IMMATERIAL VARIANCE. See tit. Variance, as to r-laim and proof, 717-719. Mech. Liens — 60 946 GENERAL INDEX. " IMPAIRING OBLIGATIONS OF CONTRACTS." as to, generally, 40. IMPEACHING RECORD. publication of notice of sale, 778, note. IMPLICATIONS OF LAW. need not be stated in claim of lien, 309, 335, note. IMPLIED AGREEMENT. See tit. Implied contract. as to price, 340. IMPLIED CONTRACT. See tit. Non-statutory original contract. action on, evidence, 705. as to price. 202. for labor and materials, as to, 202. original. See tit. Original contract. variance showing express contract immaterial, 718. IMPROPER ALLEGATIONS. See tits. Answer; Complaint. foreclosure of mortgage, setting up action to, in answer, 661, note, 663, 667. stricken out of answer, 661, note. IMPROVEMENT. definition of, 117. distinct from the land, 319, note. meaning of, as used in mechanic'slien law, 136, 137, note, notice or knowledge of, raises estoppel when, 434. refers to object, 117. sale and removal of, constitutionality of provision of statute for, cannot be raised for first time on appeal, 800, note. INCHOATE. contract for street improvement, 165. right. assignment of, 538. elements creating, strictly construed, 28. to lien, ceases after period for filing, 371. to mechanic's lien, construction, 29. statutory original contract is, when, 227. INCLINES. See tit. Mines and mining claims. Irne significance of word, 127. INDEBTEDNESS. See tit. Demand. GENERAL INDEX. 947 INDEFINITE CONTRACT. variance bttwcen pleading and proof as to, material, 720. INDEFINITENESS. of contract, 163. INFANT. as owner, 467, note. where parties to an action to foreclose lien may appear by general guardian, 610. INFERENTIAL STATEMENTS. See tit. Statement, as to, generally, 328. INJUNCTION, against sale. of property on foreclosure of lien, where wife not made party, 592, note, under other process to protect mechanic's lien, 592, note, amendment affecting, 726, note, fund not deposited in court, 592. in action to foreclose lien, 592. INSOLVENCY. assignment of claim in case of, 545. INSTALMENT. contract of owner to pay in, liability for breach of, 492, note, maturing during progress of work, effect on time of filing claim, 389. non-payment of, liability of owner for, 470. INSTANTANEOUS SEIZIN. as to doctrine of, 46, note. INSTRUCTIONS. See tit. Trial by jury. INTENT TO ENFORCE A LIEN. need not be present when materials furnished, 18, note. INTEREST. after maturity, variance as to, 718. allowed on sum awarded, 754, note. allowed only from date of lien claim, 754, note. as damage, and action on contractor's bond, 569, note. as to, on foreclosure of lien, 753. bound. by estoppel, 415, note. by mechanics' liens. See tit. Limitations on liens. f 948 GENERAL INDEX. INTEREST (continued), contractor. entitled to, 754. liable for, when, 491. deposit in court by owner, relieves from, 492, note, in land. See tit. Land, in property, uncertainty of, objection for, cannot be taken for first time on appeal, 801. materials furnished from time to time, on. as to, generally, 754. what within the rule, 754. of subcontractor's claimant, charged against subcontractor, 755. on claim from date of filing complaint, 753, note, on unliquidated demand, 755. on valid contract, 755. owner may set off costs and, against contractor when, 769. properly allowed on sum awarded, 754, note, relief from, by payment into court, 753, note, 755. subclaimants entitled to. as to, generally, 753, note. in case of unliquidated claims, 753, note. INTERLINEATION. in contract, as to effect of, 258, note. INTERMEDIATE INSTALMENTS. See tit. Premature payments. as to, generally, 566. INTERMEDIATE LIEN-HOLDERS. one of the tests of " original contractor," 59. INTERVENTION. by claimants after suit commenced, 730, note. effect of, 729. general principles of, 729, note. right of, 730. INVALIDITY, of contract. as to, generally, 251. cannot be basis of recovery by contractor, 252. classes affected by, 251. effect as between the parties, 251. finding as to, 740. intent of statute, 251. of original contract, how shown, 694. of statutory original contract, effect of, 250. GENERAL. INDEX, 949 IRRIGATION DISTRICT. labor upon, for which lien is given, 114, note. ITEMIZING. See tit. Items of account, of statement of demand. exhibiting or itemizing statement made part of claim, 314, note, in case of material-men, former rule, 314, note, unnecessary, 313. ITEMS OF ACCOUNT. See tit. Itemizing. in claim of lien of contract for work and materials, 342. must be set forth in order that judgment may be rendered for, 750, note. JOINDER OF CAUSES OF ACTION. See tit. Pleading and pro- cedure, actions that are to be united in one complaint, 649. designating causes of action separately, 648. in complaint, 648. objections to. how raised, 650. must be taken by answer or demurrer, 650, note, reference of one cause of action to another, sufficiency of pleading, 649. several mining claims involved, 648. JOINT ACTION. of husband and wife, not necessary to lien on homestead, 45, note. JOINT AND SEVERAL. See tit. Contract. JOINT CONTRACTORS. apportionment between, 523. JUDGMENT. See tit. Decree. against owner by general creditors, 547. and costs in action against agent, setting up as defense to fore- closure of lien, 664. as estoppel. See tit. Evidence. cannot be rendered for items not set forth, 750, note, conclusiveness of, 750, note. curing improper, by filing disclaimer, 750, note, decree foreclosing lien creates a, upon premises, 751, note, default against owner, 756. deficiency. See tit. Deficency judgment. double, 750, note, entry of, efifect on lien, 576. 950 GENERAL INDEX. JUDGMENT (continued), extent of lien of, 764. finding sufficient to support, when, 746. for not more than demanded, 750, note. for proper amount, not reversed on appeal for excessive claim without fraud, 802, note, impressing fund due contractor, owner without complaint, 626, note, in an action at law, 764, note, interest on. See tit. Interest, kind of money in which to be satisfied, 752. manner of executing, 779. modification of. default, 755. on appeal, enforcing lien, 802, note, must be against original contractor, 751, note, objecting to, against contractor not appealing, 799. personal. See tit. Personal judgment. plaintiff not entitled to interest on, prior to verdict, 755, note. recitals in, 763. recovering not more than demanded, 750, note, remitting portion of, 750, note, right to a money, 577. title, questions of, not adjudicated in, 750, note. JUDICIAL NOTICE. as to, generally, 674. as to incorporation of city, 675. as to laws of nature, 675. as to mining instrumentalities, 675. as to rules of mensuration, 675. JURISDICTION. amount less than jurisdictional limit, 598. costs in action to foreclose lien for less than jurisdictional amount, 599, note. of superior court to render personal judgment. in suit of foreclosure, 761. when, 49. superior court has, to foreclose lien, 598. to foreclose mechanic's lien, 598. JURY. drawing inference from facts, 175, note. findings of, approved and adopted by court, 738, note. question of liability of surety and the amount of damages. is for, 569, note, trial. See tit. Trial. f I GENERAL INDEX. 951 JUSTIFICATION, of abandonment, 290. KINSHIP. between meehanic's-lien statutes, 15. KNOWLEDGE. See tit. Agency. of improvement by owner, allegation as to, in action to foreclose mechanic's lien, 629. of lack of authority of employer, as to whether waiver of lien, 575. of owner. immaterial issue when, 742. of performance of work need not be stated in claim of lien, 309. LABOR. See tits. Labor for which a lien is given; Laborer; Mines and mining claims; Work. " bestowed," meaning of, as used in statute, 116. claim for, performed by the day, at agreed price amounting to more than one thousand dollars, 342, note. classes of. for which lien is given, 115. not mutually exclusive, 116. contract for, 61. contract to furnish other, 62, note. for which lien is given. See tits. Labor for which a lien is given; Object on which labor must be performed. "bestowed," definition of, 116. clause of statute under which falls, must be fixed, 116. mutually exclusive, classes arc not, 116. " construction, alteration, addition to, or repair." See tit. Con- struction, alteration, addition to, or repair, alteration, and adding new part, 122. character of alteration, 121. distinction between " alteration " and " repair," 121. importance of determining to which class work belongs, 121. definition of. " improvement," 117. labor " bestowed," 116. divisions of objects upon which labor performed, as to, generally, 115. in grading, 115. in mines, 115. upon structures, 115. grading. as to, generally, 115. and other work, generally, 117. " improvement," meaning of, in statute, 128. I 952 GENERAL INDEX. LABOR. For which lien is given. Grading (continued). " improves," meaning of, in statute, 128. lien. allowed when, 130. for grading street in front of road, 129, note, meaning of words "impro\e" and "improvement," 128. permission to do work, 130, note, relation of work to structures, 129. structures and other work, 118. under the California statute, 128. work not enforceable under section, 128. " improvement," definition of, 117. irrigation district, as to, 114, note, labor for which lien cannot be given in any event, as to, generally, 130. book-keeper in mine, 91, note, cooking for men employed on work, 131. geologist exploring around mine, 123, note, laborer of material-man, 132. preliminary work, 130. teaming for material-man, 132. testing legitimate work connected with improvement, 132. watchman in mine. See tit. Watchman, mines, second clause of California statute, 115. object on which must be performed. See tit. Object on which labor must be performed, one class of work specified in statute, all others impliedly excluded, 114, note, statutory provisions, as to, generally, 114. first clause of California statute, 114, structures, 114. structure. grading and other work, 118. in mines, as to, generally, 115, liens allowed. as to, generally, 118. for gas-fitting, 119, note. for painting, 118. for papering, 118. for plumbing, 118. general manager of trains performing manual labor entitled to lieu, 119. to contractor, 118, note. to foreman of laborers moving house, 119, note, to overseer, not performing manual labor, no lien, 119, note, to overseer performing manual labor,' 119, note, to subcontractor, 118, note. GENERAL INDEX. 953 LABOR. For which lion is given (continued). work in mines and mining elain-.s. See tit. Mines and mining claims, as to limitations upon work done, 122. " chutes," true significance of, 127. constructing road, no lien for, 123, note. construction, alteration, or repair of mine, strictly none, 125. " crosscuts," true significance of, 127. custodian to see mining property not destroyed, does not per- form " work," 124, note, drifting. See tit. Drifting. as to, generally, 126. geological expert exploring and examining surrounding country not entitled to lien, 123, note. " inclines," true significance of, 127. " levels," true significance of, 127. liens allowed for, 123. mining experts exploring surrounding country not entitled to lien, 123, note, "mining superintendent" distinguished from "superintendent of a mine," 124, note. notice of non-responsibility. See tit. Notice of non-responsi- bility, as to, 125. professional services in mine, 123, note, running a tunnel. See tit. Tunnel. as to, generally, 127. "shafts," true significance of, 127. sharjjening picks, lien allowed for, 124. " stopes," true significance of, 127. superintending construction, lieu allowed for, 123, note, tunnel, work in, 125. watchman in idle mine, no lien, 127. work as a miner in development, etc., 125. for which lien is not given in any event. as to, generally, 130. bookkeeper in mine, 91, note, cooking for employees on work, 131. geologist exploring around mine, 123, note, labor for material-man, 132. preliminary work, 130. teaming for material-man, 132. watchman at mine. See tit. Watchman, general essential as to, 86. importance of fixing class under wliicli particular work falls 116. nature of. See tit. Nature of labor, as to, generally, 7, note. T 954 GENERAL INDEX. LABOR (continued). object of. See tit. Object of labor. object on which must be performed. See tit. Object on which labor must be performed, of material-man, lien for, 85. on mining claim. See tit. Mines and mining claims. as to, generally, 5. destructive, not constructive, 7, note, placing in situ, right to lien, 56. statement of price of, in claim, 340. various items of, successive claims for, cannot be filed, 301. LABORER. See tit. Labor. constitutional provision as to, 101. contract between, and original owner is not an " original contract," 16.5. death of employer. effect of rights of, 105. notice of, effect of, generally, 105. definition of the various kinds of, 102, 103, note, distinction between, and material-man, 93. distinguished from contractor, subcontractor, and material-man, 101. does not create intermediate lien-holders, 101. employment as carpenter at fixed rate per day, aggregate wage in excess of one thousand dollars, effect, 104. general. obligations of, 105. rights of, 104. nature of labor for which lien given, 103. not entitled to lien, liability of sureties on contractor's bond to, 550, note, of material-man, 105. owner's, action to foreclose lien by, 589. personal services only contemplated, 102. priorities of, 105. public work, on, 105. LAND. affected by mechanics when building destroyed or removed, as to, 397. and reduction-works, a unity, 399, note, description of, objection to, cannot be raised for first time on appeal, 801. distinct objects on, lien, 404. effect of failure to define extent of, 765. held under. agricultural patent not within statute, 146. Spanish or Mexican grant not within statute, 145. GENERAL INDEX. 955 LAND (continued). interest in, when can be ordered sold, 762. " mining claim," as to whether includes deeded land, 145, note. necessary. See tit. Convenient use and occupation. for convenient use and occupation to be ordered sold, 766. to designate amount to be sold, 765. payment in, under non-statutory original contract, 206. LANDLORD. mechanic's lien on interest of, created by tenant, 532, note. LAST PAYMENT. thirty-six days after completion, sufficient compliance in statutory original contract, 213. LATENT EQUITIES. effect on assignment, 543. LAW. applicable, as to, generally, 31. implications of, need not be stated in claim of lien, 309. LEASE. secret agreement in, effect on mechanic's lien, 425. under which lessor has no interest, interest of lessor not subject to mechanic's lien, 420, note. LEASEHOLD ESTATE. mechanic's lien attaches to, 319, note. subject to mechanic's lien, 332, note. surrender of tenant will not defeat lien, 332, note. LEASE-HOLDER'S INTEREST. sale of, on foreclosure of lien, 782. LEGAL OWNERSHIP. mistake as to, in claim of lien, effect, 320, note. LEGAL SERVICES. fees for. See tit. Attorneys' fees, relation to action, 775. LEGAL TITLE. contract by holder of, effect, 57. LEGISLATURE. cannot extinguish the constitutional mandatory lien, 202, note, intent of, arrived at how, 21, note. 1)56 GENERAL INDEX. LEGISLATURE (continued). may forbid payments to contractor as against subelaimants, 37. may prescribe form in which contracts shall be executed, 37. may require recording of contract as condition of validity, 37. LESSEE. contract by and for benetit of, of a mine, bound, 422, note. in possession. making improvements, estoppel, 435. power to bind estate by mechanic's lien, 419. interest bound by mechanic's lien, 421. working mines by, lien of persons performing labor, etc., 43. LEVELS. See tit. Mines and mining claims, true significance of word, 127. LIABILITY. of sureties on contractor's bond to laborers and material-men not entitled to lien, 550, note. LIBERAL CONSTRUCTION. See tit. Construction. LIEN. See tits. Claim of lien; Mechanic's lien. agreement of contractor not to file, 2 99, note. allowed for work in mine, 123. amount that may be recovered under valid, 67. as limited by contract, 244, note. as to lien on several lots, 394, note. as to materials being such as contract calls for to entitle to, 247, note. as to validity of demands and regularity of, 680, note. attaches when, 451, note. by contractor. See tit. Contractors. by laborers for work done. See tit. Laborers. by material-men. See tit. Material-man. by mechanics. See tit. Mechanics. by subcontractor. See tit. Subcontractors. cannot date back of commencement of work, 279, note. change of theory as to the base of right to a, 784, note. claimant's right to, how determined, 42, note. commences when labor or materials began to be furnished, 42, note. constitutional right to, 52. definition of, 293. destruction of building by fire before completion. See tit. Destruc- tion of building, effect on, 269, note. direct, in Colorado, 12, note. GENERAL IXDEX. 957 LIEN (continued). extent of. See tit. Limitation on liens. on decree of foreclosure. as to, generally, 764. statutory provision as to, 764. extinction of. See tit. Extinction of lien, failure to perfect, relates back, 451, note, first act giving a lien, 4, note, for constructing wagon-road to mine, none, 12.3. for inferior materials used in improvement, 247, note, for labor, etc., limitation on power of legislature to give, 38. forfeiture of. See tit. Forfeiture of lien. geologist exploring surrounding country, not allowed to, 123, note, in contract involving construction of buildings on separate lots, 299, note, inchoate right to. ceases when, 371. construction, 29. interest allowed on, only from date of, 7.o4, note, limitation of. See tit. Limitation on liens, logger's, as to law giving, 48, note. mechanic's, a favored, 9. mining expert, exploring surrounding country, not allowed a, 123, note, nature of claim of. See tit. Claim of lien, new act repealing old law, effect on existing right, 43, note, new claim of, not necessitated by change of ownership, 299. none attaches until claimant files statement, 451, note, none under void contract for extra work, 195. not acquired until claim filed, 42. not waived by sureties when, 572, note, notice to owner as condition of, 292. object or thing to which attaches, 13. of architect. See tit. Architect, of mechanics. See tits. Mechanic's lien; Mechanic's-lien law. a favored lien, 9. classification of. See tit. Classification. for work done does not attach to public property, 153. general nature of, 10. of original contractor. paid after liens of his subclaimants, 68. preferred to other liens, 68. of subcontractor, where amount of claim included by contractor, 77. on franchise, under Washington statute, 447, note, on homesteads. See tit. Homestead. on land or structure. as to whether is, 3, note. conflict in the decisions, 3, note. 958 GENERAL INDEX. LIEN (continued). on mines. See tit. Mines and mining claims. on public property, none, 200. on structure separate from fund, 14. on the fund, 15. on two or more buildings. See tit. Two or more buildings. one doing work as subcontractor before law went into effect, 43, note. one or more claims of, necessity for, 298. original contractor entitled to, when, 67, note. paid by owner, finding as to, 737. persons joining in, 299. primarily on structures, 1.51. prior, contractor must inform himself as to, 4.51, note. priorities between mechanic's, and mortgages, 299, note. professional services on a mine, allowed for when, 123, note. re-enactment of prior law somewhat modified, effect on existing claims, 44. relates back to time work was done or materials commenced to be furnished, 449, note, relation of, to debt, 17. release of. See tit. Release of lien. right to, determined by nature of improvement, etc., 43, note, rights under, how ascertained, 44, note, separate claim not required on change of ownership, 299. specified classes of work for which given, impliedly excludes all others, 114, note, statute must be strictly complied with, 4.51, note, subjects of mechanic's lien, 417. superintendent of construction, allowed for, 123, note, territorial extent of. See tit. Limitation on liens, time of filing, change of, by subsequent statute, effect, 44. unknown to the common law, 4. upon building distinct from land when, 151, note. void, cannot be converted into valid, by consent, 16, note. waiver of. See tit. Waiver of lien, where contract involves construction of buildings on separate lots, 299, note, 300. where materials not of quality required to be used in building, 247, note. where materials suitable for building, 247, note. LIEN CLAIMANT. intervention of, after suit commenced, 730, note. must follow statute, 255. other than original contractor, 254. proper parties in action to foreclose lien, 608. GENERAL INDEX. 959 LIEN CLAIMANT (continued), surety as. as to, gencnilly, 561. under legal obligation not to foreclose, 562. when may attack prior encumbrances, 460. where there is no contractual relation, 254. LIENABLE AND NON-LIENABLE ITEMS. effect of commingling, 316. LIEN-HOLDERS. defective claim of lien as notice to bona fide, 538. other than claimants, rights of, 537. LIENORS. prior, proper parties in action to foreclose mechanic's lien, 609. LIMITATION. See tit. Statute of limitations. LIMITATION OF ACTION. See tit. Statute of limitations. LIMITATIONS ON LIENS. estates and interests subject to liens, as to estoppel. estates or interests bound by, as to, generally, 428. general principles of estoppel in pais, 429. general purpose of mechanic's-lien law, 429. general rule as to when notice of non-responsibility must be given. See tit. Notice of non-responsibility, person not contracting directly or through agent not liable, 429. statutory provision, 429. wife's property bound by husband's act when, 430, note. by contract. as to, generally, 415. agency, statutory, 416. as to authority. of executor, 415, note. of guardian, 415, note. of persons acting in representative capacity. 415, note. of trustee, 415, note. as to oreation of right to mechanic's lien by minors and others under personal disability, 415, note, as to estates or interests affected by, 415, note, as to right of licensee, 415, note, coninuuiity property bound when, 426, note, equitable estates, as to being charged with lien, 415, note, estates or interests bound by contractual relation with holder, bound by estoppel. See " As to estoppel," this title, statutory provision. 415. 960 GENERAL INDEX. LIMITATIONS ON LIENS. Estates and interests subject to liens. By contract (continued). fee subject to lien, 417. grantee of contracting owner, liability as to mechanic's lien, 415, note. homestead bound. See tit. Homestead. as to, generally, 42.5. before amendment of 1887, 425, note. mechanic's lien on, 415, note. since amendment of 1887, 426, note, interest. of lessee bound by. as to, generally, 421. and tenants for life, mechanic's lien on, 416. note. contract made for benefit of lessee of mine, 422, note. mining lease with option of purchase, 422, note. of a mine, 422, note. secret agreements of lessee, 425. under act of 1862, 423. under lease for ordinary development-work, 422, note. where nothing capable of removal from premises, 424, note, of vendee in possession bound by, 421. joint tenants and tenants in common, mechanic's lien in case of, 416, note. lease in which lessor has no interest, 420, note, leasehold estates, mechanic's lien on, 416, note, legal title subject to lien, 417. lessee in possession. as to, generally, 419. contract to perform labor upon mine, 419, note. on lease of mine, 419, note, mining claim subject to lien, 418. ownership or relation to property sufficient to bind by mechanics' liens, 416, note, separate property of wife bound when, 426, note, statutory agency, 416. tenant, power to bind fee, 416, note, title being held in trust, 420. under act of 1855-56, 415, note, vendee in possession, 418. what interest or estate mechanic's lien attaches to, 416, note. lien as limited by contract, as to, generally, 409. contract as notice, 411. contract of subcontractor. as to, generally, 412. claimants under subcontractor, 41.3. general interpretation of statutory provision, 410. I GENERAL INDEX. 061 LIMITATIONS ON LIENS. Lien as limited by contract (continued). " price," as related to the phrase " for the value " giving lien, 411. statutory provisions relative to, 410. " value " in statute giving lien, use of, in relation to '" price," 411. lien clainied as against interest of a minor, 409, note. on leasehold estate. as to, generally, 394, note. surrender by tenant does not defeat lien, 394, note, priorities. See tit. Priorities. " property " extent of lien, 394. property viewed as an entirety. as to, generally, 402. canals, rule as to, 404-406. distinct objects on one parcel of land, 404. false representations as to ownership of building, effect on lien, •407. gas-works, rule as to, 404-406. general rule as to, 403. lien on building alone, as to, generally, 407. false representations as to ownership, 407. lien on portion of structure, 403. machine, rule as to becoming fixture, 403. mines and mining claims, as to, generally, 408. general rule in reference to, 408. material-man not limited to separate structure in, 408, note, railroad, rule as to, 403-406. water-works, rule as to, 404-406. territorial or " property " extent of lien, as to, generally, 394. fair-ground tract, as to amount of land necessary, 396, note, land affected when building destroyed or removed, 397. mines and mining claims. See tit. Mines and mining claims, adjacent non-mineral land not included, 399. lion attaches to what, 398. machinery used in. as to, generally, 400. before amendment of 1907, 400. effect of amendment of 1907, 401. several mining claims operated as one mine, 399. railroad, the width of strip on either side necessary. 396. note, space for convenient use and occupation. See tit. Convenient use and occupation, as to, generally, 395. court may exercise judgment when, 39G. Mech. Liens — 61 962 GENERAL INDEX. LIMITATIONS ON LIENS. Territorial or "property" extent of lien. Space for convenient use and occupation (continued), liens confined to what, 396. the words " convenient use and enjoyment " equivalent to what, 395. statutory provisions as to, 395. structures, land necessary for support of, 396. to what lien attaches, 394. LIQUIDATED DAMAGES. as to, generally, 186. pleading under conti-act for, 647, note. provision for, in contract does not alone justify recovery, 695. LIS PENDENS. not necessary to file in action to foreclose mechanic's lien, 601. LOGGER'S LIEN. as to law giving, 48, note. LOWER COURT. fixing attorneys' fees in supreme court, 776. LUMBER. below contract requirement, rights of owner, 247. MACHINERY. furnished as a material-man, 143, note. lien upon, when, 143. pumps for water-works, 143, note. things affixed to other works within rule, 143, note. written contract to furnish, at fixed price, construction, 177, note. MACHINISTS. See tit. Laborer. definition of, 103, note. MALPERFORMANCE OF WORK. contractor, testimony of, in rebuttal on charge of malperformance of work, 694, note, evidence of. as to, generally, 694. of architects, 694. of carpenter, 694. testimony of contractor in rebuttal, 694. MANAGER. of corporation erecting a building performing no manual labor, no lien, 119, note. GENERAL INDEX. 963 MANTELS. material-man placing, in situ, lien, 82. MARSHALING ASSETS. of sale, order of, 778, note. MATERIAL ISSUE. failure to find on, error, 737, note. MATERIAL-MAN. See tit. Materials, as to who is, 80. as to who is not, 80. burden to prove amount due exceeded amount paid, 680, note, circumstances under which lien for materials is given to. as to, generally, 83. alteration, construction, addition to, repair, classes of work to be distinguished in claim of lien, 92. as affected by original contract, 85. as to passing of title to materials, 83, note, building as " material furnished," 92. cartage, where paid as portion of cost of material, 91. charges for carriage of materials, included in lieu, 91. contract. for labor in connection with, 85. for sale of, 85. out of state, 84. cost of placing material in situ, 91. extent of alteration or repair, 93. fixtures, 94. formalities regarding contract, 85. " furnished," when delivered or ready for delivery, 88. general essentials as to material furnished, 86. lumber used in building temporary houses in construction of rail- road, not subject of lien, 89. materials. See tit. Materials. delivered in package, though portion only used, basis of lien, 90. furnished. for mine, 94. for street-work, 95. not fit for purpose, lien denied, 86, note. sold and delivered out of state, 84, note, mines and mining claims. See tit. Mines and mining claims. materials for, 95, 96. nature. and manner of use of materials, 86. of property for which materials furnished, 95. of work on property for which materials furnished, 92. 964 GENERAL INDEX. MATEEIAL-MAN. Circumstances under which lien for materials is given to (continued). patterns used in manufacture of couplings not basis of lien, 90. powder used in blasting, lien for, 90. required to be furnished for the particular building, 84, note. to be furnished according to plans and specifications, 85, note. use of materials, 83. used in structure, must be, 88. contract between, and owner is not an " original contract," 165. contractor's order in favor of, where building destroyed by fire, 196, note, definition of, 80. distinction between. and laborers, 93. and original contractor, 62, 64, 81, 83. and original contractors and subcontractors, 79. laborers and, 93. distinguished from. original contractor, 79. subcontractor, 73. effect on, of indemnifying owner against liens, 477, note, employees of, preparing materials not subcontractors, 74. failure to file notice with school board, 370, note, finding that claim of, was filed in due form, 797, note, furnishing material for a group of buildings, lien, 404, note. general. obligations of, 98. rights of, 97. knowledge of terms of original contract, effect upon, 83, 99. laborers of, generally, have no lien, 105, 132. lien. for materials furnished in mines and mining claims, 96. of, enforcement independent of contract, 97, note. materials must be such as contract calls for, to entitle to lien, 247, note, may have execution, etc., against materials furnished not actually used, 98. no interest in fund provided by contractor against liens, 74, note, not entitled to lien, liability of sureties on contractor's bond to, 550, note, not limited to separate structure in mining claim, 408. not merely subrogated to rights of original contractor, 75, note, not usually an original contractor, 60. original contractor when, 55, 63. owner's. action to foreclose lien by, 589. must file claim of lien when, 384, note. I GENERAL INDEX. 9fif» MATERIAL-MAN (continued). |)ersi)iial action against purchaser of material, 97, note, placing materials in situ, as to rights, generally, 81. in ease of electric plant, 82. in case of ice plant, 82. in ease of steam plant, 81. in case of tiling and mantels, 82. in furnishing machinery, etc., in mine, 81, note, priority over subcontractors under same contractor, 98. privity of contract between, and owner, 97, note, proof that amount due exceeded amount paid, 680, note, receipt of, expressly stating it to be of " payment by note," effect, 576. right. of action upon bond given by contractor, 98. to lien. is of constitutional creation, 97, note, where contract abandoned, 249, note. where materials not of quality required to be used, 247, note, separate claims for materials cannot be filed by, 301. should not file separate claims for different items of material fur- nished, 301. statutory original contract, provisions in, for payment to, 210. subcontractor's, complaint in action to foreclose lien, 625. teaming for, no lien, 132. MATERIAL VARIANCE. See tit. Variance, in claim and proof, 713-716. MATERIALS. See tit. Material-man. atlditional, delivery of, as affecting right to file claim, 377, note. are required to be furnished for the particular building, 84, note. attachment for, furnished, 548. building as, 92. cartage, charges for. See tit. Cartage. circumstances under which lien given for, 83. construction of word, as used in claim, 342, note. contract. by public body to provide, construction, 174. for, out of state, 84. contractor cannot keep alive right by giving additional orders for, 377, note, deer and bear meat furnished to laborers, not, 89. description of, furnished, 342, note, excessive claim for, effect on lien, 579. for alteration and repair. See tit. Alteration or repair. 966 GENERAL INDEX. MATERIALS (continued). foreclosure of lien for, allegations. as to, generally, 632. affixed and attached, 633. dates on whicli materials furnished, as to, generally, 634. " on or about," sufficiency of allegation, 634. defect in complaint waived how, 633. reference to claim of lien as exhibit, 633. furnished. before filing contract, 242, note. by owner as part payment, 216, note. for a group of buildings, lien for, 404, note. for mines and mining claims. See tit. Mines and mining claims. for street-work, 95. for work in mining claim, claim of lien, 295. from time to time, interest on, 754. under separate contracts, not necessary to recite in claim of lien, 317, note, furnishing. improper, by owner, 269, note. of, continuous in its nature, 453, note, how used, 88. items of account for, 342. left over. no lien for, 87. otherwise where furnished in a bundle, although portion of bundle only used, 90, 98. lien for. See tit. Lien. inferior, where used in improvement, 247, note. relates back to time when, commenced to be furnished, 449, note, 450, 453. when allowed, 90. liens upon, 143, note, meats furnished for laborers in a mine, not proper subjects of lien, 89. money advanced is not, within provisions of contractor's bond, 559. must be. furnished by contract with owner, 467, note. such as contract calls for to give lien, 247, note. suitable for the purpose for which furnished, 247, note, nature and manner of use of, 86. not fit for purpose, lien denied, 86, note, not of quality required to be used in particular building, rights of material-man to lien, 247, note, of character ordinarily used in such building, lien, 86, note, party furnishing, contradictory findings as to, 743. GENERAL INDEX. 967 MATERIALS (continued), patterns. See tit. Patterns, powder. See tit. Powder, presumption of use, 701, note, right to, upon abandonment of work, 477. setting aside arbitration as to amount due for, 184, note, situ, placing in. See tit. Situ. sold and delivered outside of state to be used in particular build- ing, 84, note, stating quantity of, 318, note, subject to attachment, execution and other legal process, where not actually used in building, 98. subsequent contract for, effect on time of filing lien, 377. substantial compliance with statutory requirement, 318, note, time begins to run against lien for, when, 453, note, tools. See tit. Tools, use in building, evidence of, 701. use of, findings as to, 737. used. elsewhere than in improvement on which lien claimed, 300. in temporary structures, not subject of lien, 89. various items of. as to, generally, 301. interest allowed on. See tit. Interest. successive liens cannot be filed, 301. MATTER IN DISPUTE. questions assuming, 676. MEANING OF WORDS. See tit. Words and phrases, parol evidence to explain, as to, generally, 676. gross ton, 676. MECHANIC. See tit. Laborer. definition of, 102, note. MECHANIC'S LIEN. See tits. Lien; Mechanic's-Iien law. against several buildings, 299, note, 300. application of, to railroads, 301, note, as defense in action to foreclose mortgage, 663. assignability of, 538, note, attaches to a building, in preference to prior mortgage, when, 457, note, constitutionality of, 216, note. does not attach to public property, 153. extent of lien. See tit. Limitation on liens. 968 .GENERAL INDEX. MECHANIC'S LIEN (continued). fails when contract not binding on owner, 159. foreclosure of. See tit. Foreclosure of lien. garnishment of general creditor subsequent to, 548. general purpose of the, 429. guardian cannot subject estate of ward to, 157. impairment of, statutory provisions, 220. mistake as to legal and equitable ownership, effect, 320, note. no equitable lien when, 157, note. notice of claim. See tit. Notice, on community property, 161, note. on land of married woman, 159, note. on landlord's interest created by tenant, 532, note. on leasehold estate, 319, note. on public building, none, 219, 220. on railroad, 352, note. on separate buildings on non-contiguous lots, 300, 317, note. priority. See tit. Priorities. between, and mortgage, 299, note. over deed of trust on canal, 456, note. over mortgage for advances. See tit. Priorities, as to, generally, 447, note. over subsequent liens, 457, note, protection of, by enjoining sale under process, 592, note, right conferred by. See tit. Right conferred by mechanic's lien, right to. by one employed in mine by month, 301, note. enforce and pursue other remedy, 294, note. file, against several buildings, 300, note, setting up, as defense to foreclosure of mortgage, 663. statute of limitations begins to run against, on open account when, 170, note, waiver of, by contract inconsistent with, 216, note, what entitles to lien, 160, note, work must be done or materials furnished under contract, 160, note. MECHANICS-LIEN LAW. See tits. Lien; Mechanic's lien. a favored lien, 9. and mortgage compared, IS. California. See tit. California statute, classification of liens under. See tit. Classification, confusion of authorities as to, 21. construction of statutes giving. See tit. Construction, evolution of, in California, 5. extent of lien, 29. fundamental idea of, 5, note, general nature of lien, 10. GENERAL INDEX. 969 MECHANICS-LIEN LAW (continued), history of. See tit. History, inchoate right to lien, how construed, 29. interpretation of, 52. kinship between the statutes of the various states, 15. lien on structure separate from land, 17. nature and scope of right conferred by, 20. nature of action to foreclose. See tits. Action; Foreclosure of lien. as to, generally, 19. object or thing to which lien attaches, 13. of California, divisions of, 134. peculiarities of, 15. penal provisions in, 26. perfection of the lien, as to, 29. purpose of, to stimulate building, 8, note, relation of lien of, to debt, 17. remedial provisions and statutes, 30. rights under, how ascertained, 44, note, scope of right conferred by, 20. spirit of. See tit. Spirit. theory of. See tit. Theory. MEMORANDUM. See tit. Memorandum of contract, answer failing to deny that none was filed, 798, note, of settlement made by wife acting for community, 680, note, rule as to inadmissibility of parol evidence not applicable to, 692. MEMORANDUM OF CONTRACT. See tits. Memorandum; Statu- tory original contract, statutory provisions, as to, generally, 234. contract or copy thereof as a, 235. description of projx'rty to be affected thereby, 237. erroneously describing adjoining lot, 237, note, expression in, " drawings hereto annexed," construction of, 240. general effect of provisions, 234. must not be too general, 238. names of all parties to contract shall be signed, 236. object of filing the memorandum, 235. payments provided for in, 241. place of filing, 242. purpose. and object of provisions, 235. for which building is intended, 238, note, reference to detailed drawings, 241. referring to plans and specifications, 239. should show what, 238. 970 GENERAL INDEX. MEMORANDUM OF CONTRACT. Statutory provisions (continued), statement. of general character of work to be done, 237. of work, general principles as to, 238. . time of filing, 242. what not required in, 235. where does not disclose there were plans and specifications, 240. MEXICAN GRANT. land held under, not within statute, 145. MILL. on mining claim, included in mechanic's lien, 409. MINERS. See tit. Laborer, definition of, 103, note. MINES. See tit. Mines and mining claims. as to oil-well being, 116, note. furnishing machiner}-, appliances, etc., and installing same, person a material-man when, 64, note, in a mining claim, is a " structure," 139. MINES AND MINING CLAIMS. action to foreclose mechanic's lien where several adjoining, owned by one company, 603. agreement that lessee or purchaser shall iinpro\e at his own cost, 438, note. " any such mine," meaning of term, in statute, 122., note, blacksmith sharpening tools for use in, entitled to mechanic's lien, 91. boarding-house keeper furnishing board to men working in, not entitled to mechanic's lien, 91, note, book-keeper of, not entitled to mechanic's lien for value of ser- vices, 91, note. " completion of," what constitutes, 279. construction, alteration, or repair of mine, as to, generally, 125. notice of non-responsibility, 125. cook in, not entitled to mechanic's lien for value of services, 91, note, 131. custodian of property of, not entitled to lien, 124, note, description of, in claim of lien, 357. drifting in. See tit. Drifting. as to, generally, 126. " drifting in a tunnel," not " construction, alteration, addition to, or repair," within statute, 94. GENERAL INDEX. 971 MINES AND MINING CLAIMS (continued), employment in, by month, lien, 301, note, findings as to property operated as one mine, 745. labor in. generally, 122. nature of, destructive, not constructive, 7, note. performed at request of one alleged to be agent of owner, 630. land held under. agricultural patent not within statute, 146. Spanish and Mexican grant not within statute, 145. lien. not a mechanic's, of mining partner, 16, note. of persons performing labor, etc., 43, note. on, relates back to time when work performed, 451. liens against interest of minor, 409, note, liens allowed for work in. as to, generally', 123. custodian of property' of, does not perform " work " on or in mine, 124, note. for constructing wagon-road, none, 123, note. geologist exploring surrounding country, no lien, 123, note. mining expert exploring surrounding country, no lien, 123, note. " mining superintendent " distinguished from " superintendent of a mine," 124, note. picks, lien allowed for sharpening, 124, note. professional services in mine, 123, note. superintendent of construction, 123, note. work as miner in development, improvement, etc., lien, 125, note. liens attach to what. as to, generally, 398, 408. adjacent non-mineral land not included, 399. boarding-house on claim for workmen included, 409. general rule in reference to mining claims, 408. land and reduction-works a unity, 399, note. machinery used for reduction of ores, as to when included, 400. before amendment of 1907, 400. effect of amendment of 1907, 401. material-man not limited to separate structure on, 408, note. mill for reducing ores included, 409. non-contiguous land included when, 399, note. number of non-contiguous lode claims, non-mineral lands, etc., not included, 399, note. reduction-works on claim included, 409. several mining claims operated as one mine, 399. tramway for hauling ores included, 409. liens cannot date back of commencement of work, 279, note. 972 GENERAL INDEX. MINES AND MINING CLAIMS (eoutinued). materials furnished for work in. as to lien, 95, 96. claim of lien, 295. meats furnished to laborers in, not subject of lien, 89. " mining claim," as to whether includes deeded land, 145, note, mining instrumentalities, as to, 127. oil-well on a tract of land is, when, 147. ownership of, by foreign corporation, presumption of agency, 678- 680. person working mine as agent of owner, 532. power of person claiming to act as agent to confer right to mechan- ic's lien, 418. real property worked as a mine within second clause of statute. 144. running tunnel. See tit. Tunnel. as to, generally, 127. sale of, with authority to work and develop, eflPect on mechanic's lien, 438. shaft in mine. See tit. Shaft. as to, generally, 127. term " mining claim," meaning of, in statute, 14t). time in which to file claim, 391. tunnel in. See tit. Tunnel. use of material or suspension of work on, 279, note. watchman in. idle mine, no lien, 127. not entitled to mechanic's lien for value of services, 91, note, where claimant has. performed labor, time of filing claim, 392. provided materials, time of filing claim, 392. work in " developing," 8, note, work upon fixtures in mine, lien for, 152. working by lessees, 43, note. MINES AND MINING CORPORATIONS. mortgagee secretary of mining corporation, priority of mechanics' liens, 457, note. MINING CLAIM. See tit. Mines and mining claims. MINING EXPERT. not entitled to lien for exploring country surrounding mine, 123, note. MINING INTERESTS. effect of, in producing uniformity of lien, 5. MINING LEASE. with option of ijurchase, liability to mechanic's lien, 422, note. GENERAL INDEX. 973 " MINING SUPEEINTENDENT." distinguished from " sujx'riiiteiulent of a mine," 124. MINORS. as to creation of right to mechanic's lien by, 41 ;1, note. MISJOINDER OF PARTIES. See tit. Pleading and procedure. not affecting objecting party, 654, note, special demurrer for, 654. MISREPRESENTATIONS. of owner, as to actual completion, admissibility of evidence of, 672. MISSTATEMENT OF FACTS. in claim of lien, effect, ol'2. MISTAKE. as to legal and equitable ownership in claim of lien. 320, note, in christian name of employer in claim of lien, effect, 327, note, in claim of lien. See tit. Claim of lien, in statement of demand, effect of, 312, note. MONEY. advanced or lent. evidence of, 702. for payment of materials or labor, no basis for mechanic's lien, 89. not materials, within provision of contractor's bond, 559. due, finding as to, 738. kind of, in which judgment to be satisfied, 752. MONTANA. mechanic's-lien law of. as to, generally, 6, 9. construction of, 26, note. MONTHLY ACCOUNTS. construction of contract where rendered under no special agree- ment, 169, note. MORTGAGE. See tits. Mortgage foreclosure; Mortgagee; Priorities, and mechanic's lien compared, 18. for advances for building purposes, 448, note. for future advances. as to, generally, 459. what constitutes " further advances," 460. for purchase price, 458. future advances, what are, 549, note. 974 GENERAL INDEX. MORTGAGE (continued). lien of. attaches when instrument executed, 458, note, for advances, 549, note, mechanic's lien attaches to building over prior, when, 457, note, obligation to advance moneys for construction, 549. prior, decree of sale on, 762. priority of. See tit. Priority, as to, generally, 68. between, and mechanic's lien, 68, 299, note. on land and subdivisions thereof with reference to the building, 447, note, whether receiving conveyance of mortgaged premises works merger, 549, note. MORTGAGE FORECLOSURE. See tits. Mortgage; Mortgagee. setting up mechanic's lien as defense to, 663. MORTGAGEE. See tits. Mortgage; Mortgage foreclosure. future advances by, what on, 549, note, not made party, right of redemption, 782. of owner, orders on. as to, generally, 486. destruction of building, effect of, 486. proper party in action to foreclose mechanic's lien, 610. subsequent notice of appeal to be served on, when, 789. MOTION TO STRIKE OUT. granting, 725, note. MUNICIPAL ORDINANCES. regulation licensing architects, 107. MUTUAL ABANDONMENT. See tit. Abandonment. NAME. of owner. See tit. Names required to be stated in claim. or reputed owner, variance as to, immaterial, 717. property identified by, in description in claim of lien, 354. NAME OF PERSON CAUSING IMPROVEMENT. statement of, in claim of demand. See tit. Names required to be stated in claim, as to, generally, 329. naming of, sufficient when, 329, note. NAME OF REPUTED OWNER. See tit. Names required to be stated in claim. GENERAL INDEX. 975 NAMES REQUIRED TO BE STATED IN CLAIM. as to, generally, 317. change of ownership, effect on claim, 321. effect of onrdssion of name of owner whose interest is to be charged, 319, note, knowledge of name. as to, generally, 322. various statements considered, 323-32.5. where claimant does not know name of owner of fee, 323. mistake. as to party's interest, 323, note. in christian name of employer, 327, note. name of person to whom material furnished must be stated, 326, note, object of provision, 318. of agent, 329. of employer, 326. of owner. at time of filing claim, 321. or reputed owner, 318, 325, note. of person. " causing improvement," 329. to whom material furnished, 326, note. of purchaser, 326. substantial compliance, 318-320. under void statutory original contract, 327. where there are two or more employers or purchasers, 330-332. NATURE OF LABOR. See tits. Claim of lien; Labor; Statement allegation of, in action to foreclose mechanic's lien. as to, generally, 635. extra work, 635. grading and other work, 635, variance. See tit. Variance. as to, material, 716. between pleading and proof as to, material, 721. immaterial when, 719. NATURE OF WORK. See tit. Nature of labor. NEVADA. mechanic's-lien law of, 6. NEW CAUSE OF ACTION. making a, 726, note. NEW MEXICO. mechanic's-lien law of, 6, 8, 13, 15. 97(j GENERAL INDEX. NEW TRIAL. See tit. Appeal. as to grounds upon which order of, will be granted, 732. order for, on appeal. as to, genorally, 802. conflict of evidence as to street-work, 803. when sustained, 802. NON-LIENABLE ITEMS. commingling with lienable, in claim of lien, effect, 316, 368. NON-LIENABLE MATERIALS. effect of claim for, on lieu, 579. NON-PAYMENT. of iudebteduess to plaintiff must be alleged in action to foreclose lien, 622. NON-PERFORMANCE. excuse for, 2S1, note. NON-PRESENTATION OF CLAIM. by owner's laborer, 761, note. NON-RESPONSIBILITY. See tit. Notice of non-responsibility. NON-STATUTORY CONTRACT. See tits. Building contract; Con- tract; Non- statutory original contract. contract alleged in action to foreclose mechanic's lien presumed to be, when, 625. premature payments may be made under, 221. time of performance of, may be enlarged by parol, 261, note. NON-STATUTORY ORIGINAL CONTRACT. See tit. Contract, as to, generally, 201. abandonment of, liability of owner, 482. alteration of contract, conspiracy, 206. as to whether rule as to waiver of lien applies to, 574, note, compared with statutory original contract, 202. contract price. computable, 203. less than one thousand dollars, 202. may be payable. after building completed, 205. at any time agreed upon, 205. before work commenced, 205. need not be payable. after commencement of work, 205. in instalments, 205. GENERAL IXDEX. 977 NON-STATUTORY ORIGINAL CONTRACT (continued), definition of, 166. evading statute, 203. implied contract as to price is a, 202, need not. be filed if written, 204. be in writing, 204. notice. of claim of lien in case of, 515. to owner under, 205. payment under. in land, 206. may be made when, 205. premature, 205. performance of, time for, may be enlarged by parol, 261, note, premature payments under. See tit. Premature payment. as to, generally, 205. recent broadening of the doctrine, 206. provisions not apjilicable to, 204. time of performance of, may be enlarged by parol, 261, note, twenty-five per cent need not be retained, 204. what in no event a statutory original contract, 204. NONSUIT. See tit. Practice. as to when granted, 7.33. as to when not granted, 733. NOTARY. omission of place of residence from signature to verification of claim, effect, 362, note. NOTE. acceptance of, for antecedent date, effect of, 575. pa5'nient bj', receipt as evidence of, 677. NOTICE. See tits. Owner; Owner, employer, or person causing im- provement. as to, generall}', 501. contract as, of limitation of lien, 411. effect of serving several, 524. false or excessive, forfeiture by, 577 of action. See tit. Notice of action. of appeal. See tit. Appeal. of assignment, 542. of claim. See tit. Notice of claim. of completion of work. See tit. Notice of completion or cessation of work. Mech. IJens — 62 978 GENERAL INDEX. NOTICE (continued). of contractor's failure to perform, 560, note, of non-responsibility. See tit. Notice of non-responsibility, of probate proceedings, want of, 676. of sale. See tit. Notice of sale, question of fact, 542. several, effect of serving, 524. surety's right to, 560. to be filed, and operation thereof, 292, note. to contractor. See Notice to contractor, to one who does not understand the English language, 542. to owner. See " To owner or employer," this title; and tit. Notice to owner. as to, generally, 502. as condition of lien, 292, note. excessive claim in, effect of, 502, note. history of provision, 502. signature to, 502, note. statutory provision respecting, 503. under non-statutory original contract, 205. to owner or employer. See " To owner," this title. as to, generally, 502. history of provision, 502. in California. as to, generally, 503. amendment inserting word " reputed " before word " owner," 503, note. of excessive claim, effect, 502, note. signature to, 502, note, valid contract as a, to owner, 245. NOTICE OF ACTION. finding as to, 737. NOTICE OF CLAIM. See tits. Claim; Claim of lien. to owner, distinguished from claim of lien, 292. NOTICE OF COMPLETION OR CESSATION OF WORK. as to, generally, 380. abandonment of work. as to, generally, 386. actual abandonment, 387. by contractor, 387. default of building contractor or owner affecting statute ©f limitations, effect, 387. subclaimants, as to filing by, 388. " actual " and " statutory " completion, 385. GENERAL INDEX. 979 NOTICE OF COMPLETION OR CESSATION OF WOEK (con- tinued), actual completion, 386. certificate of architect, effect on time of filing, 386. constitutionality of provision, 380, note, failure of owner to file notice, effect, 382. general rule as to, 385. in case of structures. as to, generally, 383-385. "actual" and "statutory" completion, 385. owner's material-man must file claim, 384, note. who required to file claims, 383, 384. work of original contractor included, 383. not given by owner, effect, 380, note. purpose and scope of statutory provision. as to, generally, 381. error in date of cessation from labor, effect, 382. reason for enactment, 382. street-work, whether included, 382. whore claim of lien was filed after statutory period elapsed, 382. statutory provisions as to, 380-382. substantial completion, 386. time of filing. agreements affecting, as to, generally, 388. giving credit, 388. instalment maturing during progress of work, 388. void contracts. as to, generally, 389. burden of determining whether contract valid, 390. subclaimants cannot file under, when, 388. where statutory original contract is void, 390. what constitutes actual completion, 385, note, what provision requires of owner, 380, note. where occupation of building by owner is not exclusive, effect, 385, note. NOTICE OF NON-RESPONSIBILITY. as to, generally, 431. agreement with lessee or conditional purchaser as to improve- ments, 438. California provision as to, 433. complaint in action to foreclose lien should allege not giving, 620. construction of statutory provision. See tit. Construction. as to, generally, 431, note. of California statute, 431, note, effect of knowledge of claimant of lack of authority of person improving, 443. 980 GENERAL INDEX. NOTICE OF NON-RESPONSIBILITY (eoiitiniiod). general rule as to when must be given, 430. immaterial issue when, 742. lessee in possession making improvements, as to, generally, 435-438. agreement with lessee or conditional purchaser, 436. necessitj^ of posting notice, 436. notice. how to be jjosted. as to, generally, 445. in conspicuous j^lace, 445. where notice posted. in little recess on partition-wall back from street, 445, note, on front of building bordering public street, 445, note, when to be posted, 443, 444. notice not required when, as to, generally, 439. before amendment of 1907, 439. in case of. deed of trust rule does not apply, 442. grading and other work in incorporated cities, 441. mines and mining claims, as to, generally, 439, 440. personal property on mine, owner of, is not owner of the mine, 441. prior lien, 442. notice or knowledge of improvement. corporation as owner, rule otherwise, 435. failure to give notice of non-responsibility, effect, 434. purpose of provisions as to notice of. as to, generally, 433. original California provision, 433. statutory provision, 431. vendee being in possession. as to, generally, 43.S. in mines and mining claims, 438. NOTICE OF SALE. impeaching record of publication of, 778, note. NOTICE TO CONTRACTOR. in action against fund, 625. NOTICE TO OWNER. See tit. Notice. allegation of, in action to foreclose mechanic's lien, 623. as condition of lien, 292, iiote. construction of code provision, 578. contents of, 305. GENERAL INDEX. 981 NOTICE TO OWNER (continued). distinction between, and claim of lien, 292. necessity of, to intercept moneys in bis hands, 496. provision of code as to, 578. to withhold payment. deficiency judgment, 762. personal judgment, 759. NOVATION. as to, generally, 264. assignment. before completion of work, 265. of whole contract, 264. definition of, 264. extinction of contract by. See tit. Extinction of contract, of second contractor, future repairs may be set off against, when, 666. purchaser. of estate to pay for work done, 265. taking estate subject to debt, 265. takes place when, 264. where original contractor assigns. part of contract, 265. whole contract, 264. OBJECT. distinguished from " property," 133. to which the lien attaches, 13. OBJECT ON WHICH LABOE MUST BE PERFORMED. See tit. Labor for which lien is given, as to, generally, 630. a well, 636. an ice-box is a fixture when, 151. " building or other improvement," meaning of expression, as used in statute, 135, note, constitutional provisions as to, 134. definition of terms used in statute, 135. distinction between " object " and " jiroperty," 133. division of the statute, 134. fixtures. ice-box considered a fixture when, 151. in general, 148. principles of determination of character, 149. question of fact as to whether things are, 148. work done uy>on. deemed ujion real property, 151. in a mine, 152. 982 GENERAL INDEX. OBJECT ON WHICH LABOR MUST BE PERFORMED (con- tinued), grading under statutory provision, 147. improvement or object, as to, generally, 136. lien primarily on structure, 151. mining claims and property worked as a mine. See tit. Mines and mining claims, as to, generally, 144. land. held under agricultural patent not within statute, 146. which is held under Spanish or Mexican grant not within statute, 145. term " mining claim " applied to what, 145. object or improvement upon which labor is put, 136. public property, work done upon, 153. severance of building from freehold, effect, 152. sidewalk, one of the objects enumerated in statute, 147. statutory provisions. as to, generally, 134. division of, 134. street-work done under statutory provision, 147. structure. enumerated in statute, as to, generally, 141. aqueducts, 142. bridges are expressly provided for, 141. buildings enumerated, 141. church is a " building," within statute, 141. dance-hall being a covered structure resting on sills, 141. ditch, 142. flume, 142. machinery a fixture to realty, 143. railroad, 144. tunnel, 142. well, 142. in general, first clause of structure, 138. mine or pit sunk in a mining claim is a, 139. not enumerated in statute, as to, generally, 139. boarding-house upon mining claim, 139. ice-room built in and attached to warehouse, 140. pipe line for an irrigation company, 140. poles set in ground for electric line, 140. reduction-works on a mine, 140. stamp-mill worked upon a mine, 141. swings between upright posts on playground, 141. tramway erected upon mining claim, 141. GENERAL INDEX. 983 OBJECT ON WHICH LABOR JVLUST BE PERFORMED. Structure (continued), oil-well, 138. on mine, 138. upon which labor is put, 136. system of sewers as improvement to lots within statute, 148. work upon fixtures. deemed done upon the real property, 151. in a mine, 152. work upon mine in land held under agricultural patent not included, 136, note. OBJECTIONS. taken for the first time on appeal. See tit. Appeal, as to, generally, 800. OBLIGATIONS. of subcontractors, 77. OCCUPANCY. by owner during course of alteration, effect of, 379, note. and use. character of, 281. effect of, as acceptance, 280. object of statutory provision, 281. payment in full and, 281, note. of building by owner which is neither exclusive nor inconsistent with work, effect of, 385, note. " OCCUPIED." construed to mean " employed," 369. OFFSETS AND COUNTERCLAIMS. ■ against different payments, 472. in case of valid statutory original contract, 471. items of damages for failure to complete in time, 473. of owner against contractor. See tit. Owner. on abandonment by contractor, 473. OIL-WELL. See tit. Mines and mining claims. as to being a mine, IIG, note. as to whether a structure upon a mine, 138. is a mining claim or mine when, 149. OKLAHOMA. claims for liens assignable in, 20, note, mechanic's-lien law of, 6, 8. 984 GEXERAIi INDEX. OMISSIONS. in verification of claim of lien, effect of, 364. "ON OR ABOUT." sufficiency of, in complaint for foreclosure of lien, 652. ONE THOUSAND DOLLARS. See tit. Non-statutory contract. contract price less than, 202. OPEN DEALINGS. of arbitrators, 183. ORAL AGREEMENT, changes by, 183, note. ORAL QUALIFICATIONS. modifying composition agreement by, 582, note. ORDER. giving, on mining company for portion of amount due, effect, 576. marshaling assets of sale, 778, note, on appeal. See tit. Appeal. as to, generally, 802. of new trial. See tit. New trial. as to, generally, 802. conflicting evidence as to street-work, 803. when sustained, 802. paid, setting up as defense to foreclosure of lien, 665. unaccepted, not an assignment, 540. OREGON. construction of mechanic's-lien statutes in, 25, note, mechanie's-lien law of, 6, 13. ORIGINAL CONTRACT. See tits. Non-statutory original contract; Statutory original contract; Void original contract, alteration in work by order of architect, 557, note. as to whether extra work is done under, 191, note, 192, note, basis of liability of sureties on contractor's bond, 557. changes in. authorized by contract, 557. oral agreement as to, 193, note, contract between owner. and laborer not an, 165. and material-man not an, 165. contract of subcontractor not an, 165. definition of, 165. estoppel. See tit. Estoppel. GENERAL INDEX. 985 ORIGINAL CONTRACT (continued), filing of, provision for, valid, 38. implied when, 59. in writing, for extra work need not be, 194. oral agreement as to extra work, 193, note, provision that changes shall be in writing, 557, note, term not used in statute, 156. valid or void, priorities under, 449. verbal alterations of, 194. •written order where contract provides engineer maj- direct addi- tions. 194, note. ORIGINAL CONTRACTOR. actions by. as to, generally, 586. against subclaimauts, 588. breach of valid contract, effect of, 587. upon implied contract, 587. where statutory original contract void, 588. as to whether are, 55. definition of, 54. distinction between. and middleman. as to, generally, 62. illustrations, 63. and subclaimant, 508, note, first test. See " Test," this title, four essential features. as to, generally, 56. 1. He must be in privity with owner, etc., 56. 2. He must be competent to create " intermediate " liens, 56. 3. Liens must be dependent upon indebtedness for which person liable, 56. 4. Contract must be for labor, 56. general obligations of. cannot waive rights when, 71. duty to file contract for record, 71. to other persons, 71. to persons causing improvement to be made, 69. general rights of. as against person other than one causing improvement. in privity, 68. not in privity, 68. as against person who caused the improvement. as to, generally, 66. under a valid contract, 67. under a void contract, 67. voluntary payments made by owner, 68. 986 GENERAL INDEX. ORIGINAL CONTRACTOR (continued). intermediate liens, power to create, one of the tests of, 55. judgment must be given against, 751, note, laborers of, placing in situ, right to lien, 56. material-men. See tit. Material-men. owner cannot be, 57. test as to what constitutes. intermediate liens, 55. original contract, first test. holder of legal title entering into contract, 57. implied original contract, 59. privity, 57. tenant entering into contract, 58. void contract, effect, 58. second test. agents of original contractor, 59. direct contract with owner, 60. intermediate lien-holders, 59. material-man not an original contractor, 60. third test. builder or foreman in charge of construction, 61. personal liability, 60, fourth test. labor contract, 61. several " original contractors," 62. two or more original contractors, 56. variance made by liability of surety on bond, 558, note. OTHER REMEDY. right to enforce mechanic's lien, and pursue, 294, note. OVERSEER. performing manual labor, allowed a lien, 119, note. OWNER. See tit. Owner, employer, or person causing improvement actions by, against original contractor. as to, generally, 590. damages, 590. to bring in all parties, 590, note. agreement to assign claims to. as to, generally, 581. does not constitute an accord when, 582. pro rata amount left blank, 581. where owner does not seek compromise, 582. amount owing from, to contractor, sufficient allegation of, in com- plaint to foreclose lien, 623, note. GENERAL. INDEX. 987 OWNER (continued), and reputed owner, 468. architect as agent of, 111. as assignee of claim, 539, note. as to notice of claim to, 578. at time of filing claim, 321. cannot complain at judgment impressing fund due contractor, 626, note, cannot waive final certificate of architect, 572, note, claim of lien to inform, and facilitate investigation, 297. consent of, necessity for, 159, note, construction of code provision as to, 578. contract. between, and laborer not an " original contract," 165. for street- work. See tit. Street-work, not binding on, contractor's lien fails, 159. contractor as statutory agent of, 529, note. contractual relation with, need not be shown in claim of lien, 310. daughter of, as agent, 159, note, death of. before filing claim, effect of, 292, note, in action to foreclose mechanic's lien, 634. default judgment against, 756. directing sale of entire building on foreclosure of lien, 765. distinction between, and employer or purchaser, 467. estoppel. See tit. Evidence. of, by acts of reputed owner, 40. evidence of misrepresentations of, as to actual completion, 672. failure to file notice of completion or cessation of work, effect, 382. general obligations of. as to, generally, 478. application of payments by subclaimauts, 485. application of statutory provisions. as to, generally, 481. in case of valid statutory original contract, 481. liability of owner on abandonment of valid contract, 481, note, where liability of owner is not established, 482. where owner completes work, 482. as a stakeholder, 490. destruction of building. See tit. Destruction of building. as to liability on, 484. duty. to file statutory original contract, 479. to see that bond of contractor is filed, 479. to withhold payments, 479. false representations by owner as to completion of building, liability under, 500. 988 GENERAL INDEX. OWNER. General obligations of (continued), guaranty not a prohibited payment, 489. liability for costs and interest. as to, generally, 491. contest by owner, costs and attorneys' fees, 491, note. deposit with county clerk, under Oregon statute, 491, note. duty to deposit money in court, 492, note. interpleader, 491. payment into court, interest and costs, 492, note. right to come into court and bring all interested parties, 491. where no tender of amount due, 492. where notices served to an amount in excess of contract price, 491. liability of. fee for improvements by trespasser, 484. for failure to file contractor's bond, 478, note. not beyond contract price, 482, note, liability on breach or abandonment. as to, generally, 480. deduction from amount found due claimants, 480, note, statutory provisions as to, 480. liability under valid contract. as to, generally, 494. in absence of notice prescribed by statute, 496. portion not due until building completed, 496. subclaimants cannot acquire rights against owner, 495, note, liability under void contract. as to, generally, 497. penal provision, 498. personal liability to subclaimants under, 499. statutory measure of liability, 499. non-statutory original contract, liability, 482. obligations of, on contract to pay instalments, 479. orders on owner's mortgagee. as to, generally, 486. destruction of building, effect of, 486. payment of orders of contractor. See tit. Payment. as to, generally, 485. on judgment for material-man, made lien on unpaid moneys, 486. splitting demands, 485. payments to subclaimants. See tit. Payment. as to, generally, 496. in case of valid contract, 496. last payment, 496. personal liability. See tit. Personal liability. as to, generally, 492. agency of person emploj'iug contractor neither express nor im- plied, 494. GENERAL INDEX. 989 OWNER. General obligations of. Personal liability (continued). creditors who are not found to be lien-holders, no recourse against owner's propert}^, 493, note, expulsion of contractor, liability on, 494. liability on rr-^tract to pay in instalments, 492, note, owner not jicrsonally liable, 493, note, personal judgment against owner for work performed under promise to pay, 492, note, statute does not create contractual relation, 493. void contract abandoned, liability, 482. voluntary paj^ment of contractor's debts. as to, generally, 487. burden of proving demands paid were valid debts, 488. failure to make valid defense, 489. only obligation to contractor, 489. owner no right to set up his opinion as to legality, 488, note, owner not liable to contractor when, 488, note, owner pays at own risk. 488, note. surety on contractor's bond, liability for attorneys' fees, 488, note. general rights of. as to, generally, 469. against contractor, as to, generally, 469. abandonment bj^ contractor, right to complete construction, 476. completion of contract by owner, 476. damages for delaj' in performance, as to, generally, 475. costs and expenses reasonabl_y necessary to conform work to original contract, 475, note, exclusion of damages for delay, 475, note, liquidated damages, stipulation for, literal enforcement. 475, note, not recoverable where contract was modified l)y mutual cou- sent, 475, note, recovery by owner of excess of contract price, 475, note, when owner entitled to, against contractor for delay, 475. general rule as to non-payment of instalments, 470. in case of mutual abandonment of work, 477. non-payment of instalments, general rule as to, 470. offsets and counterclaims. See tit. Offsets and counterclaims, as to, generally, 471. against different payments. See " Offsets and counterclaims against different payments," this title, completion payment. 471. final payment, 472. in case of valid statutoiv original contract. 471. rights as to credits as against original contractor, 471, note. 990 GENERAL INDEX. OWNER. General rights of. Against contractor (continued), offsets and counterclaims against different payments. as to, generally, 472. abandonment by contractor, on, 473. completion payment, 474. final payment, 473. items of damages for failure to complete in time, 473. payments. as to, generally, 478. subclaimants cannot complain of, when, 478. right to. cancel contract, 470. complete construction upon abandonment, 476. materials upon abandonment, 477. retain fund, 470. rights as against others, 477. statutory rights, 469. how far subclaimants are bound by terms of contract, 246. immaterial variance as to purchasing directly, 713. implied contract, 159. infant and guardian as, 467, note. interest of, not liable under contract with lessee of mine, 468, note. judgment against, by general creditors, 547. knowledge of. improvement by, 629. need not be stated in claim of lien, 309. leasing mine in small blocks, 468, note, liability of. on contractor's failure to perform, 289. under contract, 244, note, limitation of power of legislature, 245. lumber and workmanship below contract requirements, liability for, 247. may set off costs and interest against contractor when, 769. name of. See tit. Names required to be stated in claim. or of reputed, must be correctly stated in claim of lien, 688. to be set out in claim of lien, 638. necessary party defendant to foreclose mechanic's lien, 605. no privity of contract between, and subcontractor, 73. not liable for attorneys' fees when, 777. not necessary that person contracting for building shall be, 15!». notice filed with, by subcontractor, gives priority of lien on fund, 461, note, notice of non-responsibility by. See tit. Notice of non-responal- biUty. notice to. See tit. Notice to owner, as condition of lien, 292, note. GENERAL INDEX. 991 OWNER (continued). objecting to non-joinder of contractor, 799. occupancy of building which is neither exclusive nor inconeistent with work, effect of, 385, note. offer to pay amount due contractor, genera) creditors not incladcd, 547. on abandonment of contract, 246. on substantial compliance with contract, 250. owner's redress for failure to comply with terms of contraL-t, 248. payment. See tit. Payment, proof of knowledge of, 680. recovery of costs. against, 769. by, when, 769. redress for failure to comply with terms of contract. 248. relation between, and architect, 111. reputed. See tit. Reputed owner. name of. See tit. Names required to be stated in claim, request of. findings as to, sufficient to support judgment when, 747. under void statutory original contract, 627. service of notice on, not presumed on appeal, 794. subclaimants limited to what sum, 290. valid contract. as notice, 245. not entirely broken by malfeasance or nonfeasance of contractor, 249. validity of deficiency judgment not involved on appeal when, 795. value of work done and material furnished, 290. what does not constitute person an, 468. work must be done and material furnished by contract with, 467, note. OWNER, EMPLOYER, OR PERSON CAUSING IMPROVEMENT. See tit. Owner, as to, gemrally, 501. action. as to, generally, 523. and claim of lien. distinction and purposes, 504. object and effect of, 505. notice. See tit. Notice, as to, generally, 523. creates personal obligation, 506. distinction between owner and employer or purchaser, 467. employer, distinction between, and owner or purchaser, 467. 992 GENERAL INDEX. OWNER, EMPLOYER, OR PERSON CAUSING IMPROVEMENT (continued). form and contents of notice. as to, generally, 524. construction of, 524. effect of several notices served, 524. how far rules applicable, 525. present provision as to notice, 524, note, statutory requirements of notice. as to, generally, enumeration, 525. notice attaches only for amount actually due, 526, note. sufficiency of notice, 526. under act of 1862, 525, note, 526, note, garnishment. See tit. Garnishment. as to, generally, 507-509. notice authorized by statute, 509, note, under statute of 1862, 509, note. general rights upon service of notice. as to, generally, 510. claim of lien is equivalent to notice to owner, 512. earlj- statutes in California, 511. early statutes respecting, 511. effect of notice on payments already made or assigned, 516-518. non-statutory original contract, 515. on payment by note, 518. payment by note, 518. relation to provisions as to premature payment. as to, generally, 5.19. criticism of doctrine, 519, note. waiving certificate of architect, 520. right, personal, 511. service of notice on public trustees. as to, generallj^ 521. additional to remedy on bond, 522. notice given to trustee of state building, 522. to trustees of state building, 522. under non-statutory original contract, 515. under valid contract, generally, 512. under valid original contract. as to, generally, 513. on abandonment, 514. under void statutory original contract, 514, 515, note, valid statutory original contract. as to, generally, 513, 514. abandonment of, notice, 514. notice served upon owner under, 515, note. GENERAL INDEX. 993 OWNER, EMPLOYER, OR PERSON CAUSING IMPROVEMENT (continued). in case of valid statutory original contract, 510. in nature of garnishment, 506, note, infant and guardian as owners, 467, note, itoinized account not required, 505, note. joint contractors, apportionment, 523. notice to owner or employer, as to, generally, 502. and claim of lien, as to, generally, 504. amendment of 1887, 504, note, creating personal obligation, 506. distinction and purpose, 504. garnishment. See tits. Attachment; Garnishment, as to, generally, 507-509, note, under act of 1862, 509, note, itemized account not required, 505, note, notice in nature of garnishment, 506. object and effect of, to owner, 505. section as it stood in 1885, 504, note, statutory construction, 506, note, excessive claim in notice of claim to owner, 502, note, history, 502. statutory provision in California, as to, generally, 503. amendment inserting word " reputed " before word " owner," 503, note, sufficiency of signature to notice, 502, note. owner. and reputed owner, 468. distinction between, and employer or purchaser, 467. general obligations of, and employer, as to, generally, 478. application of payment by subclaimants, 485. destruction of building, on, 484. duty to. file statutory original contract, 479. see to it that bond of contractor is filed, 479, note, withhold payments, 479. guaranty not a prohibited payment, 489. liability for costs and interest. See tits. Cost; Interest, as to, generally, 490. contest by owner, costs and attorneys' fees, 491, note, deposit with county clerk under Oregon statute, 491, note, duty to deposit money in court, 492, note. Interpleader, 491. Mech. Liens — 63 994 GENERAL INDEX. OWNER, EMPLOYER, OR PERSON CAUSING IMPROVEMENT. Owner. General obligations of, and employer. Liability for costs and interest (continued). owner may come into court and bring all interested parties, 491. payment into court, interest and costs, 492, note. tender of amount due, or offer to allow judgment, 492. where notices are served to an amount in excess of contract price, 491. liability for failure to file contractor's bond, 478, note, liability of fee for improvements by trespasser, 484. liability of, on breach or abandonment. as to, generally, 480. application of statutory provision, 481. in case of valid statutory original contract, 481. not beyond contract price, 482, note. on abandonment of valid contract, 481, note. statutory provisions, 480. what constitutes abandonment, 481. where liability of owner is not established, 482. where owner completes work, 482. liability of owner or employer under valid contract. as to, generally, 494, 497. in absence of notice prescribed by statute, 496. portion not due until building completed, 496. subclaimant cannot acquire any right against owner, 495, note, non-statutory original contract. 482. obligation of. on contract to pay instalments. 479, note to withhold moneys, 480, note, orders on owner's mortgagee. as to, generally, 486. destruction of building, effect of, 486. owner as stake-holder, 490. payment of orders of contractor. as to, generally, 485. making judgment in favor of material-man on unpaid moneys, 486. splitting demands, 485. payment to subclaimants. as to, generally, 496. in case of valid contract, last payment, 496. personal liability. See tit. Personal liability. as to, generally, 492. agency, 494. expulsion of contractor, 494. owner not personally liable, 493, note. statute does not create a contractual relation, 493. GENERAL INDEX. 995 OWNEE, EMPLOYER, OR PERSON CAUSING IMPROVEMENT. Owner. General obligations of, and employer (continued). Toid contract. abandoned, 482. false representation by owner as to completion of building, effect on liability, 500. liability of owner under, 497. penal provision, 498. personal liability to subclaimants under, 499. statutory measure of liability under, 499. voluntary payment of contractor's debt as to, generally, 487. burden of proving demands paid were valid debts, 488. failure to make valid defense, 489. owner is not liable to contractor when, 488, note. owner no right to set up opinion as to legality of lien, 488, note. owner pays subclaimants at own risk, 488, note. owner's only obligation to contractor is to pay, 489. surety on contractor's bond, liability for attorneys' fees, etc., 488, note. general rights of, and employer, as to, generally, 469. abandonment. mutual, in case of, 477. right of, to complete construction upon, 476. right to materials upon, 477. completion of contract by owner, 476. damages for delay in performance. as to, generally, 475. costs and expenses reasonably necessary to make work con- form to contract, 475, note. exclusion of evidence as to, for delay, 475, note. for delay in completing buildings, 475, note. liquidated, stipulation for, literal enforcement, 475, note. not recoverable when, 475, note. recovery by owner of excess of cost price, 475, note. where owner is entitled to, against contractor for delay, 475, note, general rule as to non-payment of instalments, 470. indemnifying owner against liens, effect on material-man, 477, note, materials, right to, upon abandonment, 477. offsets and counterclaims. See tit. Offsets and counterclaims. as to, generally, 471, 472. abandonment by contractor, etc., 473. completion payment, 471, 474. 996 GENERAL INDEX. OWNER, EMPLOYER, OR PERSON CAUSING IMPROVEMENT. Owner. General rights of, and employer. Offsets and counterclaims (continued), entitled to credit for payments of claims before filing lien, 472. final payment, 472, 473. in case of valid statutory original contract, 471. items of damage for failure to complete in time, 473. rights of, to credits, as against original contractor, 471, note, payments. See tit. Payment. as to, generally, 478. subclaimants cannot complain of payments when, 478. right to complete construction upon abandonment, 476. rights against contractor, as to, generally, 469. statutory provisions, 469. rights against others, 477. in contract to perform labor on mine, 468, note, infant and guardian as, 467, note. interest of, not liable under oontract with lessee when, 468, note, leasing mine in small blocks, 468, note. " reputed owner " synonymous with what, 468, note, right... to cancel contract, 470. to retain fund, 470. work must be done and material furnished by contract with, 467, note, payment by. See tit. Payment, provision applicable when. as to, generally, 510. in case of valid statutory original contract, 510. purchaser, distinction between, and owner and employer, 467. statutory requirements of notice, 525. sufficiency of notice, 526. time of giving notice, 523. work must be done and material furnished by contract with, 467, note. OWNER OF THE LAND. person the mechanic's-lien law deals with, 6, note, reputed, cannot bind property when, 6, note. OWNER'S EMPLOYEE. variance between pleading and jsroof immaterial when, 723. OWNER'S LABORERS. • action to foreclose lien by, 589. non-presentation of claim, 761, note. GENERAIi INDEX. 997 OWNER'S MATERIAL-MAN. See tit. Material-man. OWNERSHIP. allegation aa to conveyance, 629. allegation of, in action to foreclose mechanic's lien, 628. at time of filing claim, 321. change of. does not necessitate new claim of lien, 299. effect on claim of lien, 321. failure to allege that name of owner was unknown, 628, note, false representation as to, efifect on lien, 407. reputffl, conveyances on record as evidence of, 688, note. PAPERS. reference to, in statement of claim, 339. PAROL. e\ idence. See tit. Evidence. time for performance of non-statutory contract may be enlarged by, 261, note. PARTICULAR CLAUSES. See tit. Contract. PARTIES. having prior claim on fund, objections against, 725, note, misjoinder of. See tit. Misjoinder of parties, on appeal. See tit. Appeal, to action to foreclose mechanic's lien. defendant. as to, generally, 604. both spouses necessary where community property involved, 605, note. contractor, 606. copartners. as to, generally, 606. death of one, 606. employers, 606. estoppel. See tit. Estoppel. grantee of mortgage assuming the mortgage debt, 686. holdors of prior interests and liens, 609. infants, appear by guardian, 610. lien claimant, 608. mortgagees, 610. non joinder of. See tit. Non-joinder. on community property, 605, note. owner as, 605. subcontractor, 608. wives of partners not necessary parties, 605, note. 998 GENERAL INDEX. PARTIES. To action to foreclose mechanic's lien (continued). intervener. See tit. Intervention, non-joinder of. See tit. Non-joinder, raising objections for want of. as to, generally, 603. estoppel, 603. . not to be raised on introduction of evidence, 603, note, plaintiff. See tit. Plaintiff, as to, generally, 602. partner as assignee of partnership, 602. statutory provisions, as to, generally, 602. estoppel, 603. object of provision, 603. raising objections, 603. where there are a number of adjoining mining claims, 603. to contract. See tits. Corporation; Executor; Guardian, competency of, 157. husband and wife, community property, 161, note, signature by one, 162, note. PARTITION. added to a building as a fixture is a " repair," 121. PARTNER. See tit. Partnership. assignee of partnership as plaintiff, 602, note, assignment of debt due from partnership to, 539, note, defendant in action to foreclose mechanic's lien, wife of, not neces- sary party, 605, note. PARTNERSHIP. See tit. Partner. assignment of debt from, to one partner, 539, note. claim of lien by, 540. partner assignee of, as plaintiff, 602, note. PARTS OF DAY. See tit. Day. PATENT. See tit. Agricultural patent, PATTERN. See tit. Tools. referring to adjoining house as a, 227. use in the manufacture of couplings, not subject to mechanic's lien, 90. PAYMENT. See tits. Owner; Owner, employer, or person causing improvement; Premature payments. ■ as to, generally, 195. a condition precedent when, 270. GENERAL INDEX. 099 PAYMENT (continued). already made or assigned, effect of notice of claim of lien upon, 516-518. application of. as to, generally, 179, 272, note, 478. by subclaimants, 485. creditor has right to make, 197, note. for benefit of surety, 557, note. for extras where there is a mortgage, 197, note. by note. effect of notice of claim of lien upon, 518. receipt as evidence of, 677. condition precedent to. as to, generally, 196. waiver of, 196. contractor's order in favor of material-man where building destroyed by fire, 196, note, duty of owner to withhold, 479. equal application for two houses, 198, note, finding as to, sufficient to support judgment wher 746. immaterial variance as to, 713. in land, under non-statutory original contract, 206. in money, requirement that shall be, unconstitutional, 39. into court. See tits. Deposit; Payment into court, made before commencement of work, independent promise, 196, note, made by owner, sufficient when, 662. memorandum of contract must contain provision for, 241. no time fixed in agreement for, construction, 170, note, of balance of fund on deposit in court, 729. of lien claims as defense to mortgage foreclosure, 664. of order of contractor, splitting demands, 485. partial, by material furnished by owner, 216, note, premature. See tit. Premature payments. as to, generally, 205. relation of provision as to notice to, 519. setting up, in answer. See tit. Answer. to foreclosure of lien, 664. subclaimants cannot complaint of, when, 478. to be made on completion of building, destruction by fire, effect, 196, note, to contractor's material-man at former's request, 196, note, to subclaimants under valid contract, 496. under altered contract, 263. under nonstatutory original contract. See tit. Non-statutory origi- nal contract, under statutory original contract. as to, generally, 2U7. 1000 GENERAL INDEX. PAYMENT. Under statutory original contract (continued), statutory provisions, as to, generally, 207. contract not to be payable in advance of work, 209. contract price payable in instalments or after completion, 210. general rule as to, 212. illustrations as to sufficient compliance with statute, 213. in money, 216. object of provision, 208, 212. owner pays at own risk, 212. partial, may be safely made by owner when, 212. provision for payment. of bills, sufficiency of, 211. to material-men, 210. provision for withholding percentage of contract price, 211. scope and object of provisions, 208. stipulated, offsets against, 211, note, substantial compliance required, and effect of, 208. third payment to contractor, 210. twenty-five per cent after thirty-five days from completion. See tit. Twenty-five per cent, what not a substantial compliance with statute, 214. to be in money, 216. voluntary, of contractor's debts, as to, generally, 487. burden of proving that demands paid were valid debts, 488. owner has no right to set up his opinion as to the legality of lien, 488, note, owner pays at his own risk, 488, note, waiving certificate of architect, 520. when due, acceptance of work, 196, note. PAYMENT INTO COURT. See tit. Deposit. interest and costs on, 492, note, relieves from interest. See tit. Interest. as to, generally, 753, note, 755. PECULIARITIES. of mechanics' liens, 15. PENAL PROVISION. in void contract, 498. strictly construed, 26, 29, PENALTY. for conspiracy as to contract price of building, 243. in statutory original contract, construction of, 176. provision imposing, in statutory original contract, 207. GENERAL INDEX. 1001 PENDENTE LITE. interest, 610. PERCENTAGE. of contract price, withholding. See tit. Twenty-five per cent. PERFORMANCE. finding as to, 738. immaterial issue when, 742. of contract. See tit. Performance of contract. parol evidence of, of contract, 693. prevention of. See tit. Prevention of performance. as to, generally, 269, note. allegation of, 621. by injunction, 269, note. finding as to, 738. rule as to what shall constitute, is indefinite, 277. substantial, finding as to, 740. PERFORMANCE OF CONTRACT. See tit. Performance. as to, generally, 265. completion. means what, 265. " of mining claim," 279. term means what, 265. contradictory findings as to, 744. conveniences, 278. erection of part of structure only, 279. excuses for non-performance, 268. general rule and conditions, 268. of non-statutory, time of, may be enlarged by parol, 261, note, original contract. valid, 266. void, 266. payment, condition precedent when, 270. performance of warranty, 271. prevention of. See tit. Prevention of performance. slight difference in value, 278. substantial performance required, 274, 276. time of performance, 267. " trifling imperfection," meaning of, 272. when completed, 266. when no time specified, 267. PERMISSION TO GRADE. of city council, when, 130, note. of superintendent of streets, when, 130, note. 1002 GENERAL INDEX. PERSON ACTING IN REPRESENTATIVE CAPACITY. authority to confer right to mechanic's lien, 415, note. PERSON CAUSING IMPROVEMENT. See tit. Owner, employer, or person causing improvement. PERSON CONTRACTING. variauce as to, effect, 717, 721. PERSON ENTITLED. as to, generally, 50. before present constitution enacted, 50, ,iote. classification as to relation of owner or employer, as to, generally, 52. important consequences following distinctions, 52. constitutional and legislative classifications of, 50. distinction between classes of lienors, 51. individual claimants, as to, generally, 53. corporation. is a " person " entitled to lien, 53, note. organized to manufacture cannot hold lien for labor, 53, note, each partner has right to create lien, 53, note, foreign corporation. entitled, same as domestic, to lien, 53, note, filing of articles, when sufficient, 53, note, individual furnishing materials under name of a company, right to lien in individual name, 53, note. municipal corporation not entitled, unless especially authorized, 53, note, legislative classifications of, 50. PERSON IN POSSESSION. as agent of owner, 531, 534. PERSON PERFORMING LABOR. See tit. Laborer. is a generic expression more extensive in meaning than " laborer," 101, note, statutory provisions as to, 100. PERSON UNDER DISABILITY. creation of right to mechanic's lien by, 415, note. PERSONAL ACTION. right of, by subcontractor against contractor, 76. GENERAL INDEX. 1003 PERSONAL JUDGMENT. as to, generally, 730. against. contractor, notice of appeal, 787. party liable, 758, note. wife, not reviewable on appeal without exceptions, 792, note, allowed in action to foreclose lien, 584, note, death of owner, recovery against estate, 761. execution on, 778, note. in addition to decree foreclosing lien, 756, note, in foreclosure, under act of 1864, 758, note. in sewer improvement, against contractor, error when, 757, note, jurisdiction of superior court to render, in suit to foreclose lien, 49, 761. not allowed when, 758, note, notice to owner to withhold pa^-ment, 759. plaintiff not entitled to interest prior to, 755, note, purchaser of property assuming debt, against, 759. rendered for amount due, effect of, 585, note, right to recovery of, 756, note, subclaimant against contractor, default, 760. void when, 758, note, when not given, 760. when not required, 756. when obtained, 757. PERSONAIj LIABUjITY. See tits. Owner; Owner, employer, or per- son causing improvement, of agent, 536. one of the tests of " original contractor," 60. PERSONAL PROPERTY. lease of, to persons working mine, effect, 441, note. PICKS. Sec tit. Tools. lien for sharpening, 124, note. PIPE LINE. for an irrigation company, lieu upon, 140. PIT. sunk in a mining claim is a " structure," 139. PLACE. of commencing action to foreclose lien, as to, generally, 597. amount less than jurisdictional limit, 593. 1004 GENERAL INDEX. PLACE. Of commencing action to foreclose lien (continued), by trustee in bankruptcy, 598, note, in Federal courts, 599. jurisdiction of superior court, 598. statutory provisions, 597. PLAINTIFF. cannot recover attorneys' fees out of proceeds when, 772, note. construed to mean " claimant," 369. not entitled to interest prior to verdict, 755, note. PLANS AND SPECIFICATIONS. See tit. Architect, contract for drawing, 156, note, false reference to, 163. referred to. in contract. as signed by the parties, when not signed, effect of, 228, note, 233. become part thereof, must be filed, 230, but not filed. cannot be taken advantage of by answer, 660. not available in answer, 663. in memorandum filed, 239. referred to in statutory original contract as having been signed, contract inchoate when, 227. PLEADING AND PEOCEDUEE. See tit. Practice. as to, generalh', 583. admissions in, sufficient to support finding, 672. answer. See tit. Answer, appeal. See tit. Appeal, assignment of claim, 538, note. attorneys' fees. See tits. Appeal; Costs and attorneys' fees, complaint in action to foreclose lien. See tit. Complaint, consolidation of actions. See tit. Consolidation of actions, costs. See tits. Attorneys' fees; Costs, decree of court. See tit. Decree, demurrer to complaint. See tit. Demurrer. estoppel. See tit. Estoppel. as to, generally, 561. evidence. See tit. Evidence, facts not alleged, 671, note, findings of court. See tit. Findings, forms of pleadings, etc. See tit. Forms, general rules as to pleading. as to, generally, 614, 615. . certificate of architect, 621. GENERAL INDEX. 1005 PLEADING AND PROCEDURE. General rules as to pleading (con- tinued). common counts, 617. completion of building, 620. condition precedent, 620. contract, 616. debt due, 622. express contract, 639. in action to foreclose mechanic's lien. See tit. Complaint. general principles of, 614. stating cause of action, as to, generallj', 614. general rule, 615. in contract for liquidated damages against sureties, 558, note, parties to actions. See tit. Parties. place of foreclosure. See tit. Time, place, and manner of commen- cing action to foreclose lien. redemption of premises. See tit. Sale and redemption. remedies. See tit. Remedies. non-payment of indebtedness to plaintiff, 622. premature payment to contractor by owner, 623. prevention of performance, 621. technical defects cured by acts of parties, 619. sale of premises. Sec tit. Sale and redemption, time to commence action. See tit. Time, place, and manner of commencing action to foreclose lien, trial. See tit. Trial and practice, variance. See tit. Variance. as to, generally, 719. between, and claim or proof. See tit. Variance. immaterial when, 720-723. in pleading and proof. See tit. Variance. POLES. set in ground as part of an electric line, lien upon, 140. POSTING. how to be made. as to, generally, 445. in conspicuous place, 445. in front of building bordering on public street, sufficiency of, 445, note. on partition-wall several feet back from street, sufficiency of, 445, note. notice of non-responsibility. when to be made. as to, generally, 443, 444. within three days after knowledge, sufficiency of, 443, note. 1006 GENERAL INDEX. POWER. of architect. See tit. Architect. use for blasting in constructing flume, etc., or on a mine, subject of lien, 90. PRACTICE. See tits. Pleading and procedure; Trial. as to, generally, 724. bankruptcy proceedings, 725, note. consolidation. See tit. Consolidation of actions. continuance, 724, note. costs of claim of lien not demandable on tender before suit, 725, note. default, relief from, discretion, 724, note. dismissal, where defendants fictitious, 725, note. estoppel. See tit. Estoppel, as to attorneys' fees, 725, note. by stipulation, 724, note, failure to serve cross-complaint, 725, note, fictitious defendants, dismissal, 725, note, granting motion to strike out, 725, note. objections against persons having prior claims on fund, 72.5, note, preference in calendar, 725, note, stay of proceedings, 725, note, sufficiency of particular errors of law, 724, note. tender as admission of amount due, 725, note. PRACTITIONER. only safe course for, 2. PRELIMINARY WORK. no lien allowed for, 130. PREMATURE PAYMENTS, See tits. Non-statutory original con- tract; Payment, as to, generally, 564. advances must be properly made, 565, note. bond providing that, shall not affect obligation of sureties, 565, note, final instalment, 567. intermediate instalments, 566. no loss to contractor or surety by reason of, does not release surety, 564, note, recent broadening of the doctrine of, 206. sureties, are exonerated when, 564. not exonerated by, when, 565, note, not injured by, when, 565, note. to contractor by owner, allegation of, in complaint to foreclose lieo, 623. GENERAL INDEX. 1007 PREMATURE PAYMENTS (continued), under non-statutory original contract, 205. waiver of defense of, by provision in bond, 565, note. PREPARING CLAIM. attorney's fee for, 775. PRESUMPTION. as to reasonableness of attorneys' fees, 79.S, note, none, in absence of allegation that statement and conditions of con- tract did not include all conditions, 335. Of agency. overcoming, 678-680. raised when. as to, generally, 534. person claiming to be agent and acting on land, 534. person working mine^ 532. of knowledge of subclaimants of valid contract, 696. on appeal. See tit. Appeal. as to, generally, 792. as to defense not pleaded, 794. as to extent of land, 793. as to findings. See tit. Findings, as to lien on real property, 792. as to reputed owner, 793. as to work and amount found due, 794. what not indulged, as to, generally, 794. agency of employers, 795. service of notice on owner, 794. that building is attached to land upon which erected, 325. note. PREVENTION OF PERFORMANCE. See tit. Performance. finding as to, 738. what constitutes, 291, note. PRICE. agreed, statement of reasonableness of, 341. claim setting forth contract, 341, note. equivalent to " for the value," used in statute giving lien, 411. excessive claim for, effect on lien, 579. express and implied agreement as to, 340. PRINCIPAL. bound by notice to agent, 536. PRIOR LIENS. notice of non-responsibility not required when, 442. 1008 GENERAL INDEX. PRIOR MORTGAGE. decree of sale on, 762. PRIORITIES. as to, generally, 446. between mechanics' liens and other estates or interests, as to, generally, 447. alteration and reformation of instruments, 460. contractors and subcontractors, liens of, 4.54. deed of trust on canal, 456, note. distribution of fund, order of priority among claimants, 462. doctrine of relation, 450. garnishment by creditor, 460. general analysis of provision. as to, generally, 449. valid or void original contract, 449. general rule, 455-458. grants and conveyances, 449. homestead, against. as to, generally, 454. declaration of, does not defeat right of lien, 455. lien for materials. as to, generally, 453. running account, time begins to run against lien when, 453, note. where work done or materials furnished continuous in its na- ture, 453, note, lien on two or more buildings. as to, generally, 462. statutory provision as to two or more buildings applicable, 462. liens relate back, 449, note, mechanic's lien. See tit. Mechanic's lien. and mortgages, 299, note. over subsequent liens, 457, note. superior to earlier mortgages when, 457, note, mortgage lien. See tit. Mortgage. attaches when instrument executed, 458, note. for building purposes, 448, note. for future advances. as to, generally, 459. advances must be properly made, 460, note, as to what constitutes " further advances," 460. for purchase price, 458. mortgagee, secretary of mining corporation for whom labor per- formed, 457, note. parts of day taken notice of as to priority, 455. provision has no reference, to priority between claimants, 449, note, reformation and alteration of instruments, 460. GENERAL INDEX. 1009 PRIORITIES. Between mechanics' liens and other estates or interests (continued). relation, doctrine of. as to, generally, 450. contractor must inform himself of prior liens, 451, note, distinction as to time at which lien attaches, 452. failure to perfect lien also relates back, 451, note, in lien on mine, 451. in valid and void contracts, 451, note, lien attaches when, 451, note. lien cannot attach until claimant files statement, 451, note, statute must be strictly complied with, 451, note, rule that mechanic's lien attaches to building in preference to prior mortgage, 457, note, statutory statement of rule, 448. void contract, under, 454. when lien claimants may attack prior encumbrances, 460. findings as to, 737. inter sese. as to, generally, 463. distribution of fund, order of priority among claimants, 462, note, effect of constitution on statutory provision as to, 465. insufficient proceeds, prorating, 465. nature of provision, as to, generally, 464. where valid original contract is abandoned, 464. prorating whore there are insufficient proceeds, 465. statutory provisions, 463. subordination of contractor to subclaimants, 464, note, marshaling. assets. See tit. Marshaling assets. as to, generally, 447, note, liens, 447, note. of lien of mortgage on land, and subordination thereof with refer- ence to the building, 447, note. Of mechanics' liens. as to, generally, 447, note, over mortgages for advances, 447, note of subcontractors under contractor, 77. priority of farm-laborers' liens on crops, 447, note, purchaser having notice of facts affecting, effect on application of proceeds, 781. record notice limited to subsequent mortgagees and purchasers, 447, note. PRIVILEGE. mechanic's lien is a, in Oregon, 7, note. Mech. Liens — 64 1010 GENERAL INDEX. PRIVITY. essentia] element to a valid contract, 57. failure of complaint to foreclose lien to show, 630, note. PROBATE PROCEEDINGS. evidence of want of notice of, 676. PROCEDURE. See tit. Pleading and procedure. PROCEEDS. application of, of sale to junior executions, 781. insufficient, prorating, 46.5. purchaser having notice of facts affecting priorities, 781. PROFESSIONAL SERVICES, on a mine. book-keeper not entitled to lien, 91, note. cook is not entitled to lien, 91. geologist not entitled to lien, 123, note. lien allowed for, when, 123, note. mining expert not entitled to lien, 123, note. watchman, not entitled to lien, 127, 128, note. PROMISE TO PAY. finding as to, 738. PROMISES. dependent and independent, 172. PROPERTY. correct description. meaning of, 34S, note. under statute required, 347, note. description of. See tit. Description of property to be charged. in claim of lien, 347. distinguished from " object," 133. divisions of, 133. sufficient for identification, 348. under early statute, 348, note. PRORATING. in case of insufficient proceeds, 465. PROSPECTIVE PROFITS. allegation of, in action for damages for breach of contract, 647, note, PROTEST. submission to arbitration without, effect, 182, note. GENERAL INDEX. 1011 PROVISIONAL REMEDIRS. See tit. Remedies. PUBLIC BODY. contract to provide mp.terial, construction, 174. PUBLIC BUILDING, ETC. right of subcontractor where contractor fails to pay, 76, note. PUBLIC MONEYS. garnishment of, 591, note. PUBLIC PROPERTY, mechanic's lien does not attach to, 153. PUBLIC SCHOOL HOUSE. bond given by contractor for erection of. as to, generally, 219, note, action on, 220, note. PUBLIC TRUSTEES. notice to, additional to remedy on bond, 522. service of. given to trustees of state building, 522. notice of claim of lien upon, 521. PUBLIC WORK. bond of contractor on, 219, note, 570. by trustee of state agricultural college, 571, note, liability of sureties on, 571, note, sehoolhouse, bond of contractor, 219, note, who may resort to bond, 571, note. PUBLICATION. of notioe of sale, impeaching record of, 778, note. PUMP. placed in water-works, lien for, 94. PURCHASER. See tits. Owner; Owner, employer, or person cau.sing improvement, and lien-holders. defective claim of lien as notice to bona fide third parties, 538. rights of, .537. as implied agent of grantor, 532, note, assuming debt, personal judgment against, 759. mortgage for, priority as between, and meclianic's lien, 458. name of, in claim of lien. See tit. Names required to be stated in claim. 1012 GENERxVL INDEX. PURCHASEE (continued). of property of estate assuming debts, not estopped, 700, note, two or more, statement of names in claim, 330. QUANTITY, statement of claim showing, 337, note. QUANTUM MERUIT. action on, based upon request, 584, note, amendment setting up, 726, note, evidence in suit brought on, 690, note. recovery on a, in an action on one account for the total sum due, 618, note. QUESTIONS OF FACT. as to what are, 703. QUESTIONS OF LAW. as to what are, 704. QUESTIONS RAISED IN THE DECISIONS. as to the California mechanic's-lien law, 3. RACETRACK, in fair-ground, amount of land necessary lor, 396, note, RAILROADS, application of mechanic's lien to, 301, 403, note, contract to grade, 172. description in case of, in claim of lien, 357. extent of land subject to mechanic's lien on, 404. filing mechanic's lien on extension of, 403, note, lien rn, given by Oregon statute, 13, note, 17, mechanic's lien on, as to, generally, 352, note. extends to what, 403, 404. place of filing claim of lien for record, 375, powder used in construction of, subject of lien, 90. structure within provisions of mechanic's-lien law, 144. tools used in construction of, not subject of mechanic's lien, 88. RATIFICATION, of contract, 164. REASONABLE ATTORNEYS' FEES, See tit. Attorneys' fees REASONABLE PRICE. variance as to, effect, 714, GENERAL INDEX. 1013 REASONABLE STIPULATIONS. when implied in contract, 174. REASONABLE TIME. determination of what is a, 175, note. REASONABLE VALUE. variance between pleading and proof as to, immaterial, 722. REASSIGNMENT. to claimant of assigned claim, 538, note. REBUTTAL. testimony of contractor in, on charge of malperformance of work, 694, note. RECEIPT. prima facie evidence of facts recited, 677. RECITALS. in decree in foreclosure, 762. RECORD. See tit. Recordation. insufficient on appeal, 791. of claim of lien, purpose of, 297. on appeal. See tit. Appeal. insufficient, 791. RECORDATION. necessity of one or more claims, 298. notice of, limited to subsequent mortgagees and purchasers, 447, note. of claim of lien, purpose of. as to, generally, 297. to inform other claimants, 298. to perfect lien, 298. of contract, not necessary in California, 230. of original contract, when required, 223, note, place of filing for. as to, generally, 375. in case of railroad. 375. removal of claim of lien from recorder's office, 375. RECORDED CLAIM OF LIEN. denial, in answer, on inforinutioii and belief, 659. evasive denials. See tit. Answer, exception to rule, 659. 1014 GENERAL INDEX. RECORDER. indorsement of filing of claim of lien prima facie evidence of what, 687. RECORDER'S OFFICE. removal of claim of lien from, 375. REDEMPTION. as to right of, 782. by subsequent mortgagee not made party, 782. REDUCTION. of attorney's fee. See tit. Attorneys' fees. REDUCTION- WORKS. erected upon a mine, lien upon, 140. on mining claim, included in mechanic's lien, 409. REFORMATION OF INSTRUMENT. priorities in case of, 460. RELATION, doctrine of. as to, generally, 450. distinction as to time at which lien attaches, 452. in case of mine, 451. RELEASE. See tit. Release of lien. of assignor of contract, 580, note, of prior assignment, 543. RELEASE OF LIEN. See tits. Forfeiture; Waiver of lien, as to, generally, 580. agreement to assign claims to owner. as to, generally, 581. agreement does not constitute an accord, 582. pro rata amount left blank, 581. where owner does not seek any compromise, 582. composition agreement. See tits. Arbitration; Composition agree- ment. as to, generally, 580. definition of, 580. effect of compromise agreement. as to, generally, 582. all creditors need not sign, 582. modifying agreement by oral qualifications, 582. note for release of surety's lien without consideration, 580, note. GENERAL INDEX. lUlo RELEASE OF LIEN (continued;, obtained by fraud, 580. release of assignor of co7itract, 580, note. REMEDIAL PROVISIONS. See tit. Remedies. liberally construed, 30. REMEDIES, cumulative. as to, generally, 583. action by material-man. See tit. Material-man. as to, generally, 589. action by original contractor. See tit. Original contractor. as to, generally, 585. action by owner. See tit. Owner. as to, generally, 590. action by owner's laborers. See tit. Owner's laborers. as to, generally, 589. action by subelaimants. See tit. Subclaimants. as to, generally, 588. action for damages for failure to give bond, 589, note, action on quantum meruit, 584, note, attachment for moneys due, 584, note, election where several suits commenced, 584. express contract, common counts, 584. nature of action to foreclose lien. See tit. Foreclosure of lien, personal action, 583. personal judguient. See tit. Personal judgment, allowed in action to foreclose lien, 584, note. for amount due, effect of, 585, note, suit to foreclose lien. against property and fund, 585, note, for labor on threshing-machine, 585, note, where remedies given are, 584. enjoining sale under process, to protect mechanic's lien, 592, note, injunction against sale on foreclosure of lien where wife not made party, 592. provisional. as to, generally, 590. attachment. See tit. Attachment, as to, generally, 591. garnishment. See tit. Garnishment, after suit commenced, 591. before suit commenced, 591. of public moneys, 591, note, materials exempt from, 592. for damages claimed for breach of contract by delay to deliver, 591, note. 1016 GENERAL INDEX. EEMEDIES. Provisional (continued), injunction. as to, generally, 592. fund not deposited in court, 592. materials exempt from attachment, 592. statutory provision, 590. BENTS. damage for loss of, by failure of contractor to complete, 69, note. REPAIR. counters and partitions added to building as fixtures are a, 121. distinction between, and " alteration," 121. REPEALS. by implication, not favored, 46. direct, of act repeals amendments, 46. not affected by provisions devoid of constitutional force, 46. REPRESENTATIVE CAPACITY. authority of persons acting in, to confer right to mechanic's lien, 420, note. REPUDIATION. of part of contract with architect by owner, rights of architect, 590, note. " REPUTED." amendment inserting, before the word " owner," 503, note. REPUTED OWNER. See tit. Owner. cannot bind property for street improvements, 6, note, distinction between, and owner, 468. estoppel of owner by acts of, 40. powers of, 39. REQUEST. of owner. See tit. Owner. of person named, sufficiency of allegation in statement of claim, 328. REQUIREMENTS. of statutory original contract, 224. RESCISSION. consent of owner to, 283. of contract, as evidence of fraud, 700. GENERAL INDEX. 1017 RESOLUTION. of board of supervisors as certificate, 683, note. RETROSPECTIVE LAWS. as to, generally, 41. contract under existing law not affected by subsequent act, 42. extension of statutory agency by the amending act, effect of, 42, note. EIGHT CONFERRED BY MECHANIC'S LIEN. nature and scope of, 20. personal, in case of service of notice of claim of lien, 511. BIGHTS. under mechanic's-lien laws, how ascertained, 44, note, BIGHTS AND DUTIES, under statutory original contract, 202, note. BULES OF PLEADING. See tit. Complaint. as to, in action to foreclose mechanic's lien, 616. BUNNING ACCOUNT, time begins to run against mechanic's lien on, when, 453, SALE, as to, generally, 778. application of proceeds to junior executions, 781. as to, of different parcels subject to different rights of claimants, 779, note, deed on, the, 781. enjoined, under other process to protect mechanic's lien, 592, note. where wife not made party, 592, note, manner of executing judgment, 779, of lease-holder's interest, 782. on general. creditors foreclosing lien, 779, note. execution, 778, note. order, directing amount of land to be sold. See tit. Land, directing sale of entire building on foreclosure of lien, 765, marshaling assets of, 778, note, publication of notice of, impeaching record, 778, note, purchaser having notice of facts affecting priorities, 781. the deed, 781. time of, 780. unnecessary expenses on, not costs, 768, note. upon subsequent decree upon reinstatement of claim, 779, note. 1018 GENERAL INDEX. SALE (continued). void order of, directing distribution, 778, note. " writ " not an " execution," 780. SECURITY. See tit. Surety. acceptance of note as waiver of lien, 575. assignment of, by instrument separate from debt, 541. taking additional, as waiver of lien, 575. title of assignee of, and right to enforce, 541. SEIZIN. instantaneous. See tit. Instantaneous seizin. SEPARATE LOTS. buildings on, under one contract, lien, 299, note, 300. SERVANT. See tit. Laborer. definition of, 103, note. SET-OFF. See tit. Offsets and counterclaims. by owner, of costs and interest against contractor, 769. SEVERAL NOTICES. effect of serving, 524. SEVERANCE. of building from freehold, change of character of property, 152. SEWER IMPROVEMENT. personal judgment against contractor, error when, 757, note. SEWERS. a system of, is an improvement to lots entitling contractor to lien, 148. SHAFT. See tit. Mines and mining claims. true significance of word, 127. SHELVING. lien for installing, 151, note. SHOVELS. See tit. Tools. SHRINKAGE. of embankment, evidence to show, 675, note. SIDEBOARDS. lien for installing, l.^l, note. GENERAL INDEX. 1019 SIDEWALK. part of building, under certain circumstances, 147. SIGNATURE. of notary to verification, omission of place of residence, effect, 362, note, sufficient, to notice, 502, note, to claim of lien, 360. SIGNING. See tits. Signature; Subscription. time of, in statutory original contract, immaterial, 227. SITU. cost of labor for placing in, where charged as part of cost of materials subject of lien, 91. material-man placing in, lien for labor, 81. SPACE. for convenient use and occupation. See tit. Convenient use and occu- pation, as to, generally, 395. construction of phrase, 395. judgment of court may be exercised when, 396. liens properly confined to, 396. • SPANISH GRANT. land held under, not within statute, 145. SPECIAL CASE. mechanic's-lien proceedings not a, within constitution, 49. SPECIAL DEFENSES. See tit. Answer. setting up, 660. SPECIFICATIONS. deviation from, does not discharge sureties when, 565, note. lien of architect for, 120, note. warranty of design or plan under express, 175. SPIRIT. of the mechanic's-lien law. as to, generally, 6. a privilege, in Utah, 7, note, extraordinary right, in Oregon, 7, note, in Colorado, 7, note. in Oregon, 7, note. in Utah, 7, note. 1020 GENERAL INDEX. SPLITTING DEMANDS, not allowed, 341. STAKE-HOLDER. owner as a, 490. STAMP-MILL. erected upon a mining claim, lien upon, 141. STATEMENT. as to improvement, 336, note, does not mean an " account," 333, note, embracing several assigned liens, 31-5, note. in claim for lien. See " Claim of lien," this title, and tit. Claim of lien, fullness required in, 308. name required to be inserted in. See tit. Name, of demand. See tit. Demand. against two or more buildings. See tit. Buildings, as to, generally, 317. after deducting credits and offsets, 312. commingling lienable and non-lienable items, 316. " demand." construction of, 313, note, means what, 313. errors or mistakes in statement of, 312, note, object of provisions for, 315. sufficency of, 315. truth of, 309. unnecessary in. as to, generally, 309. contractual relation with owner, 310. implication of law, 309. knowledge of owner, 309. other matters, 310. surplusage, 312. variance in, from strict requirements, 309. what generally required, 308. in memorandum filed. defective, 241. must not be too general, 238. of work to be done, general principles, 238. in memorandum of contract, defective, 241. of claim of lien. See " In claim of lien," this title, and tit. Claim of lien, for labor performed by day, at specified prixje amounting to more than one thousand dollars, 342, note. GENERAL INDEX. 1021 STATEMENT. Of claim of lien (continued). itemizing. See tit. Itemizing. nature, must be correctly stated in claim, 343. sufficienc}' of, 342, note. when must show contract with contractor, 327, note, of price of labor in claim of lien, 340. setting out contract price and demanding sum of $ , 315, note. showing quantity, time, value, etc., 337, note. terms, time given, and conditions of contract, fatally defective when, 336. STATEMENT OF CLAIM. false, effect of, 314, note, insufficiency of, 329, note, itemizing. See tit. Itemizing. made part of claim, 314, note, sufficiency of, 334, note. STATEMENT OF INTENTION. to perform labor or furnish material, under Utah statute, 294, note. STATUTE. California. See tit. California. difficulties of, 3. contract for building made with reference to, 161. new act. effect on existing contracts, 42. saving clause in, effect on existing claims, 43. specifying classes for which lien is given, impliedly excludes all others, 114, note, structures enumerated by. See tit. Structures, to be carefully studied in all cases, 2, 5. STATUTE GIVING THE LIEN. California. See tit. California, other states, tabulation of, 5. STATUTE OF LIMITATIONS. against action on bond, f^rc tit. Bond of contractor. against cross-complainant, 594, note. against foreclosure of lien on threshing-machine. 593, note. begins to run on mechanic's lien on open account when, 170, note. court to determine issue as to limitations, 594, note. in action against. school board by architect, 593, note. sureties on contractor's bond, 594, note, must be pleaded, to be availed of, 594. 1022 GENERAL INDEX. STATUTE OF LIMITATIONS (continued). pleaded to some of counts only, nonsuit not granted, 734. ruiming of. against enforcement of mechanic's lien, 593, note. on cessation of work, 28.5. time when begins to run against mechanic's lien, 370, note. STATUTORY AGENCY. See tit. Agency. undue extension to, of rules applicable only to common-law agency, 535. STATUTORY BOND. See tit. Contractor's bond. contract void, bond valid, 553. formalities of, 552. liability on, 554. sureties and liabilities. See tit. Surety. void, effect on claimants, 552. when enforceable as a common-law obligation, 554, STATUTORY EQUIVALENT. acceptance, waiver, 283. cessation of labor for thirty days. as to, generally, 284. as affected by validity or invalidity of contract, 287. character of cessation, 286. running of statute of limitations, 285. scope of provision, 285. character of occupation or use, 281. consent to abandonment or rescission of contract, 283. occupancy and use, 280, 281. of completion of contract for purpose of filing claims of lien, 279. void contract, 282. STATUTORY ORIGINAL CONTRACT. See tits. Building contract; Contract, allegation that, was in writing, not necessary in action to foreclose lien, 619, note, compared with non-statutory original contract, 202. construction of, 176. contract price. computable, more than one thousand dollars, is a, 203. less than one thousand dollars is not, 202. definition of, 166. duty of owner to file, 479. effect of validity or invalidity of . as to, generally, 244. abandonment of contract, 246. GENERAL INDEX. 1028 STATUTORY ORIGINAL CONTRACT. lOffect of validity or invalid- ity of (continued). breach by nonfeasance or malfeasance of contractor, damages by owner, 249. effect of invalidity of contract, as to, generally, 250, 2.36. classes affected by invalidity of contract, 2.51. contractor's lien, or express or implied contract, 2.32. effect as between parties to contract, 251. evident intent of statute, 2.51. failure to file contract, rights of subclaiinants, 255. how far contract effective, 256. lien claimants. must follow statute, 255. other than the original contractor, 254. material-man is not estopped by what, 256. to what extent contract may be looked to by parties, 252. void contract cannot be basis of recover^', 252. where there is no contractual relation between owner and claimant, 254. evading statute by filing contract price less than one thousand dollars, 203. how far subclaimants bound by terms of, 246. lumber and workmanship below contract requirements, effect of, 247. must be entered into, before work commenced, 226. owner's liability under, as to, generally, 244. limitation on power of legislature, 245. validity of contract as notice, 245. owner's redress for failure to comply with terms, 248. penalty in, 176. presumption as to knowledge of subclaimants, 246. provisions as to, not applicable to non-statutory original contracts, 204. rights and duties under, 202, note, subcontractors bound by, 78. subject to change and modification by the parties, 260. substantial compliance with contract, 250. verbal and void. claimant must comply with provisions of statute, to secure lien 296. does not relieve claimant from complying with provisions of statute, 296. void. lien of subcontractor for value of work, 76. rights of subcontractor under, 78. 1024 GENERAL INDEX. STATUTORY ORIGINAL CONTRACT. Eflfcct of validity or invalid- ity of. Void (continued). statement of claim of lien, 327. suit on, by original contractor, 588. what in no event is a, 204. rights and duties under. 202, note. statutory requirements essential to validity, as to, generally, 222, 223. statutory provision. conspiracy as to contract price. as to effect of, 242. penalties for, 243. construction of code provision, 22.5. filing necessary. as to, generally, 229. copy of contract, 233, note, duty to, rests on whom, 230. failure to file, effect, 229, note, necessity for, 230. need not be recorded, 230. object of, 230, 231. reference to matters dehors the contract. 232. what a sufficient filing, 234, when contract refers to plans and specifications as signed. 233. where plans and specifications are referred to, 232. whole contract must be filed, 232. memorandum of contract. See tit. Memorandum of contract, analogies suggested by defective statements, 241. contract, or copy thereof, as memorandum, 235. description of property to be affected thereby, 237. drawings and plans which are part of the contract, 237, note, erroneously describing the adjoining lot, 237, note, expression in, of "drawings hereto annexed," construction, 240. general effect of provision for, 234. names of all parties to the contract, 236. object of filing memorandum, 235. payments, as to, generally, 241. purpose and object of provision, 23.5. reference to detail drawings, 241. reference to plans and specifications, 239. should show dimensions and character of work, 238. statement as to erection of building in conformity to plans, drawings, etc., 239, note, statement as to purpose for which building is intended, 238, note. GEXERAL INDEX. 1025 STATUTORY ORIGINAL CONTRACT. Statutory requiroments essen- tial to validity. Statutory provision. Memorandum of contract (continued). statement in, must not be too general, 238. statement of the general character of the work to be done, 237. statement of work, general principles, 238. statutory provisions as to, 234. what not required in memorandum, 23.5. where does not disclose there were any plans, 240. where memorandum gave size of lot, etc., 239, note, must be entered into before commencement of work. as to, generally, 226. estoppel as to invalidity of contract, 226. must be in writing. as to, generally, 226. plans and specifications referred to not filed with, 227. referring to adjoining house as pattern, 227. must be subscribed. as to, generally, 228. actual time of signing, immaterial, 229. as to signing plans and specifications, 22S, note. drawings and specifications, as to signing, 228, note. place of filing contract or memorandum, 242. recordation. not necessary, 230. of original contract, when required, 223, note, requirements of statutory original contract, 224. time of filing contract or memorandum. as to, generally, 242. general rule as to, 242. what not essential to validity of contract. 224. Statutory requirements not essential to validity of whole, payments in general, 207. provisions avoiding certain clauses. impairment of liens, statutory provisions, 220. in case of non-statutory contract, 221. provision not applicable when, 221. waiver or impairment of lien, 221. provisions imposing a penalty, 207. statutory provisions, as to, generally, 207. contract price not to be payable in aavance of work. as to, generally, 209. under act of 1862, 209. contract price payable in instalments or after completion. 210. Mech. Liens — 65 1026 GENERAL INDEX. STATUTORY ORIGINAL CONTRACT. Statutory requirements not essential to validity of whole. Statutory provisions (con- tinued), contractor's bond. action for failing to take bond under statute, 218, note. complaint in action on, 219, note. decisions concerning bond, 219. effect of giving, common-law obligation, 218. failure to file, action for damages for, 219, note. insufficient when, 219, note. is collateral obligation enforceable by subclaimants, 219, note. limitation of action on, 219, note. of contractor on public school house, 219, note. provision for, unconstitutional, 217. suit on bond, 220. general rule as to payment, 212. object of provisions. as to, generally, 208. as to payment, 212. owner pays at own risk, 212. partial payments may safely be made by owner, 212. payment. in money, 216. of bills, provisions for, sufficiency of, 211. of twenty-five per cent, thirty-five days after completion, 211. provided for to material-men, 210. provision. as to liens, 215. for withholding percentage of contract price, 211. scope and object of provisions, 208. stipulated payments, as to offsets against, 211, note, substantial compliance required, effect of, 208. sufficient compliance with statute. as to, generally, 213. last payment thirty-six days after completion, 213. less than twenty-five per cent reserved, 214. substitution of, thirty days after completion, sufficient when, 214. third payment to contractor, 210. what not substantial compliance, 214. STATUTORY PROVISIONS. as to. agency in creation of mechanics' liens, 530. claim of lien, resemblance between, 292. extent of lien, 764. forfeiture bj' false or excessive claim or notice, 577. GENERAL INDEX. 1027 STATUTORY PROVISIONS. As to (continued). parties plaintiff in foreclosure of mechanic's lien, 602. I^lace of commencing action to foreclose lien, 597. provisional remedies, 590. waiver of lien, 574. of California, 134. special, as to agency, 677. STATUTORY REQUIREMENTS. as to notice of claim of lien, 525. STAY BOND. lien enforced when, 791. STAY OF PROCEEDINGS. in case of bankruptcy, 725, note. STEAM PLANT. material-man placing in situ, lien, 81. STIPULATION. does not remedy defect when, 671, note. estoppel by, 724, note. waiving service of notice of appeal, 790. STOPES. See tit. Mines and mining claims, true significance of word, 127. STOVEPIPE-FLUE. cover for a, not a fixture, 94, note. STREET IMPROVEMENT. See tits. Grading; Street- work. notice of non-responsibility not required in case of, 441. reputed owner cannot bind property for, 6, note. STREET- WORK. See tits. Grading; Street improvement. and grading under code provisions, 347. as to whether provision requiring notice of completion, etc., applies to, .382. digging up and disturbing, as evidence of grant under ordinances, 683, note. grading and other work, lot in incorporated city, includes what ter- ritory, 402. inchoate contract for. 162. materials furnished for, lien, 95. new trial on appeal in case of conflict of evidence, 803. no statutory original contract for, 166. request for, by real owner, gives lien, 161. 1U28 GENERAL INDEX. STRICT CONSTRUCTION. See tit. Construction. STRUCTURES. as to notice of completion or cessation from work on, 383. as used in statute, does not relate to sidewalks in streets, 118. enumerated in statute. as to, generally, 141. aqueduct, 142. bridges, 141. buildings, 141. church is a building, 141. dance-hall, being covered and resting on sills, 141. ditch, 142. flume, 142. machinery a fixture upon realty, 143. railroads, 144. tunnel in mining claim, 142. well, 142. in general, first clause of statute, 138. land for convenient use and occupation of. See tit. Convenient use and occupation, lien. See tit. Lien. allowed for, 118. on portion of, 403. on, separate from land, 14. primarily upon, 151. meaning of, as used in mechanic's-lien law, 136, 137, note. not enumerated in statute. as to, generally, 139. boarding-house on mining claim, 139. ice-room attached to warehouse, 140. pipe line for an irrigation company, 140. poles set in ground for an electric line, 140. reduction-works upon a mine, 140. stamp-mill erected upon a mine, 141. swings between upright posts on playground, 141. tramway erected upon a mining claim, 141. on a mine, oil-well, 138. several on one piece of land, 404. SUBCLAIMANTS. action against, by original contractor, .588. actions by. as to, generally, 588. under a valid contract, 589. under a void contract, 589. agency to receive notice of claims of, 536. GENERAL INDEX. 1029 SUBCLAIMANTS (continued). cannot acquire any rights against owner when. 49.5, note, conclusively presumed to have knowledge of original contract when, 246. cutting off rights of, by assignment, 543. distinction between, and original contractor, 508. entitled to interest. See tit. Interest, as to, generally, 753, note, in case of unliquidated claims, 753, note. how far bound by terms of valid original contract, 246. necessity of showing contractual relation between owner and employer, 338, note. no means of knowledge on failure to file statutory original contract, 255. personal judgment against contractor on default, 760. right to enforce bond as collateral obligation, 219, note, rights in fund on abandonnieut of void contract, 250, note. under a valid original contract may allege work was done at request of owner, 625. variance between complaint of, and proof, immaterial when, 723. SUBCONTEACT. definition of, 166. not an " original contract," 165. SUBCONTRACTOR. and employees of material-man, 74. architect as, 111. bound by contract. as to, generally, 78. of person through whom he claims, 247, note, claimant of, entitled to interest. See tits. Interest; Subcontractor's claimant, claimants under, extent of lien, 413. contract of. and contractor, effect on lien, 412. not an " original contract," 165. cutting off rights of, by original contract, 75, note, deemed to have contracted with owner where original contract void, 76. definition of, 72, 529, note, degrees of, 73. distinction between. and assignee of original contractor, 72, note. and material-man, 73. general rights of, under constitution, 74. 1030 GENERAL INDEX. SUBCONTRACTOR (continued). interest of his claimant a charge against, 755. liability of surety where contract and bond contemplate employment of, 558, note, lien allowed to, 118, note. lien not given to, as such, by constitution, 32. lien of. See tit. Lien. as to, generally, 72, note, 73, note. for value of work, although included in contractor's claim, 77. where contractor makes no application of payments to, 75, note, materials must be such as contract calls for, to entitle to lien, 247. no contractual privity between owner and, 530, note, no interest in fund provided by contractor to protect owner against liens, 74, note, not agent of owner to determine value of materials, 529, note, not converted into original contractor by void contract, 73. not merely subrogated to rights of original contractor, 75, note, obligations of, general, 77. personal. liability of, to his own material-man, 78. rights of, against contractor, 76. prevented from performing by original contractor, not liable on bond, 75, note, priority of lien of original contractor, 77. privity of contract between, and owner, is wanting, 73, note, proper party in action to foreclose lien, 60S. rights of. in case of public building, etc., where contractor fails to pay, 76, note. to file claim of lien, although amount included by contractor, 77. under void original statutory contract, 76, 78. where original contract valid, 75. state of account of, between, and original contractor, 413, note. variance of contract by, liability of surety on bond of original con- tractor, 55S, note. SUBCONTRACTOR'S CLAIMANT. interest of, a charge against subcontractor, 755. SUBMISSION TO ARBITRATION. See tit. Arbitration agreement. SUBSCRIPTION. statutory original contract, to, necessary, 228. SUBSEQUENT AGREEMENT. change of statutory original contract by, 261, note. GENERAL INDEX. 1031 SUBSTANTIAL COMPLIANCE. See tit. Performance, in statutory original contract. what is a, 213. what is not a, 214. required in statutory original contract, 208. with statute as to names in claim of lien, 318. with statutory original contract, what is, 250. SUBSTANTIAL PERFORMANCE. See tit. Performance. finding as to, 740. generally required, 274, 275. SUFFICIENCY. of notice of claim of lien, 526. SUFFICIENCY OF IDENTIFICATION, in description of property in claim of lien. as to, generally, 3-lS. a question of fact, 351. SUMMONS. alias summonses in consolidated action, 600, note. as to service of, in action to foreclose mechanic's lien, 600. publication of, 600, note. service of. by publication, 600, note. on cross-complaint unnecessary, 600, note. on one spouse, where community property involved, 600, note, time of service of, on foreign corporation, 600, note. SUPERINTENDENT. of construction, lien allowed for, 120, note, 123, note. of corporation erecting a building performing no manual labor, no lien, 119, note. " SUPERINTENDENT OF A MINE." distinguished from " mining superintendent," 124, note. SUPERINTENDING CONSTRUCTION. lien of architect for, 120, note, 123, note. SUPERIOR COURT. See tit. Supreme court. jurisdiction to foreclose mechanic's lien, 598. SUPPLEMENTAL ANS'WER. See tits. Answer; Pleading and pro- cedure. as to, generally, 656. decree of foreclosure of mortgage may be set up in, 068. 1032 GENERAL INDEX. SUPREME COURT. See tit. Superior court, application for attorneys' fees in, 776, note, lower court fixing attorneys' fees in, 776. SURETY. See tit. Security. application of payments for benefit of, 557, note. as lien claimant, 561. as to counterclaim of, 551, note. completing contract. on death of contractor, 560, note. on default of contractor, 560, note, corporation as, 551, note. distinction between voluntary grantor and compensated, 551, note, estopped, in action on bond, by judgment of owner against contrac- tor, 561. finishing building after abandonment, 550, note, liability for damages. See tit. Damages. as to, generally, 568. extras, for, 570. for excess of cost on abandonment, 569. interest as damages in action on bond, 569, note. liability, and amount thereof, question for jury, 569, note. on contractor's bond, on failure of owner to secure certificate of architect, 568, note. liability of. for attorneys', fees. See tit. Attorneys' fees. on contractor's bond to laborers and material-men not entitled to lien, 550, note, not discharged by deviations from specifications, 565, note, not estopped to foreclose lien, 699. not liable as contractors, 565, note. not released. by contractor having partner unknown to owner and, 551, note. from obligations for contractor when, 563. where payments under contract made monthly, 565, note, obligee depositing sufficient funds in hands of, 563. on contractor's bond, liability of. as to, generally, 555. application of payments for benefit of surety, 557, note. assignment to, 545. auditing accounts as provided in contract, 558. bond conditioned for faithful performance by the contractor, 558, note. changes in contract authorized thereby, as to, generally, 557. provision for benefit of contractor that alteration should be made in writing, 557, note. GENERAL INDEX. 1033 SURETY. On contractor's bond, liability of (continued), contract for liquidated damages against, 558, note, entitled to stand upon the strict terms of the contract, 556, note, liable, even though there is a variance from the contract, 558, note, limitation of action against, 594, note, material alteration of contract, effect on, 556, note, on change of plans at additional cost, 557, note, original contract as basis of, 557. provision that owner should pay receipted bills as they become due, does not release, 557, note, where contract and bond contemplate employment of subcontrac- tors, 558, note, parol evidence admissible to show supposed principal a, 675, note, premature payments exonerates. See tit. Payment, as to, generally, 564. unless bond provides payments may be made prematurely, 565, note, unless pa3Mnent was made with knowledge and consent of surety, 565, note, waiver of defense of premature payment by provision in bond, 565, note, release of, without consideration, 580, note, rights of, notice, 560. under legal obligation not to foreclose lien, 562. SURPLUSAGE. in statement of claim of lien is immaterial, 312. SURVEY. admission as to correctness of, 672, note. of lot, claimant not required to make, before filing claim of lien, 350. SWINGS. erected upon playground, lien upon, 141. TEAMING. for material-man, no lien for, 132. TECHNICAL DEFECTS. in complaint to foreclose lien, cured by acts of parties when. 619. TENANT. contract by, with consent of landlord, binding on propertv, 58. evidence of non-liability of, 671, note. mechanic's lien on landlord's interest created by, 532, note. 1034 GENERAL INDEX. TENDER. See tit. Tender before suit, allegations of, stricken out of answer, 661. as admission of amount due, 725, note, failure to make or to offer to allow judgment, effect, 492. TENDER BEFORE SUIT. See tit. Tender. costs of claim of lien not demandable on, 725, note. TERMS AND CONDITIONS. of contract, sufficient statement of, in claim of lien, 34?), note. TERMS, TIME GIVEN, AND CONDITIONS OF CONTRACT. See tit. Claim of lien, as to, generally, 333. amount of entire contract price should be given, 343, 639. time given and conditions should be set out, 639. to be set out in complaint to foreclose lien, 639. TERRITORIAL EXTENT OF LIEN. See tit. Limitations on liens. TEST. as to whether claimant an original contractor. See tit. Original contractor. of labor entitling to a lien, 132. THEORY. of the mechanic's-lien law. See tit. Mechanic's-lien law. as to, generally, 7. in Colorado, 8, note. in Hawaii, 8, note. in Montana, 8, note. in New Mexico, 8, note. in Oklahoma, 8, note. in Oregon, 8, note. in Utah, 9, note. in Washington, 9, note. labor on a mining claim, 7, note. work in " developing," 8, note. THIRD PERSONS. as to, generally, 537, 550. assignees. See tit. Assignees. contractor's bond, rights under. See tits. Common-law bond; Con- tractor's bond; Statutory bond, defective claim of lien as notice to, 538. effect of decree foreclosing lien on, 751. general creditors. See tit. General creditors. GENERAL IXDEX, 1035 THIRD PERSONS (continued), lien-holders. See tit. Lien-holders, mortgagees. See tit. Moi-tgagees. purchasers. See tit. Purchasers. sureties, liability of. See tit. Sureties. THIRTY DAYS' CESSATION FROM LABOR. See tit. Notice of completion or cessation of work. as to, generally, 387, 388, note. default of building contractor or owner affecting statute of limi- tations, 3S7. subclaimants cannot file, whether contract valid or void, when, 388. THRESHING-MACHINE. action to foreclose lien for labor on, 585, note. costs in action to foreclose lien on, for less than jurisdictional amount, 599, note. TILING. material-man placing, in situ, lien, 82. TIME. actual, of signing statutory original contract, immaterial, 229. at which lien attaches, distinction as to, 452. certificate of architect, as affecting, 386. computation of, 378. failure to file claim within, effect, 376. first and last day in computing, 378, note. for filing claim under act of March, 1897, 370, note. for performance of non-statutory contract may be enlarged by parol, 261, note. having ceased, inchoate right to lien ceases, 371. of conimeucing action to foreclose lien. See tit. Statute of limita- tions. as to, generally, 593. against sureties on contractor's bond, 594, note. amendment of complaint relates back, 59o. as to running of statute of limitations against, 593, note. by cross-complainant, 594, note. credit giveu, 595. debt must be payable, 595. general rule as to, 595. in action to foreclose lien on threshing-machine, 593, note. issue of limitations determined by court, 594, note. right in plaintiff' and a correlative wrong in defendant, 595. of completion of building. " on or about," sufficiency of, in complaint to foreclose lien, 652. uncertainty in allegation of, demurrer, 652. 1036 GENERAL INDEX. TIME (continued). of filing claim. See tit. Filing claim. burden of proof of, 682. of filing contract or memorandum, 242. of giving notice of claim of lien, 523. of performance of contract. See tit. Performance. of non-statutory contract, may be enlarged by parol, 261, note. of sale. See tit. Sale. as to, generally, 780. purpose of requiring claim to be filed within certain. as to, generally, 372. in case of void contract, 374. statement of claim showing, 337, note, to foreclose lien upon fund, 596. when not fixed by statute, 378. when statute of limitations begins to run. as to, generally, 370, note. against mechanic's lien on running account, 453, note. "TIME GIVEN." construction of phrase, 345, note. refers to what in the statutory provision, 345. TIME OF PAYMENT, variance as to. between pleading and proof as to, immaterial, 722. effect, 716. TIME OF PERFORMANCE. construction of contract where unspecified, 174. TIME, PLACE, AND MANNER OF COMMENCING ACTION TO FORECLOSE LIEN. lis pendens. See tit. Lis pendens. manner of commencing action. See tit. Foreclosure of lien. place of commencing action. See tit. Place. time of commencing action. See tit. Time. TITLE. in trust, liability to mechanic's lien, 420. questions of, not adjudicated in decree foreclosing lien, 750, note. TOOLS. furnished in construction of railroad not subject of lien, 88. TRAINS. general manager of, performing manual labor in other capacities, lien of, 119, note. GENERAL INDEX. 1037 TRAMWAY. erected upon a mining claim for use in working same, lien upon, 141, 409. TRANSCRIPT. failing to show motion or order, dismissal, 792, note. TRESPASSER. liability of fee for improvements by, 484. TRIAL. See tits. Jury; Practice. after consolidation of actions, 728. by jury. as to, on foreclosure of mechanic's lien, 731. instruction to jury, 731. as to agency. and knowledge of principal, 731, note, in superintending work, 731, note, as to verbal alteration of contract, 731, note, comment on evidence by court in making, 731, note, conflicting, 731, note, exceptions to, 731, note, not excepted to, binding, 731, note, verdict of jury. as to, generally, 732. setting aside, 732. new. See tit. New trial. " TRIFLING IMPERFECTION." as to, generally, 272. meaning of term, 272. what constitutes, 273. TRUST RELATION. authority of persons in, to create right to mechanic's lien, 420, note. TRUSTEE. authority to confer right to mechanic's lien, 415, note, trustee in bankruptcy, place of foreclosing lien by, 598, note. TUNNEL. See tit. Mines and mining claims, a structure, under statute, lien upon. 142. contract to timber in workmanlike manner, 171. running a, as to, 127. true significance of work, 127. 1038 GENERAL INDEX. TWENTY-FIVE PER CENT OF CONTRACT PRICE. as to withholding, 211. need not be retained under non-statutory original contract, 204. payment of, thirty-five days after completion. as to, generally, 211. object of the provision, 212. owner pays at own risk, 212. partial payments may be safely made when, 212. what a sufficient compliance with provision, 213. what not sufficient compliance with provision, 214. withholding less than, sufficient compliance when, 214. TWO HOUSES. equal application of payment on. See tit. Payment. as to, generally, 198, note. lieu on. as to, generally, 462, 463, note. statutory provision, 462. when provision as to, applicable, 462. ULTIMATE FACTS. to be found, 739. UNCERTAINTY. See tits. Ambiguity; Contract; Pleading and pro- cedure, demurrer for, 655, note, of claim of lien. See tit. Claim of lien. UNLIQUIDATED CLAIMS. subclaimant entitled to interest on, 753, note. UNLIQUIDATED DEMANDS, interest on, 755. UNNECESSARY STATEMENTS. iu claim of lien. See tits. Claim of lien; Statement. UPRISES. See tit. Mines and mining claims. true significance of word, 127. USE OF MATERIALS. findings as to, 737. UTAH. mechanic's-lien law of, 6, 13. GENERAL INDEX. 1039 VALID CONTRACT. as to, goiicrally, 38. last paymeDt under, 496. liability of ovrncr or employer under, 494. payment of fund into court relieves from interest, 755. VALID OR VOID CONTRACT. pleading and proof ou, varianct; material, 720. variance as to, immaterial when, 713. VALID ORIGINAL CONTRACT. abandonment of, effect on priorities, 464. subordination of the original contractor to subclaimants, 464, note. VALID STATUTORY ORIGINAL CONTRACT. limitation of claimant's lien under, 481. notice of claim of lien in case of. as to, generally, 510, 513. in case of abandonment, 514. offsets and counterclaims of owner against contractor under, 471. VALIDITY. of claims of sublienors. burden of proof to show. 681. of contract. See tits. Contract; Statutory original contract. of decree on foreclosing of mortgage, 751, note. VALUE. as to proof of, 705. as used in statute giving lien construed to mean " agreed value," 412. of extra work. contract as evidence of, 705. express contract for, 705. of labor under void contract, 738. of materials furnished under void contract, 738. other evidences of, 709. market price as evidence of, 708. statement of claim showing, 337, note, usual price as evidence of, 708. valid contract as evidence of, 705. void contract as evidence of, 706, 707. VARIANCE. See tits. Bond; Complaint; Conflict. as to, generally, 710. as to current market price, 718. as to date of contract. generally, 718. interest after miiturity, 718. 1040 GENERAL INDEX. VARIANCE (continued), as to express contract, 718. as to implied contract, 718. as to nature of work, 719. as to person contracting, agoncy of contractor, 717. generally, 717. as to pleadings and proof. as to bond being signed by principals, 723. as to contracting directly with owner or agent, 720. as to contractual indebtedness, 721. as to fund, 721. as to Indefinite contract, 720. as to nature of work, 721. as to owner's employee, 723. as to person contracting, agency, 721. generally, 721. as to subclaimant, 723. as to time of payment, 722. as to valid or void contract, 720. generally, 719. immaterial. as to, generally, 722. as to express price, 722. as to reasonable value, 722. material variances. as to agreed price, 720. as to contract, 720. as to no price agreed, 720. as to regular market price, 718. between allegations and proof in case of husband and wife, 712. between claim of lien, and complaint, 711, note, and evidence, 713, note, and notice of intention, 711, note, and pleadings. in proof, 711. material when, 711. as an exhibit and allegations of complaint, 639. as exhibit and body of complaint, 653. between contract stated in claim of lien and allegations in com- plaint, 711. between pleading and proof as to, material, 721. by what rules governed, 713. immaterial. after trial on merits when, 65.5, note. as to being employee of original contractor, 723. GENERAL INDEX. 1041 VARIANCE. Immatorial (continued). as to bond being signed by principals, 723, as to express price, 722. as to name of reputed owner, 717. as to payment, 713. as to reasonable value, 722. as to time of payment, 722. as to what are, 712, 717, 722. in case of contractor as agent of owner, 712. in case of subclaimant setting up original contract, 713. in case of void contract, 712. in description of property, 713. liability of surety, where made by original contractor and subcon- tractor, 558. material. as to, generally, 711. as to agreed price, 714, 720. as to amount paid, 716. as to contracting directly with owner or agent, 720. as to contractual indebtedness, 721. as to deduction of credits and offsets, 716. as to express and implied contract, what is, 712. as to fund, 721. as to indefinite contract, 720. as to nature. of labor, 716. of work, 721. as to person contracting. agency, 721. generally, 721. as to reasonable value, 714. as to the contract, 720. as to time of payment, 716. as to valid or void contract, 720. as to what are, 714. as to work and materials, 712. in claim and proof, 713-716. pointing out specific objection as to. between contract as set out in complaint and in claim of lien, 688, note, of claim offered and claim pleaded. 688, note, technical doctrine of, of common law, has no application, 719. VENDEE. in possession. interest of, bound by mechanic's lien, 421. making improvements, estoppel, 438. of land under contract with owner, liability to mechanic's lien, 418. Mech. Liens — 66 1042 GENERAX, INDEX. VERBAL ALTERATIONS. of original contract, 194. VERDICT, not set aside as being against evidence when, 797, note, plaintiff not entitled to interest prior to, 755, note. VERIFICATION. See tit. Complaint. by agent, 364. by attorney, 364. by attorney for foreign corporation, 362, note, errors in, effect of, 364. of claim of lien. See tit. Claim of lien. as to, generally, 361. containing more than statute requires, 362, note. form of, 362. provisions as to verifications of pleadings not applicable, 362. of complaint, as to, 648. omissions in. effect of, 364. of place of residence of notary from signature to, effect, 362, note, time of, 364. VOID CONTRACT. See tit. Contract. abandonment of, liability of owner, 482. allegations in comj^laint to foreclose mechanic's lien under, 626. as a defense to foreclosure of lien, 663. burden of determining when is, 390. contractor. is agent of owner when, 531. right to costs, 769. fact showing original contract to be void need not be alleged, 626. filing claim of lien in case of, 374. findings as to. See tit. Findings. as to, generally, 745. sufficient to support judgment when, 747. liability of owner under, 497. no assumption of, in motion for nonsuit, 733. no defense in personam, 663. no lien under, for extra work, 195. original contract void, necessity of filing claim, 375. penal provision, 498. personal liability to subclaimants under, 499. presumption of knowledge by subclaimants of, 696. priorities under. See tit. Priorities. statute measure of liability under, 499. GENERAL INDEX. 1043 VOID CONTRACT (continued), statutory original. elaiinant under, required to file claim within what time, 389. original contractor abandoning coutract, subclaimants to file when, 390. unnecessary to allege, in complaint to foreclose lien, amount due to contractor, 626. VOID LIEN. cannot be converted into a valid one by consent, 16, note. VOID ORIGINAL CONTRACT. admissible in evidence for what purposes, 693. VOID STATUTORY ORIGINAL CONTRACT, notice of claim of lien in case of, 514. VOLUNTARY PAYMENTS. made by owner, effect, 68. WAGES. evidence as to adjustment of, 672, note. WAGON-ROAD. constructing, to mine, no lien for, 123, note. WAIVER. acceptance as a, 283. of certificate. See tit. Certificate. of condition procodont. See tit. Condition precedent. of defect in complaint, by failure to object, 651, note. Of lien. as to, generally, 572. entry of judgment, as to, generally, 576. right to a money judgment, 577. knowledge of lack of authority of employer, 575. owner cannot waive final certificate of architect, 572, note, statutory provisions in California, as to, generally, 574. under non-statutory original contract, 574, note, taking additional security. as to, generally, 575. acceptance of note, 575. by giving orders on mining company, 576. under act of 1856, 575, note, where material-man gives receipt, 576. under statute of 1856, 573, note. 1044 GENERAL INDEX. WAIVER (continued). of mechanic's lien, 216, note. of rights, contractor cannot make when, 71. or impairment of liens by matters dehors the contract, 219, note. rejection of evidence as to, of provision in contract, 685, note. WARRANTY. performance of, 271. WASHINGTON. mechanic's-lien law of, 6, 8, 13. WATCHMAN. See tit. Mines and mining claims. at mine. See tit. Mines and mining claims. employment by constructive agent of owner, 680. in idle mine, not entitled to lien, 127, 128, note, not entitled to mechanic's lien for services, 91, note. WATER-WORKS, extent of land subject to mechanic's lien on, 404. WELL. as object of labor in mechanic's lien, 636. lien upon. and " appurtenances," 395, note. as a structure, 142. WELL-HOLES. contract to bore two thousand feet of, 171. WIFE. court has no jurisdiction to foreclose lien against, where not made party, 752, note. memorandum of settlement made by, acting for community, 680, note. necessary party to foreclose mechanic's lien on community prop- erty, 592, note, 600, note, 605, note. not made party, sale on foreclosure of lien enjoined, 592, note. of partner not necessary party to foreclose mechanic's lien, 605, note. personal judgment against, not reviewable on appeal without excep- tions, 792, note. property of, bound by husband's act when, 430, note. separate property of, bound by mechanic's lieu when, 426, note. " WITHIN." in statute providing for filing claim, 378. WITNESS. allowed to explain on redirect examination, 685, note, claimant against estate as a, 674. GENERAL INDEX. 1045 WITNESS (continued). oxaniiiiation of, questions assuming matter in dispute, 676. impeaching, as to estimate of work, 683, note. WORDS AND PHRASES. See tit. Definition. " abandonment," confounding with " cessation," 477, note. " action," what is not, but " special case," 18, note. " actual " time of completing structure, 385. " after deducting all credits," expression need not be used in state- ment of claim of lien, 31.5, note. " agreed price," in contract for improvement, 11. " alteration " distinguished from " repair," 121. " any such contract," meaning of, 259. " any such lien," in California statute, meaning of, 122, note. " any such mine," meaning of term, 122, note. " architect," definition of, 108. " as construed," confounding with " rule of construction," 21. " bestowed," meaning of, 116. " building," church is a, 141. " building or other improvement," meaning of, 135, note. " cash." condition of contract means nothing when, 346. means "money" or "ready money," 346. " caused," person who, improvement to be made, 66, 157. "cessation," confounding "abandonment" with, 477, note. "chutes," meaning of, in statute, 127. " claim of lien," not synonymous with " notice of lien " and " lien," 293, note. " completed," filing claim of lien when building is, 295, note. " completion," meaning of, 265. " completion of mining claim," 279. " construction, alteration, addition to, or repair," meaning of, 92, 120. " contract," what referred to, 287. " contractor," definition of, 54. " convenient use and enjoyment," equivalent to " convenient use and occupation," 395. " correct description," as to, of property, 348, note. " credit," as to meaning of, 34G. " crosscuts," meaning of, in statute, 127. " demand." construction of, 313, note. different from " statement of the terms," etc., 333. meaning of, 313. " developing " work in mine, 8, note. " drawings hereto annexed," meaning of, in memorandum of con- tract, 240. " drifting in a tunnel," not " construction, alteration, addition to, or repair of any building," 94, 126. 1046 GENERAL INDEX. WORDS AND PHEASES (continued). " equivalent to " completion, what is, 281. " execution," " writ " not an, 780. " for the value," not used in contradistinction to " price " or " agreed value," 411. "furnished," meaning of, 88. " further advances," what constitutes, 460. " future advances," what are, 549, note. " his contract," in statement of demand, refers to what, 338. " impairing obligations of contracts," 40. " improvement." equivalent to " objects," 893. in expression " building or other improvement," 117, 128, 136. in statute regarding mechanics' liens equivalent to what, 392, meaning of, as used in different sections of statute, 136. what is not, within meaning of statute, 359. " improves," meaning of, 128. " inclines," meaning of, in statute, 127. " intermediate " liens, as to, 55, 59. " levels," meaning of, in statute, 127. " levels," true signification of, 127. ♦' lien." meaning of, 293. not synonymous with " claim of lien," 293, note. " lot," in statute regarding street improvements, 393. " market value," is equivalent to " reasonable value," 341, note. " material," construction of word as used in claim, 342, note. " material-man." difficulty to determine whether, or an " original contractor," 60. meaning of, 80. " mine," as to what is a, 8. " mining claim." is applied to mineral lands appropriated by private persons, 145. land held under agricultural patent not a, 146. " mining superintendent " distinguished from " superintendent of a mine," 124, note. " money " or " ready money," word " cash " equivalent to, 346. " notice of lien," not synonymous with " claim of lien," 293, note. " object," distinguished from " property," 133. " occupied," construed to mean " employed," 369. " original contractor." definition of, 54. who is, 287. " owner." and " reputed owner," distinction between, 468. cannot be an " original contractor," 57. includes " person who caused improvement to be made," 467. " plaintiff " construed to mean " claimant," 369. GENERAL INDEX. ^"*^ WORDS AND PHRASES (continued). " pkiiit," lien for foundation or installing, 06. "privilege," mechanic's lien is, in Utah, 7, note. " property," distinguished from " object," 13iJ. " proved," by developing work, 8, note. " ready money," " cash " equivalent to, 346. " reasonable value " is equivalent to " market value," 341, note. "repair" distinguished from "alteration," 121. " reputed owner." distinction between, and owner, 468. expression used synonymously with what, 468, note, "rule of construction,' confounding "as construed" with, 21. " shafts." in mine, meaning of, in statute, 127. true signification of, 127. " special case." mechanic's lien action not a, 49. what is a, and not an " action," 18, note. " special proceedings," mechanic's lien as, 49. " statement " does not seem to be an " account," 333, note. " statutory " time of completing structure, 38.j. " stopes," meaning of, in statute, 127. " structure." a " mine " or pit sunk in a mining claim is a, 139. meaning of, 136, 137, note, 138. moaning of, as used in different sections of statute, 136, 138, " structures." as used in statute giving mechanics' liens, 8. in statute regarding mechanics' liens, 385. " subcontractor," meaning of, 72. " substantial compliance," as to, 26. " sufficient for identification." a question of fact, 351. as to when description is, 350. "terms, time given, and conditions of contract." as to number of statements of, 335, note. diff