SANTA MONICA LUMBER & MILL COMPANY, Respondent, v. J. H. HEGE et al., Appellants, 119 Cal. 376

HARRISON, J. Action for the foreclosure of a mechanic’s lien. In May, 1894, the defendant Hege being the owner of a' lot of land in the town of Santa Monica, on which there was a dwelling-house, verbally leased the same to his codefendant, Naumann. Shortly after Naumann had entered into possession he obtained permission from Hege to construct certain additions to the building, and for that purpose purchased certain materials from the plaintiff which were used in their construction.

August 11, 1894, the plaintiff filed with.the county recorder its claim of lien therefor upon the land and buildings, and afterward brought the present action for its enforcement. Naumann suffered default, and judgment was rendered against him for the amount claimed by the plaintiff, declaring said amount to be a lien upon the land, and directing its sale. From this judgment Hege has appealed. As the amount of the materials purchased from the plaintiff was less than $1,000 in value, the provisions of the code relating to a written contract and filing the same for record have no application.

Haumann caused the improvements to be constructed for himself, and the plaintiff, not being an “original contractor” (Sparks v. Butte County Gravel Co., 55 Cal. 389), was required to file its notice of lien within thirty days after the completion of the building. Unless the building was completed before the notice of lien was filed, the filing was premature and conferred no right to enforce the lien. (Roylance v. San Luis Hotel Co., 74 Cal. 275; Schwartz v. Knight, 74 Cal. 432; Willamette etc. Co. v.

Los Angeles College Co., 94 Cal. 229.) The court finds that the building was completed July 23, 1894, but this finding is attacked as not supported by the evidence. There is no evidence in the record fixing this day as the date on which the building was completed, "but, as it was sufficient for the plaintiff to show that the building was completed before its notice of hen was filed, any finding of the particular day was not essential and may be disregarded. There was a conflict of evidence upon this issue, and we cannot say that the finding of the court in favor of the plaintiff was erroneous.

Emerson, who worked as a carpenter on the building, testified that he finished work in the latter part of June, and that the buildings were completed “shortly after,” and that at the time of the trial the building was in the same condition as then. Naumann testified that the building was not finished on August 11th, and, as items of its incompleteness, mentioned, among others, that it had not been painted and that a sidewalk had not been constructed.

It was not shown that any plans of the building were «ver prepared, or that there was any test by which it could be -determined when it was completed, and, in the absence of such test, its completion would be determined by the court from all the circumstances shown by the evidence. Presumptively, a sidewalk would not be a part of a building; and, as it was shown that the building had never been painted, the court was authorized, in the absence of any evidence on the subject, to find that painting was not included in the original plan. The same may he said of the absence of eave-troughs and waterclosets.

The failure to make the ridge of the roof tight, or to putty the window glass on the outside, was a defective performance of the work rather than ■a failure to complete the building, and was properly considered by the court as a “trivial imperfection.” The court properly held that the building was constructed with the knowledge of the appellant, and that his failure to give the notice required by

section 1193 of the Code of Civil Procedure, rendered his interest in the land subject to the lien. The buildings were constructed by Uaumann with his permission, previously given, and the fact that they may not have been constructed in the particular form, or at the place which he authorized, does not relieve him from the knowledge that they were constructed upon his land.

In the notice of lien the plaintiff stated that it agreed to furnish such materials as were ordered by Uaumann for said buildings, and to furnish the same as ordered by him; that no definite time was specified for payment therefor, and that they were to be paid for at the current market price; that the amount of the contract price of said lumber and materials furnished as aforesaid is $344.59; that no part thereof has been paid, and that •there is still due and owing thereon, after deducting all just credits and offsets, the sum of $344.59.

In the complaint herein the plaintiff alleges that the defendants agreed to pay to plaintiff what said materials were reasonably worth, and that the material furnished by it was reasonably worth $344.59. It was shown at the trial that the plaintiff agreed with Uaumann to furnish the materials at the regular market prices; that the materials furnished were charged upon its books at the regular market price and amounted to the sum of $419.59, upon which there were credits to the amount of $175. The right to enforce a mechanic’s lien depends upon a compliance with the requirements of the statute.

Unless the notice of the lien which is filed with the county recorder contains the statements required by

section 1187 of the Code of Civil Procedure, the claimant is not entitled to his lien. This

section requires the claim of a materialman to contain “a statement of his demand after deducting all just credits and offsets,” and also “a statement of the terms, time given, and conditions of his contract.” The provision that the claim must contain these statements means that the statements thus contained must be correct and in accordance with the facts. If they are not correctly stated the right to a lien is lost. In Malone v. Big Flat etc.

Co., 76 Cal. 578, where the notice of lien stated an employment at a fixed rate of compensation, and the complaint proceeded upon a quantum meruit, it was held to be such a variance as to preclude a recovery. In Reed v. Norton, 90 Cal. 590, where the notice of lien set forth that the materials were to be furnished for what they were reasonably worth, and the proof showed that a portion of them were furnished at an agreed price, a recovery was denied upon the ground that the notice was not such as the statute requires. In Wagner v.

Hansen, 103 Cal. 104, the notice of lien stated that the claimant had furnished materials and labor for which he was to receive a fixed sum of money, and in his complaint made a similar allegation. At the trial he testified that, with the exception of a small item, there was no agreement as to price.

It was held that this was not only a fatal variance, but that it showed that the statute had not been complied with, and that the plaintiff had acquired no lien. ■The testimony in the present case shows that the terms of hTaumann's contract with the plaintiff for furnishing the material was the same as that stated in the notice of lien. The “regular market price” is the same as the “current market price,” and the averment in the complaint that hfaumann agreed to pay therefor what the materials were reasonably worth is not such a variance between the pleading and the proof as to authorize a reversal. (Code Civ.

Proc., sec. 469.) The effect of a variance between a pleading and the proof is not governed by the same rules as in the case of a variance between the notice of lien and the proof. The notice of lien must contain a correct statement of the facts required by the statute, and, unless so stated, no hen can be enforced; while a variance between the pleading and proof is not material unless the adverse party has been misled thereby to his prejudice.

If the action in the present case had been merely to recover for the materials furnished, proof of the market price would have been evidence of their value, and proof of an agreement to pay their market price would have sustained the allegations in the complaint. In another particular, however, the notice was defective, and did not authorize the court to enforce the lien against the appellant.

After stating the terms of the contract, the notice states that ■“the amount of the contract price of said lumber and materials furnished, as aforesaid, is $244.59, and that no part thereof has been paid”; and in the complaint to enforce the lien the plaintiff states that the material so furnished was and is reasonably worth the sum of $244.59, and that no part thereof has been paid, whereas the plaintiff showed at the trial that the amount of the contract price for the materials furnished was $419.59, and that there had been payments thereon to the amount of $175.

The plaintiff purported to state in its notice of lien the amount of the entire contract price, and it was required to state such amount truly. The appellant was not a party to this contract, and he had the right to be informed of the facts upon which the plaintiff claimed a lien upon his property.

By learning from Naumann that $175 had been paid upon the account for materials, he would have been authorized to settle with him upoh that basis; but, whether he did settle or not, there could be no lien upon his property unless the notice was given as required by the statute. “The purpose of the record and statement must be to inform the owner, in case of a contractor and laborers rendering service under such contract, as to the extent and nature of a lienor’s claim to facilitate investigation as to its merits. Such a statement as the above would be misleading. The lienor is required to verify the statement.

In all essential particulars it must be true.” (Wagner v. Hansen, supra.) The judgment and order appealed from are reversed, and the cause remanded for a new trial. McFarland, J., Temple, J., Garoutte, J., and Henshaw, J., concurred.