GOSS v. STRELITZ et al., 54 Cal. 640

Department No. 1, McKinstry, P. J.:

Section 1187 of the Code of Civil Procedure—a

section which forms part of the

chapter which treats of “ Liens of Mechanics and others upon Real Property ”—reads: “ Every original contractor, within sixty days after the completion of his contract, and every person, save the original contractor, claiming the benefit of this chapter, must, within thirty days after the completion of any building, improvement, or structure, or after the completion of the alteration or repair thereof, or the performance of any labor in a mining claim, file for record with the County Recorder of the county in which such property, or some part thereof, is situated, a claim containing a statement of his demand, after deducting all just credits and offsets, with the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed or to whom he furnished the materials, with a statement of the terms, time given, and conditions of his contract, and also a description of the property to be charged with the lien, sufficient for identification,- which claim must be verified by oath of himself or of some other person.” Within thirty days after the completion of the building for which the material was furnished, plaintiff, a material-man, filed his claim of lien, the portions whereof necessary to be considered arc as follows: “ Such interest as Jacob Strelitz, the owner of said building, had therein on the 2)th day of February, 1877, when said materials were commenced by me to be furnished for said building.

That Jacob Weixel is the person by whom I was employed to furnish the said material, and at whose instance and request I did furnish the same; he, the said Weixel, being the contractor of said building. That the following is a true statement of my demand, for which I claim said lien, namely—materials, to wit: Bricks to the amount and of the value of $2,125 in United States gold coin, which said bricks were furnished by me to be used, and were in fact used, in the construction of the said building.

That neither the said Jacob Weixel nor the said Jacob Strelitz, nor any one for them, or either of them, have paid me any part of said sum of $2,125, except $1,429.25 thereof, and that the sum of $695.75 in United States gold coin is now justly due to me from said Jacob Weixel and Jacob Strelitz for said materials so furnished and used as aforesaid,-after deducting all just credits and offsets.

That the said bricks were commenced by me to be furnished for the construction of said building on the 20th of February, 1877, and were continued so to be furnished up to and including the 14th day of April, 1877, and that thirty days have not elapsed since the completion of said building.

That according to the conditions of sale, the said materials were to be paid for in United States gold coin, and within thirty days after the delivery thereof.” Recorded liens bind a building only ninety days, unless in the meantime suits shall be brought to foreclose them; the statute provides for the enforcement of the liens of the sub-contractors and material-men against the particular property of the owner of the building and surrounding lands, and attempts to create no privity by which the latter shall become personally indebted to the former; it is the liens which are to be marshaled, and their relative rank declared; the scheme as a whole, as well as its details, indicates the purpose of the law-makers that the rights of sub-contractors and material-men should be ascertained by reference to the liens as filed, or should rest upon proof of contracts between them and the original contractor such as accord with the terms and conditions set forth in the claims of lien.

The number or quantity of brick supplied by plaintiff is not mentioned in his claim, and there is nothing from which either defendant or other claimants could be informed of the actual demand for which the lien is claimed, except the alleged value and the dates between which the brick are said to have been furnished. For aught that appears from the findings of the Court below, the brick for which plaintiff recovered may all, or all but the smallest portion of them, have been furnished antecedent to the date when the delivery of brick was commenced, according to the statement in plaintiff’s claim of lien.

It affirmatively appears that some of the brick were furnished prior to that date; the Court finding that “the statement in the lien (as to dates of delivery) was made by mistake of plaintiff, and is erroneous.” This action was not brought to obtain a correction of plaintiff’s lien. But, if it were, a claim of lien is not an instrument in the nature of a written contract, to be reformed by a Court of Equity in appropriate cases.

It is rather a prerequisite to the maintenance of a proceeding which gives a plaintiff an extraordinary remedy, to secure the benefit of which he must comply, with the terms on which the statute extends to him the statutory relief. The findings do not show but that plaintiff has been more than paid for the brick furnished between the dates mentioned in the claim of lien, and for this reason alone the judgment should be reversed. Judgment and order reversed, and cause remanded. Thornton, J., concurred.