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therefor in the breakfast room and on the asserted against property under the mechansouth and west lower porches. The material ics' lien law into four classes, to wit, laboramounted to $340 and the labor to $300.

ers, materialmen, subcontractors, and original contractors. The meaning of the term "subcontractors," as there used, must be determined by reference to this classification and to the subject to which it relates. The "original contractor" is the person who agrees with the owner to construct a building on his property. Those who perform labor in the construction of the building come within the first class, as "laborers." Persons who merely furnish material to the contractors to be used and which are used in the construction of the building come within the second class, as "materialmen." The term

The question whether one who claims a lien upon a building is a contractor or materialman has been several times considered by the court. A brief statement of the cases in which the decisions have been rendered will assist in elucidating the principles to be applied. In Hinckley v. Field, etc., Co., 91 Cal. 139, 27 Pac. 594, it was held that one who constructs, before delivery, "a steam plant consisting of boilers, engine, heater, feed pipe," etc., for a cracker factory, delivers them and puts them in place in the factory building, is a materialman, and not a contractor. It was said that the work of "subcontractor" embraces all persons who putting these materials in place "was only the completion of their contract to deliver such finished machinery." In Roebling Co. v. Humboldt Co., 112 Cal. 290, 44 Pac. 568,

the same rule was made concerning a contract to make and set up ready for use in a building an electrical plant "consisting of dynamos, converters, switchboard, lamps, etc., with the necessary wiring and connec

agree with the original contractor to furnish the material and construct for him on the the original contractor has agreed to erect premises some part of the structure which for the owner. We think something more than a mere comparison of the cost of the labor of attaching material to the building with the total price of the work and materi

als is necessary in many cases to a determination of the question whether a claimant is a subcontractor or a materialman. Generally speaking, it would be held that one who, under an agreement with the contractor, enters upon the premises and there, with material furnished by himself, erects a definite part of the structure composing the building, is a subcontractor within the meaning of this section, regardless of the comparative cost of labor and material. The cases above cited which hold the claimant to be a materialman go upon the theory that the claimant agreed with the owner or the contractor to construct, outside of the building, or away from the

tions," although in order to set them up it was necessary to put in the building a foundation for the dynamos and to install the wires and lamps. In Bennett v. Davis, 113 Cal. 337, 45 Pac. 684, 54 Am. St. Rep. 354, the same rule was followed with respect to a contract to furnish mantels, tiles, and grates and set them in a building under construction. Each tile pertaining to the mantels had to be set in separately and some bricklaying around the mantels was necessary as a part of the setting thereof. In Bryson v. McCone, 121 Cal. 153, 53 Pac. 637, the court held that a person contracting to build ice tanks, including steel molds, pipes, pumps, and connections, and to set them up in an ice fac-premises, some completed article, machinery, tory, was a materialman, and not an original contractor. In Smith v. Bradbury, 148 Cal. 41, 82 Pac. 367, 113 Am. St. Rep. 189, it was held that one who contracted to do the plastering in a building at a stated price yer yard was a subcontractor and not a materialman. So in La Grill v. Mallard, 90 Cal. 373, 27 Pac. 294, one who contracted to paper and decorate a number of rooms in a dwelling house, where the actual work was done by employés, was held to be an original contractor. The only rule of general application announced in any of the above-mentioned decisions was stated in Bennett v. Davis, supra, 113 Cal. 339, 45 Pac. 685, 54 Am. St. Rep. 354, as follows:

"The main consideration after all is whether the labor bestowed upon the article (in setting) was simple and trifling in comparison to the price."

Literally, a "subcontractor" is one who agrees with another to perform a part or all of the obligation which the second party owes by contract to a third party. With respect to the mechanic's lien law in question, however, the word has a much narrower meaning. Section 1194 divides the liens which can be

or apparatus to be thereafter placed in or attached to the building by the person who furnished it. The contention was that the work of attaching it to the building constituted a part of the construction of the building itself, and therefore made the claimant either an original contractor with the owner or a subcontractor with the contractor. The substance of the decisions is that the work of attaching and placing the thing in the building was merely a part of the delivery, and that the essence of the agreement was to furnish a finished article as material to be placed in the building. But in the other cases it was clear that the work of the claimant was that of constructing a part of the building itself with his own materials, under an agreement with the original contractor, and he was held to be a subcontractor.

Under the decision in Smith v. Bradbury, supra, there can be no doubt that the status of Floodberg & McCaffery, who did the lathing and plastering and furnished the material therefor, was that of a subcontractor. The work of Montague & Co. consisted of furnishing the material and constructing in the

and the Daniels Santa Cruz Transfer Com-
pany, were erroneously ranked as material-
men or laborers when they should have been
classed as subcontractors. Their claims were
small, amounting in all to $181.79. Each of
these parties filed a claim of lien stating that
they, respectively, had performed labor on
the building. The claim of Faneuf & Heath
states that they performed certain labor in
the construction of the house and also that
they furnished certain materials which were
used therein. There is nothing in the record
to show the character of the work done by
either of these claimants, or of the materials
they furnished. The finding is sufficiently
sustained by the respective claims of lien,
and, as there is no evidence to the contrary
in the record, the findings must be upheld.
The judgment and order are affirmed.
We concur: SLOSS, J.; LAWLOR, J.

building a considerable part of the floors and | certain other claimants, namely, Faneuf & walls thereof. The Waterhouse-Price Com- Heath, Wessendorf & Staffler, Bright Bros., pany was to furnish the necessary tile and erect a part of the walls of the bathrooms. Clark & Sons, a corporation, was to furnish the material and put on the building a mission tile roof. Ford & Malott were to furnish and lay the flooring in certain rooms. All these constituted substantial and important parts of the building and of the work of constructing it. These parties were, in our opinion, subcontractors, under the principles we have just stated. It is somewhat difficult to determine, from the meager record on the subject, what part of the building was constructed by the claimant Guilfoy. Enough appears to show that he was to furnish the materials and erect in the building the tin work, galvanized iron, and copper work required by the plans and specifications. The plans and specifications are not set forth in the record. It is at least not improbable that the metal work of this character constituted a substantial part of the structure. Guilfoy would be a subcontractor within the rules above stated. As all intendments are in favor of the decision of the court below, and no evidence of a different condition is presented by the record, we must sustain the finding that Guilfoy was a subcontractor.

If so,

ROYSTONE CO. v. DARLING et al. (L. A. 4072.)

(Supreme Court of California. Dec. 15, 1915. Rehearing Denied Jan. 13, 1916.)

1. CONSTITUTIONAL LAW 89-MECHANICS' LIENS 3-CONTRACTOR'S BOND-STATUTE

-CONSTITUTIONALITY.

Act May 1, 1911 (St. 1911, p. 1313), amending Code Civ. Proc. § 1183, provides that materials shall have a lien for the value of the persons working upon a building or furnishing labor and materials, and that in case the original contract shall be filed in the office of the county recorder, together with the bond of the contractor in an amount not less than 50 per cent. of the contract price, which bond shall be conditioned for the payment of the claims of all persons performing labor or furnishing mateinure to the benefit of all laborers or materialrials on the work, and shall also be made to men on the work described in the contract, to give them a right of action to recover upon liens or in a separate suit brought on the bond, the bond in any suit to foreclose the mechanics' then the court, where it would be equitable to do so, may restrict the recovery under such liens to an aggregate amount equal to that found to be due from the owner to the contractor, and render judgment against the contractor and sureties on the bond for any deficiency. Const. art. 1, § 1, guaranties the right of contract. Article 20, § 15, provides that mechanics, materialmen, artisans, and laborers of every class shall have a lien upon the property upon which they have bestowed labor or furnished materials, and that the Legislature shall provide for the

In Bennett v. Davis, supra, the claimant, who contracted to furnish mantels for the building with the tiles and grates connected therewith and to set them all in the building, was held to be a materialman. A part of the work of Montague & Co. consisted of the building of four fireplaces in the house, using brick and tile. This work is in some respects similar to that which was held to be the furnishing of materials in Bennett v. Davis. But here we have no plans or specifications or other description of the work, and we cannot say that the fireplaces did not constitute a very substantial part of the structure of the building in question. In Bennett v. Davis the mantels, which are usually finished outside as a complete structure and thereafter taken to and set in the building by the person who makes them, were the principal subject of the agreement and the setting was a mere incident and of very slight cost compared with the price of the mantels. It was in this case that the court said that the conparison of the labor of setting with the price was the main consideration. The work done by Montague & Co. constituted nearly half of the sum they were to receive for furnish-speedy enforcement of such liens. Held, that ing the material and erecting these porch floors, fireplaces and other things in the building. The cost of the different parts of their job is not stated. There is therefore no means of making comparison of the cost of the labor with the total cost of the fireplaces, and we cannot interfere with the finding that they were subcontractors.

the provision of the mechanic's lien act requiring the contractor's bond is not unconstitutional as invading the right of contract, since it allows the owner of property to contract freely for its improvement and upon such terms as he may deem for his best interest, merely exacting from him as a condition of exemption from liability to subcontractors and materialmen in excess of the contract price for the work, that he should provide a reasonable security for the constitutional lien given for labor and materials [4] The appellants further contend that furnished by his contractor, a requirement with

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2. BONDS *mm 35 VALIDITY STATUTORY
BONDS.
A bond given solely to comply with a stat-
ute which is itself void, or which does not re-
quire the bond as supposed, is without binding
force.

[Ed. Note.-For other cases, see Bonds, Cent.
Dig. §§ 40, 40%; Dec. Dig. 35.]
3. STATUTES 85-CLASS
CONTRACTOR'S BOND.

LEGISLATION

Act May 1, 1911 (St. 1911, p. 1313), amending Code Civ. Proc. § 1183, to require a contractor's bond securing materialmen and laborers as a condition to the owner's exemption from liability thereto in an amount in excess of the contract price, is not unconstitutional as class legislation, since a law is general and constitutional when it applies equally to all persons embraced in a class founded upon some natural or intrinsic or constitutional distinction which has some reasonable relation to the legislation respecting the class, which is the case, as to persons furnishing labor or materials for the construction of buildings, under the constitution conferring their liens thereon.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 94, 95; Dec. Dig. 85.]

Company of New York and others. From a judgment against it, the defendant American Surety Company appeals. Affirmed.

Bicksler & Smith, of Los Angeles, for appellant. Irwin, White & Rosecrans and Randall & Bartlett, all of Los Angeles, for respondents Darling. Ernest E. Nichols, of Los Angeles, for respondent Joseph Musto SonsKeenan Co. R. L. Horton, of Los Angeles, for respondent Hammond Lumber Co. Gray, Barker & Bowen, of Los Angeles, for respond

ent Schultz Lumber Co. Shaw & Stewart, of Los Angeles, for respondent Stead. Willis O. Tyler, of Los Angeles, for respondent James. Schweitzer & Hutton, of Los Angeles, for respondent Western Commercial Co. Alfred Wright, of Los Angeles, for respondent Eager Hardware & Paint Co. C. W. Pendleton, Jr., of Los Angeles, for respondents H. W. JohnsManville Co. and J. C. Crawford. Jones & Weller, of Los Angeles, for respondent Patten & Davies Lumber Co. Arthur Wright, of Los Angeles, for respondent Hughes Mfg. & Lumber Co. Waterman & Green, of Los Angeles, for respondent Neely.

SHAW, J. This is an appeal taken from 4. MECHANICS' LIENS 227-CONTRACTOR's the judgment within 60 days after its entry, BOND CONSTRUCTION RECOVERY IN EX

CESS OF PENALTY-STATUTE.

the American Surety Company being the sole appellant. The judgment was rendered in a consolidated action to foreclose mechanics' liens. Nineteen separate complaints embrac ing 22 claims of lien were included in the or

Act May 1, 1911 (St. 1911, p. 1313), amends Code Civ. Proc. § 1183, to require that a contractor shall file a bond securing materialmen and laborers as a condition to the owner's exemption from liability thereto in an amount in excess of the contract price, and fixes der of consolidation. the penalty of the bond at not less than one- On June 19, 1912, the defendant Thomas half the amount of the contract price, subse-Darling, being the owner of a lot in Santa quently providing that after applying to the payment of liens the sum due from the owner to the contractor, lien claimants may, in suit on the bond recover the unpaid balance of their claims. Held, that such a bond could not be construed, because of the last provision of the statute, as authorizing a recovery in excess of its penalty.

[Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. § 410; Dec. Dig. 227.] 5. APPEAL AND ERROR 907-PRESUMPTIONS FAVORING COURT BELOW. In a suit to foreclose mechanics' liens, where the propriety of an allowance for extras to a materialman depended upon the specifications, which were not incorporated in the bill of exceptions or elsewhere in the record, the finding of the court below must be sustained on pre

sumption.

Five of these install

Monica, Los Angeles county, entered into a contract with the defendant J. M. Thomas for the erection of an apartment house on said lot. The contract price was $13,279, payable in installments. ments of $1,659 each were payable at intervals during the construction of the building, the sixth, of the same amount, was to be paid at completion thereof, and the seventh, $3,320, was made payable 35 days after the filing of the notice of completion in the recorder's office. The remaining $5 are not accounted for. On the 20th day of June, the contractor, Thomas, and the appellant, American Surety Company, executed and delivered to Darling a bond in the sum of $6,640, being 50 cents in excess of one-half of said contract price. This bond conformed in every particular to the requirements of section 1183 of the Code of Civil Procedure, as amended in 1911. The contract and the bond aforesaid were duly filed and recorded in the office of the recorder of said county on June 21, 1912, the day after the execution of the bond. In pursuance of the contract, Thomas immediately began the erection of the building and In Bank. Appeal from Superior Court, Los completed it on December 14, 1912. Extra Angeles County; Louis W. Myers, Judge. work of the value of $183.50 was ordered by Action by the Roystone Company against Darling and performed by Thomas. On DeThomas Darling and the American Surety cember 14, 1912, Darling filed in the record

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2899, 2911-2916, 3673, 3674, 3676, 3678; Dec. Dig. 907.]

6. APPEAL AND ERROR 181-RESERVATION OF GROUNDS OF REVIEW-NECESSITY OF OBJECTION BELOW.

An objection made in appellant's brief, but not made on trial or in the court below, will not be considered on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1141-1151, 1157, 1158, 1160; Dec. Dig. 181.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"Mechanics, materialmen, artisans, and laborers of every class shall have a lien upon the property upon which they have bestowed labor or furnished material, for the value of such labor done and material furnished; and the Legislature shall provide, by law, for the speedy and efficient enforcement of such liens." Art. 20, § 15.

er's office a notice of completion as provided to the contract price. In this condition of in section 1187 of the Code of Civil Proce- the law the Constitution of 1879 was adopted. dure. Prior to November 1, 1912, Darling It provides as follows: paid Thomas five installments, as provided in the contract, amounting to $8,295. The remainder of the contract price, $4,984, together with the value of the extra work $183.50, a total of $5,167.50 remains unpaid. The several claims of lien found to be valid by the court amounted to something over $10,000, being more than $6,000 in excess of the balance due from the owner to the contractor as aforesaid.

In 1880 section 1183 was again amended by inserting a direct declaration that "the lien shall not be affected by the fact that no money is due, or to become due, on any contract made by the owner with any other party." This amendment of 1880 first came before the Supreme Court for consideration in Latson v. Nelson, 11 Pacific Coast Law

The court below was of the opinion that said sum of $5,167.50 due from Darling to Thomas on the contract was applicable to these liens, and that liens should be declared and enforced on defendant's property in favor of each claimant for his pro rata share Journal, 589, a case not officially reported. of this sum and for no greater amount. Sev- The court in that case considered the powen of these claimants were declared to have er of the Legislature to disregard the conno right to further relief except against the tract of the owner with the contractor and contractor. The court held that the other 15 give the laborer or materialman a lien for an claimants were each entitled to a judgment amount in excess of the money due thereon against the American Surety Company upon from the owner to the contractor. In effect, the bond aforesaid for the excess of their it declared that section 15, article 20, of the respective claims over their respective shares Constitution was not intended to impair the of the fund due to the contractor aforesaid. right to contract respecting property guarJudgment was given in accordance with these anteed by section 1, article 1, thereof, and conclusions. that the provisions of the Code purporting As will be seen from the foregoing state to give a lien upon property in favor of third ment the contract between Darling and Thom- persons, in disregard of and exceeding the as was made in 1912. The case is therefore obligations of the owner concerning that governed by the provisions of the mechanic's property, was an invalid restriction of the lien law, as revised by the act of May 1, 1911 liberty of contract. Although it is not very (Stats. 1911, p. 1313). This revision made clearly stated, the theory of that decision some radical changes in the law, and it pre-is, and it has always been understood to be, sents new questions for decision. It will that section 1 of article 1, declaring that all aid in the understanding of the purpose and meaning of this act if we call to mind, as briefly as may be, the history of the mechanic's lien laws in this state and the state of the law on the subject at the time the amendments in question were enacted.

of the police power. See on this point Kellogg v. Howes, 81 Cal. 177, 22 Pac. 509, 6 L. R. A. 588; Stimson Mill Co. v. Braun, 136 Cal. 125, 68 Pac. 481, 57 L. R. A. 726, 89 Am. St. Rep. 116. Latson v. Nelson was

men possess "certain inalienable rights," among them the right of "acquiring, possessing, and protecting property," is a guarantee which includes the right to contract concerning the use, enjoyment, and disposition of property, and which cannot be taken away Prior to the adoption of the Constitution or restricted by the Legislature except by of 1879 the lien of mechanics and material- reasonable regulations made in the exercise men for work done and materials furnished in the erection of buildings was entirely a creature of the Legislature. The former Constitution contained no declaration on the subject. Numerous decisions of the Supreme Court had declared that all such liens were approved and followed in McCants v. Bush, limited by the contract between the owner 70 Cal. 126, 11 Pac. 601; Wiggins v. Bridge, and the contractor, and could not, in the ag- 70 Cal. 438, 11 Pac. 754, both decided in 1886, gregate, exceed the contract price. The doc- and in Walsh v. McMenomy, 74 Cal. 359, 16 trine that the right of contract could not be Pac. 17. in 1887. In the meantime the Legisinvaded by legislative acts purporting to give lature of 1885 (St. 1885, p. 143), apparently liens beyond the price fixed in the contract recognizing and conceding the force of the between the owner and the contractor, or re- decision in Latson v. Nelson, undertook to gardless of the fact that the price had been secure and enforce the constitutional lien by wholly or partially paid, was so thoroughly other means, that is, by regulating the mode established that litigation involving it had of making and executing contracts, rather virtually ended. Section 1183 of the Code, than by disregarding the right of contract. as amended in 1873, declared that every per- It amended sections 1183 and 1184 of the son performing labor or furnishing materials Code by providing that in all building conto be used in the construction of any build-tracts the contract price should be payable ing should have a lien upon the same for such in installments at specified times after the work or material. It did not limit the liens beginning of the work, that at least one

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fourth thereof should be made payable not|ognized the doctrine by subsequent amendless than 35 days after the completion of the ments following out the theory of the amendwork contracted for, that all such contracts ment of 1885. exceeding $1,000 should be in writing, sub- The scheme of regulation embodied in the scribed by the parties thereto, and should be amendments of 1885 and continued until filed in the office of the county recorder be- 1911, did not work well in practical operafore the work was begun thereunder, that if tion. Disputes frequently arose concerning these regulations were followed, liens upon the terms of contracts, the time of maturithe property for the erection of the struc- ty of installments, the making of payments, ture should be confined to the unpaid por- the time of beginning the work, with respect tion of the contract price, but that all con- to the filing of the contract for record, and tracts which did not conform thereto, or many other details which, under the somewhich were not filed as provided, should be what elaborate plan of the statute, would void, that in such case the contractor should affect the validity of the contract, or the be deemed the agent of the owner, and the right to a lien to the unpaid part of the price property should be subject to a lien in favor when the contract was valid. Our reports of any person performing labor or furnishing show many decisions on these questions. material to the contractor upon the build- Amendments to the statute were made from ing for the value of such labor or material. time to time, but, upon the whole, conditions This law, with some amendments not ma- were not improved. The act of 1911 was obterial to our discussion, remained in force viously designed for the purpose of removuntil the enactment of the revision of 1911, ing, as far as possible, the objections to the aforesaid. former law.

In the meantime the Supreme Court has The plan differs in important particulars followed the rule established by the cases from the previous statute. It amends the last cited and has uniformly declared, with entire chapter with the exception of sections respect to such liens, that if there is a valid 1186, 1188, 1189, 1191, 1191a, 1196, 1198, 1199, contract, the contract price measures the and 1201. The provisions of these sections limit of the amount of liens which can be harmonize with either scheme. Sections acquired against the property by laborers 1183a, 1200, and 1203a are repealed. The and materialmen. The following cases de-amended sections do not prescribe the form clare the doctrine directly: Stimson Mill Co. of building contracts, nor do they fix the v. Braun, supra; McDonald v. Hayes, 132 time or the manner of payment of the conCal. 495, 64 Pac. 850; Snell v. Bradbury, tract price or require its payment in install139 Cal. 382, 73 Pac. 150; Kellogg v. Howes, ments. All these things are left to the will supra; Greig v. Riordan, 99 Cal. 319, 33 Pac. of the owner and the contractor as they may 913; Hampton v. Christensen, 148 Cal. 736, agree. They do not require that one-fourth 84 Pac. 200; Hoffman-Marks Co. v. Spires, of the contract price, or any part thereof, 154 Cal. 116, 97 Pac. 152; Butler v. Ng shall be made payable after completion. The Chung, 160 Cal. 438, 117 Pac. 512, Ann. Cas. parties are at liberty to contract for payment 1913A, 940; Marshall v. Vallejo Bank, 163 in advance, or in specific property. Such Cal. 474, 126 Pac. 146; Ganahl Co. v. Weins- contracts are not declared void by the present veig, 168 Cal. 669, 143 Pac. 1025; Clark v. law. Section 1183 allows the contract to Beyrle, 160 Cal. 314, 116 Pac. 739. In addi- be filed before the work is begun under it, tion to these express declarations there are and provides that there may be filed with it many cases in which the rights of the par- a bond executed by the contractor with good ties were adjudicated upon the assumption sureties in an amount at least one-half of that this proposition constituted the law of the contract price, conditioned for the paythe state. Each one of the large number of ment in full of all claims on account of labor decisions regarding the priorities of liens in performed for, or materials furnished to, the unpaid portion of the contract price, each the contractor in the work, and giving to decision respecting the right to reach pay- such persons a right of action on said bond ments made before maturity under such contract, each decision as to the formal requisites of contracts under the amendment of 1885, and each decision as to the apportionment under section 1200, Code of Civil Procedure, upon the failure of the contractor to complete the work, constitutes an af- [1, 2] The first point urged by the appelfirmance of the doctrine that the contract, lant in support of its appeal is that the porlegally made, limits the liability of the own- tion of the statute providing for the execuer to lien claimants. There has been scarce- tion and filing of the bond by the contractor ly a session of this court since the enactment is unconstitutional and void. It is necesof that amendment at which one or more sary here to state more fully the statutory cases have not been presented and decided provisions regarding the same. Section 1183, which, in effect, amounted to a repetition of after declaring that persons who work upon this doctrine. The Legislature has also rec-a building or furnish materials, shall have a

for such claims. Other changes are made, but as they are not material to the decision as to the extent of the lien and the validity of the provision for a contractor's bond, we leave them to be noticed on the discussion of the questions to which they may relate.

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