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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 orig

The question whether one who claims a inal contractors. The meaning of the term lien upon a building is a contractor or mate- "subcontractors," as there used, must be derialman has been several times considered termined by reference to this classification by the court. A brief statement of the cases and to the subject to which it relates. The in which the decisions have been rendered “original contractor" is the person who will assist in elucidating the principles to be agrees with the owner to construct a build. applied. In Hinckley v. Field, etc., Co., 91 | ing on his property. Those who perform Cal. 139, 27 Pac. 594, it was held that one labor in the construction of the building come who constructs, before delivery, "a steam within the first class, as "laborers." Persons plant consisting of boilers, engine, heater, who merely furnish material to the contracfeed pipe," etc., for a cracker factory, de- tors to be used and which are used in the livers them and puts them in place in the

construction of the building come within the factory building, is a materialman, and not co

second class, as "materialmen." The term a contractor. It was said that the work of

"subcontractor" embraces all persons who putting these materials in place "was only

agree with the original contractor to furnish the completion of their contract to deliver

the material and construct for him on the such finished machinery." In Roebling Co.

premises some part of the structure which v. Humboldt Co., 112 Cal. 290, 44 Pac. 568,

the original contractor has agreed to erect the same rule was made concerning a con

for the owner. We think something more tract to make and set up ready for use in a

than a mere comparison of the cost of the building an electrical plant "consisting of dynamos, converters, switchboard, lamps,

labor of attaching material to the building etc., with the necessary wiring and connec

with the total price of the work and materi. tions," although in order to set them up it

on it als is necessary in many cases to a determiwas necessary to put in the building a foun.

nation of the question whether a claimant is dation for the dynamos and to install the a subcontractor or a materialman. Generally wires and lamps. In Bennett v. Davis, 113 speaking, it would be held that one who, unCal. 337, 45 Pac. 684, 54 Am. St. Rep. 354, the der an agreement with the contractor, enters same rule was followed with respect to a upon the premises and there, with material contract to furnish mantels, tiles, and grates furnished by himself, erects a definite part and set them in a building under construc- of the structure composing the building, is a tion. Each tile pertaining to the mantels had subcontractor within the meaning of this secto be set in separately and some bricklaying tion, regardless of the comparative cost of around the mantels was necessary as a part labor and material. The cases above cited of the setting thereof. In Bryson v. McCone, which hold the claimant to be a materialman 121 Cal. 153, 53 Pac. 637, the court held that go upon the theory that the claimant agreed a person contracting to build ice tanks, in- with the owner or the contractor to construct, cluding steel molds, pipes, pumps, and con- outside of the building, or away from the nections, and to set them up in an ice fac- premises, some completed article, machinery, tory, was a materialman, and not an original or apparatus to be thereafter placed in or contractor. In Smith v. Bradbury, 148 Cal. attached to the building by the person who 41, 82 Pac. 367, 113. Am. St. Rep. 189, it was furnished it. The contention was that the held that one who contracted to do the plas-work of attaching it to the building constitering in a building at a stated price yer yard tuted a part of the construction of the buildwas a subcontractor and not a materialman. ing itself, and therefore made the claimant So in La Grill v. Mallard, 90 Cal. 373, 27 either an original contractor with the owner Pac. 294, one who contracted to paper and or a subcontractor with the contractor. The decorate a number of rooms in a dwelling substance of the decisions is that the work house, where the actual work was done by of attaching and placing the thing in the employés, was held to be an original con- building was merely a part of the delivery, tractor. The only rule of general application and that the essence of the agreement was to announced in any of the above-mentioned de

furnish a finished article as material to be cisions was stated in Bennett v. Davis, supra,

placed in the building. But in the other 113 Cal. 339, 45 Pac. 685, 54 Am. St. Rep.

cases it was clear that the work of the claim354, as follows:

ant was that of constructing a part of the "The main consideration after all is whether

building itself with his own materials, under the labor bestowed upon the article (in setting) was simple and trifling in comparison to the

an agreement with the original contractor, price."

and he was held to be a subcontractor. Literally, a "subcontractor" is one who Under the decision in Smith v. Bradbury, agrees with another to perform a part or all supra, there can be no doubt that the status of the obligation which the second party owes of Floodberg & McCaffery, who did the lathby contract to a third party. With respect to ing and plastering and furnished the materithe mechanic's lien law in question, however, al therefor, was that of a subcontractor. The the word has a much narrower meaning. work of Montague & Co. consisted of furbuilding 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 and the Daniels Santa Cruz Transfer Comerect a part of the walls of the bathrooms. pany, were erroneously ranked as materialClark & Sons, a corporation, was to furnish men or laborers when they should have been the material and put on the building a mis classed as subcontractors. Their claims were sion tile roof. Ford & Malott were to furnish small, amounting in all to $181.79. Each of and lay the flooring in certain rooms. All these parties filed a claim of lien stating that these constituted substantial and important they, respectively, had performed labor on parts of the building and of the work of con- | the building. The claim of Faneuf & Heath structing it. These parties were, in our opin states that they performed certain labor in ion, subcontractors, under the principles we the construction of the house and also that have just stated. It is somewhat difficult to they furnished certain materials which were determine, from the meager record on the used therein. There is nothing in the record subject, what part of the building was con- to show the character of the work done by structed by the claimant Guilfoy. Enough either of these claimants, or of the materials appears to show that he was to furnish the they furnished. The finding is sufficiently materials and erect in the building the tin sustained by the respective claims of lien, work, galvanized iron, and copper work re- and, as there is no evidence to the contrary quired by the plans and specifications. The in the record, the findings must be upheld. plans and specifications are not set forth in The judgment and order are affirmed. the record. It is at least not improbable that the metal work of this character constituted

We concur: SLOSS, J.; LAWLOR, J. a substantial part of the structure. If so, Guilfoy would be a subcontractor within the rules above stated. As all intendments are in favor of the decision of the court below,

ROYSTONE CO, v. DARLING et al. and no evidence of a different condition is

(L. A. 4072.) presented by the record, we must sustain the (Supreme Court of California. Dec. 15, 1915. finding that Guilfoy was a subcontractor.

Rehearing Denied Jan. 13, 1916.) In Bennett v. Davis, supra, the claimant,

ul. 1. CONSTITUTIONAL LAW 89-MECHANICS' who contracted to furnish mantels for the LIENS 3–CONTRACTOR'S BOND-STATUTE building with the tiles and grates connected -CONSTITUTIONALITY. therewith and to set them all in the building, Act May 1, 1911 (St. 1911, p. 1313), was held to be a materialman. A part of

amending Code Civ. Proc. $ 1183, provides that

persons working upon a building or furnishing the work of Montague & Co. consisted of the

materials shall have a lien for the value of the building of four fireplaces in the house, using labor and materials, and that in case the origbrick and tile. This work is in some respects

and til This worla is in some respects inal contract shall be filed in the office of the similar to that which was held to be the

county recorder, together with the bond of the

contractor in an amount not less than 50 per furnishing of materials in Bennett v. Davis. cent. of the contract price, which bond shall be But here we have no plans or specifications conditioned for the payment of the claims of all or other description of the work, and we can

persons performing labor or furnishing mate

rials on the work, and shall also be made to not say that the fireplaces did not constitute

inure to the benefit of all laborers or materiala very substantial part of the structure of the men on the work described in the contract, to building in question. In Bennett v. Davis give them a right of action to recover upon the mantels, which are usually finished out

the bond in any suit to foreclose the mechanics'

liens or in a separate suit brought on the bond, side as a complete structure and thereafter

then the court, where it would be equitable to taken to and set in the builaing by the per- do so, may restrict the recovery under such liens son who makes them, were the principal sub to an aggregate amount equal to that found to

be due from the owner to the contractor, and ject of the agreement and the setting was a

render judgment against the contractor and mere incident and of very slight cost com sureties on the bond for any deficiency. Const. pared with the price of the mantels. It was art. 1, § 1, guaranties the right of contract. in this case that the court said that the co.n

Articlé 20, § 15, provides that mechanics, mate

rialmen, artisans, and laborers of every class parison of the labor of setting with the price

shall have a lien upon the property upon which was the main consideration. The work done they have bestowed labor or furnished materials, by Montague & Co. constituted nearly half and that the Legislature shall provide for the of the sum they were to receive for furnish

speedy enforcement of such liens. Held, that

the provision of the mechanic's lien act requiring the material and erecting these porch ing the contractor's bond is not unconstitutional floors, fireplaces and other things in the as invading the right of contract, since it albuilding The cost of the different parts of lows the owner of property to contract freely

for its improvement and upon such terms as he their job is not stated. There is therefore no

Te no may deem for his best interest, merely exacting means of making comparison of the cost of from him as a condition of exemption from liathe labor with the total cost of the fireplaces, bility to subcontractors and materialmen in exand we cannot interfere with the finding that

cess of the contract price for the work, that he

should provide a reasonable security for the they were subcontractors.

constitutional lien given for labor and materials [4] The appellants further contend that furnished by his contractor, a requirement within the scope of the constitutional provision con- , Company of New York and others. From a ferring such liens, and of the police power, judgment against it, the defendant American

[Ed. Note. For other cases, see Constitution-I Surety Com al Law, Cent. Dig. 8 157; Dec. Dig.

1: Surety Company appeals. Affirmed.

89; Mechanics' Liens, Cent. Dig. $ 4; Dec. Dig. Bicksler & Smith, of Los Angeles, for apOm3.]

pellant. Irwin, White & Rosecrans and Ran2. BONDS 35 – VALIDITY – STATUTORY | dall & Bartlett, all of Los Angeles, for reBonds. A bond given solely to comply with a stat

spondents Darling. Ernest E. Nichols, of Los ute which is itself void, or which does not re- Angeles, for respondent Joseph Musto Sonsquire the bond as supposed, is without binding Keenan Co. R. L. Horton, of Los Angeles, force.

for respondent Hammond Lumber Co. Gray, [Ed. Note.-For other cases, see Bonds, Cent. Dig. 88 40, 404; Dec. Dig. Om 35.]

Barker & Bowen, of Los Angeles, for respond

ent Schultz Lumber Co. Shaw & Stewart, of 3. STATUTES Cm 85 - CLASS LEGISLATION CONTRACTOR'S BOND.

Los Angeles, for respondent Stead. Willis 0. Act May 1, 1911 (St. 1911, p. 1313), Tyler, of Los Angeles, for respondent James. amending Code Civ. Proc. 8 1183, to require a Schweitzer & Hutton, of Los Angeles, for contractor's bond securing materialinen and

respondent Western Commercial Co. Alfred laborers as a condition to the owner's exemption from liability thereto in an amount in ex

Wright, of Los Angeles, for respondent Eager cess of the contract price, is not unconstitution Hardware & Paint Co. C. W. Pendleton, Jr., al as class legislation, since a law is general and of Los Angeles, for respondents H. W. Johnsconstitutional when it applies equally to all per

Manville Co. and J. O. Crawford. Jones & sons embraced in a class founded upon some natural or intrinsic or constitutional distinction Weller, of Los Angeles, for respondent Patwhich has some reasonable relation to the legis- ten & Davies Lunber Co. Arthur Wright, of lation respecting the class, which is the case, | Los Angeles. for respondent Hughes Mfg. & as to persons furnishing labor or materials for the construction of buildings, under the consti

Lumber Co. Waterman & Green, of Los Antution conferring their liens thereon.

geles, for respondent Neely. [Ed. Note. For other cases, see Statutes, Cent. Dig. 88 94, 95; Dec. Dig. 85.]

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

the American Surety Company being the sole CESS OF PENALTY-STATUTE...

Act May 1, 1911 (St. 1911, p. 1313). / appellant. The judgment was rendered in a amends Code Civ. Proc. $ 1183, to require that consolidated action to foreclose mechanics' a contractor shall file a bond securing materi- | liens. Nineteen separate complaints embracalmen and laborers as a condition to the owner's exemption from liability thereto in ang

ning 22 claims of lien were included in the oramount 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

Monica, Los Angeles county, entered into a the contractor, lien claimants may, in suit on | contract with the defendant J. M. Thomas the bond recover the unpaid balance of their l for the erection of an apartment hous se on claims. Held, that such a bond could not be

said lot. The contract price was $13,279, pay. construed, because of the last provision of the statute, as authorizing a recovery in excess of able in installments. Five of these installits penalty.

ments of $1,659 each were payable at inter[Ed. Note. For other cases, see Mechanics' vals during the construction of the building, Liens, Cent. Dig. $ 410; Dec. Dig. 227.]

the sixth, of the same amount, was to be paid 5. APPEAL AND ERROR Om907-PRESUMPTIONS at completion thereof, and the seventh, $3,320, FAVORING COURT BELOW.

was made payable 35 days after the filing of In a suit to foreclose mechanics' liens, where the propriety of an allowance for extras the notice of com

the notice of completion in the recorder's of. to a materialman depended upon the specifica fice. The remaining $5 are not accounted tions, which were not incorporated in the bill of for. On the 20th day of June, the contractor, exceptions or elsewhere in the record, the find. Thomas and the appellant American ing of the court below must be sustained on presumption.

ty Company, executed and delivered to Dar[Ed. Note. For other cases, see Appeal and ling a bond in the sum of $6,640, being 50 Error, Cent. Dig. 88 2899, 2911-2916, 3673, cents in excess of one-half of said contract 3674, 3676, 3678; Dec, Dig. Om907.]

price. This bond conformed in every partic6. APPEAL AND ERROR 181--RESERVATION ular to the requirements of section 1183 of OF GROUNDS OF REVIEW-NECESSITY OF OB

the Code of Civil Procedure, as amended in JECTION BELOW.

An objection made in appellant's brief, but | 1911. The contract and the bond aforesaid not made on trial or in the court below, will were duly filed and recorded in the office of not be considered on appeal.

the recorder of said county on June 21, 1912, [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1141-1151, 1157, 1158,

the day after the execution of the bond. In 1160; Dec. Dig. Om 181.]

pursuance of the contract, Thomas immedi

ately 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 recorder'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 "Mechanics, materialmen, artisans, and lathe contract, amounting to $8,295. The reborers of every class shall have a lien upon the mainder of the contract price, $4,984, together

property upon which they have bestowed labor

or furnished material, for the value of such lawith the value of the extra work $183.50, a

bor done and material furnished; and the Legistotal of $5,167.50 remains unpaid. The sever- lature shall provide, by law, for the speedy and al claims of lien found to be valid by the efficient enforcement of such liens." Art. 20, court amounted to something over $10,000,

1 8 15. being more than $6,000 in excess of the bal- |

the ball! In 1880 section 1183 was again amended ance due from the owner to the contractor by inserting a direct declaration that "the as aforesaid.

lien shall not be affected by the fact that no The court below was of the opinion that money is due, or to become due, on any consaid sum of $5,167.50 due from Darling to tract made by the owner with any other Thomas on the contract was applicable to party." This amendment of 1880 first came these liens, and that liens should be declared before the Supreme Court for consideration and enforced on defendant's property in fa- | in Latson V. Nelson, 11 Pacific Coast Law yor 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 men possess "certain inalienable rights," meaning of this act if we call to mind, as among them the right of "acquiring, possessbriefly as may be, the history of the mechan- ing, and protecting property," is a guarantee ic's lien laws in this state and the state of the which includes the right to contract conlaw on the subject at the time the amend- cerning the use, enjoyment, and disposition ments in question were enacted.

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 of the police power. See on this point Kelin the erection of buildings was entirely a logg V. Howes, 81 Cal. 177, 22 Pac. 509, 6 creature of the Legislature. The former Con- L. R. A. 588; Stimson Mill Co. v. Braun, stitution contained no declaration on the sub- 136 Cal. 125, 68 Pac. 481, 57 L. R. A. 726, ject. Numerous decisions of the Supreme 89 Am. St. Rep. 116. Latson v. Nelson was 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 onefourth thereof should be made payable not jognized 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 pagthe 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 con- for such claims. Other changes are made, tract, each decision as to the formal requi- but as they are not material to the decision sites of contracts under the amendment of as to the extent of the lien and the validity 1885, and each decision as to the apportion of the provision for a contractor's bond, we ment under section 1200, Code of Civil Pro- leave them to be noticed on the discussion cedure, upon the failure of the contractor of the questions to which they may relate. 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

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