All building a considerable part of the floors and walls thereof. The Waterhouse-Price Company 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. 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. 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, and no evidence of a different condition is presented by the record, we must sustain the finding that Guilfoy was a subcontractor. 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 furnishing 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. [4] The appellants further contend that certain other claimants, namely, Faneuf & Heath, Wessendorf & Staffler, Bright Bros., and the Daniels Santa Cruz Transfer Company, were erroneously ranked as materialmen 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. (171 Cal. 526) ROYSTONE CO. v. DARLING et al. (Supreme Court of California. Dec. 15, 1915. 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 materials on the work, and shall also be made to inure to the benefit of all laborers or materialmen 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 the provision of the mechanic's lien act requirspeedy enforcement of such liens. Held, that ing 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 exshould provide a reasonable security for the cess of the contract price for the work, that he constitutional lien given for labor and materials furnished by his contractor, a requirement with For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 2. BONDS [Ed. Note.-For other cases, see Bonds, Cent. 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. 88 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 respondent 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. 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 the penalty of the bond at not less than onehalf the amount of the contract price, subsequently 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. 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 order of consolidation. On June 19, 1912, the defendant Thomas Darling, being the owner of a lot in Santa 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. Five of these installments of $1,659 each were payable at intervals during the construction of the building, the sixth, of the same amount, was to be paid 5. APPEAL AND ERROR 907-PRESUMPTIONS at completion thereof, and the seventh, $3,320, FAVORING COURT BELOW. [Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. § 410; Dec. Dig. 227.] In a suit to foreclose mechanics' liens, was made payable 35 days after the filing of where the propriety of an allowance for extras the notice of completion in the recorder's ofto 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 Sureing of the court below must be sustained on pre- ty Company, executed and delivered to Dar sumption. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 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. ling 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. §§ 1141-1151, 1157, 1158, 1160; Dec. Dig. 181.] "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 Art. 20, efficient enforcement of such liens." § 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 Journal, 589, a case not officially reported. The court in that case considered the power of the Legislature to disregard the contract of the owner with the contractor and give the laborer or materialman a lien for an amount in excess of the money due thereon from the owner to the contractor. In effect, 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 of this sum and for no greater amount. Seven of these claimants were declared to have no right to further relief except against the contractor. The court held that the other 15 claimants were each entitled to a judgment against the American Surety Company upon the bond aforesaid for the excess of their it declared that section 15, article 20, of the respective claims over their respective shares of the fund due to the contractor aforesaid. Judgment was given in accordance with these conclusions. Constitution was not intended to impair the right to contract respecting property guaranteed by section 1, article 1, thereof, and 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 logg 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 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 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 one154 P.-2 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. This law, with some amendments not material to our discussion, remained in force until the enactment of the revision of 1911, aforesaid. time to time, but, upon the whole, conditions were not improved. The act of 1911 was obviously designed for the purpose of removing, as far as possible, the objections to the former law. time or the manner of payment of the contract price or require its payment in installments. All these things are left to the will of the owner and the contractor as they may agree. They do not require that one-fourth of the contract price, or any part thereof, shall be made payable after completion. The parties are at liberty to contract for payment in advance, or in specific property. Such contracts are not declared void by the present law. Section 1183 allows the contract to be filed before the work is begun under it, and provides that there may be filed with it a bond executed by the contractor with good sureties in an amount at least one-half of the contract price, conditioned for the payment in full of all claims on account of labor performed for, or materials furnished to, the contractor in the work, and giving to such persons a right of action on said bond 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. 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 Cal. 495, 64 Pac. 850; Snell v. Bradbury, 139 Cal. 382, 73 Pac. 150; Kellogg v. Howes, supra; Greig v. Riordan, 99 Cal. 319, 33 Pac. 913; Hampton v. Christensen, 148 Cal. 736, 84 Pac. 200; Hoffman-Marks Co. v. Spires, 154 Cal. 116, 97 Pac. 152; Butler v. Ng Chung, 160 Cal. 438, 117 Pac. 512, Ann. Cas. 1913A, 940; Marshall v. Vallejo Bank, 163 Cal. 474, 126 Pac. 146; Ganahl Co. v. Weinsveig, 168 Cal. 669, 143 Pac. 1025; Clark v. Beyrle, 160 Cal. 314, 116 Pac. 739. In addition to these express declarations there are many cases in which the rights of the parties were adjudicated upon the assumption that this proposition constituted the law of the state. Each one of the large number of decisions regarding the priorities of liens in the unpaid portion of the contract price, each decision respecting the right to reach payments 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 lien upon the property for the value of the labor done and materials furnished, proceeds as follows: "The liens in this chapter provided for shall be direct liens, and shall not in the case of any claimants, other than the contractor be limited, as to amount, by any contract price agreed upon between the contractor and the owner except as hereinafter provided." The court below found that the bond was given in pursuance of section 1183 aforesaid. It is not claimed by the respondents that it is good as a common law bond, or that there was any consideration for its execution other than the belief that it was required by said section. The contention of the appellant is that the entire scheme of the provision is inIt then provides that such liens shall not valid because it invades the right of conextend to any labor or materials not em- tract preserved by section 1, article 1, of the braced within the original contract, or mod- Constitution, and that, even if its provisions ification thereof, if the claimant has had ac- are otherwise valid, the requirement of a tual notice thereof before the performance bond is beyond the legislative power and of labor or furnishing of material. It fur- void, and that, for these reasons, the bond is ther provides, with respect to such notice, without any consideration, and is unenforcethat the filing of the contract, or modifica-able. tion thereof, in the office of the county recorder before the commencement of the work, shall be equivalent to actual notice thereof to lien claimants. Then follows the important provision of the section in these words: If the premises are correct the conclusion that the bond creates no obligation would follow. The principle that a bond given solely to comply with a statute, which is itself void, or which does not require the bond as supposed, is without binding force "In case said original contract shall, before is settled by the cases of Powers v. Chabot, the work is commenced, be so filed, together 93 Cal. 270, 28 Pac. 1070, Coburn v. Townwith a bond of the contractor with good and send, 103 Cal. 235, 37 Pac. 202, Reay v. Butsufficient sureties in an amount not less than * tion for the bond, and that it was binding upon the surety. The validity of the act as a whole and the provision requiring such bond in particular are, therefore, questions necessary to the determination of the case. fifty (50) per cent of the contract price nam-ler, 118 Cal. 115, 50 Pac. 375, and similar ed in said contract, which bond shall in addi- cases, and, on the other hand, if the statute tion to any conditions for the performance of the is valid in this respect it would necessarily contract, be also conditioned for the payment follow that there was a sufficient considerain full of the claims of all persons performing labor upon or furnishing materials to be used in such work, and shall also by its terms be made to inure to the benefit of any and all persons who perform labor upon or furnish materials to be used in the work described in said contract so as to give such persons a right of action to recover upon said bond in any suit to foreclose the liens provided for in this chapter or in a separate suit brought on said bond, then the court must, where it would be equitable so to do, restrict the recovery under such liens to an aggregate amount equal to the amount found to be due from the owner to the contractor, and render judgment against the contractor and his sureties on said bond for any deficiency or difference there may remain between said amount so found to be due to the contractor and the whole amount found to be due to claimants for such labor or materials or both. No change or alteration of the work or modification of any such contract between the owner and his contractor shall release or exonerate any surety or sureties upon any bond given under this section. It is the intent and purpose of this section to limit the owner's liability, in all cases, to the measure of the contract price where he shall have filed or caused to be filed in good faith with his original contract a valid bond with good and sufficient sureties in the amount and upon the conditions as herein provided. It shall be lawful for the owner to protect himself against any failure of the contractor to perform his contract and make full payment for all work done and materials furnished thereunder by exacting such bond or other security as he may deem satisfactory." We have shown that when this act was passed it was the established doctrine of this state that the Legislature cannot create mechanic's liens against real property in excess of the contract price, where there is a valid contract, but that it is within the legislative power, in order to protect and enforce the liens provided for in the Constitution, and so far as for that purpose may be necessary, to make reasonable regulations of the mode of contracting, and even of the terms of such contracts, and to declare that contracts shall be void if they do not conform to such regulations. This court has never in any case departed from this doctrine. The case of Laidlaw v. Marye, 133 Cal. 170, 65 Pac. 391, and similar cases holding that, although a contract not in conformity with the statutory regulations is void, and therefore does not limit the lien claimant to the contract price, that it is binding in controversies between the contractor and owner to fix the amount of the contractor's recovery in assumpsit for the value of the work he has done, are not in conflict with this doctrine, but in recognition of it. Merced L. Co. v. "The provisions of this act shall be liberally Bruschi, 152 Cal. 372, 92 Pac. 844, and construed with a view to effect its purpose. Burnett v. Glas, 154 Cal. 249, 97 Pac. 423, They are not intended as a re-enactment of the had to do with invalid contracts. They do provisions of former statutes, with the policy not impugn the doctrine stated; they assert heretofore impressed upon the same by the courts of this state, but are intended to reverse and enforce it. Nor is there any suggestion that policy to the extent of making the liens contrary thereto in the recent case of Martin provided for, direct and independent of any v. Becker, 169 Cal. 301, 146 Pac. 665. account of indebtedness between the owner and contractor, thereby making the policy of this state conform to that of Nevada and the other Pacific coast states." Section 14 of the revising act is as follows: The portions of the act of 1911 above quoted clearly show that the Legislature did not intend thereby to depart from this doctrine, |