Irwin v. Silva (40 Cal. App. 135, 1919)

HART, J.

The action was brought to foreclose a mechanic’s lien on certain property belonging to the defendant, John Emrick. The land was under lease to defendant, John Silva, who obtained from plaintiff lumber and material which he used in constructing certain buildings for his own use. Defendant Silva defaulted, judgment was in favor of defendant Emrick, and the appeal is by plaintiff, -on the judgment-roll, from said judgment.

It was found by the court: That between the fifth day of June, 1915, and the sixteenth day of November, 1915, plaintiff sold and delivered to defendant Silva lumber and materials which were used by him in the erection of certain buildings ; that said buildings were constructed by defendant Silva with the knowledge of the defendant Emrick; that during the course of construction of said buildings and before they were completed portions of them were occupied by defendant Silva. “That the defendant, John Silva, continued to work intermittently in and about said buildings and improvements up to the fourth day of December, 1915, at which time said buildings were completed. That said buildings were constructed by said John Silva in person and not by a contractor. That on the eighth day of February, 1916, and within ninety days after the last delivery of said lumber and building material and the completion of said buildings,” plaintiff filed a claim complete his contract within a specified or reasonable time.

But there is another and, we think, a well-nigh conclusive reply to the contention that the provision for the filing by the owner of a notice of the completion of the contract applies to the case where the work is not done under contract, and it is this: The provision with respect to the filing of a notice of completion as it read prior to the revision of the lien law by the legislature of 1911, [Stats. 1911, p. 1313], was in the following language: “The owner of any property on which labor has been bestowed or for which materials have been furnished to be used in the construction, alteration, addition to or repair, either in whole or in part, of any work mentioned in section 1183 of this code, must, within ten days after the completion thereof, or within forty days after the cessation from labor upon any unfinished contract, or upon any unfinished building, improvement or structure, or the alteration, addition to or repair thereof, file for record ... a notice setting forth,” etc. (See Stats. 1897, p. 202.) We have seeh no cases which have construed the section as it thus read prior to 1911, but undoubtedly the language quoted could reasonably have been so construed as to have made it applicable to cases where the work was not done by contract as well as those cases where the work was done by contract, and it is most probably true that, when so applying it, it was found to be so unnecessary—so impotent in the achievement of any useful purpose— that the legislature of 1911, having so viewed it, ex industriar changed it so as that it would read as it now exists. At any rate, we can conceive of no stronger reason calling for the amendment than that of avoiding the absurdity of requiring the owner, where l)e has himself done the work, to file a notice of completion when at the same time there exists a provision which affords the laborer and materialman in such a case the right of filing their liens within thirty days after they have ceased to labor or to furnish materials, an event produced by their own acts or conduct and which, therefore, they of necessity have actual knowledge of.

It follows, of course, from the view of section 1187 above given, that only those whose rights would be affected by the filing of the notice of completion may invoke the estoppel provided for in said section when no such notice is filed. If, in other words, the provision as to the notice of completion applies only when there is a contract,.then, obviously, the estoppel is applicable and may be invoked only when there is a contract. There being no contract in this case—that is, the buildings for which the plaintiff furnished materials not having been constructed by or under contract between the owner and a contractor but constructively by the owner himself—the provision of section 1187 as to the filing of notice of completion does not, as to the appellant, apply, and as an essential corollary of that proposition the estoppel provided for in said section does not apply and, therefore, cannot be invoked in this case. In a xvord, the plaintiff, by reason of the circumstances of this case, comes xvithin that class of lien claimants who have available to them under the statute but a single course to pursue to preserve their remedy by lien, viz., to file their liens within thirty days after they have ceased to labor upon or furnish material for the work to be done.

The effect of the construction herein of the statute, as amended in 1911, is obviously not to impair in any way the rights of any claimants, but, on the contrary, it seems to us, is to make it fair and just to all lien claimants. And no discrimination can result from the statute as it is so construed. The statute deals with two general classes of cases, and as we construe it those of each class are treated alike. The contingency upon the happening of which a member of each class must act to preserve his rights is plainly pointed out and affords to every claimant full opportunity for protecting his rights under the statute. If our construction of section 1187 would lead to any other result, xve would, of course, be compelled to hold, in the face of plain, ordinarily understandable words and language, that the legislature did not intend to say what the face of the language of the statute clearly and naturally implies and signifies. But, as we have shown, to give to all claimants their constitutional right to liens and at the same time give to oxmers just protection, there is no necessity for such a construction of the law established for the enforcement of liens as it exists at the present time. As declared, the law, as we here construe it, in no way curtails or qualifies or impairs the rights of any of the claimants of either class, but leaves all with equal rights, according to the several contingencies upon which they may preserve their right of lien, and affords them as well as the owners of property ample protection.

Accordingly, we conclude that the decision below is correct, and the judgment is, therefore, affirmed.

Buck, P. J., pro tern,., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 28, ,1919.

All the Justices concurred except Melvin, J., who was absent.