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Judgment reversed and cause remanded, with directions to the court below to dismiss the proceedings.

We concur: MCKEE, J.; MCKInstry, J.

(2 Cal. Unrep. 591)

PERRY and others v. BRAINARD and others. (No. 9,724.)

Filed December 19, 1885.


A mechanic's lien is not acquired upon a building by a subcontractor who has furnished materials to be used thereon, by filing his claim prior to the completion of the building. Cal. Code Civ. Proc. § 1187.

In bank. Appeal from superior court, county of Los Angeles. Thom & Stephens, for appellants.

Brunson & Wells and J. Brosseau, for respondents.

Ross, J. Defendant Brainard contracted to construct a certain dwelling-house for defendant Beaudry for a certain sum of money, and the plaintiffs contracted with Brainard to furnish certain material for the house. The court below found that the lien which was sought to be enforced by the action was filed prior to the completion of the building, and was therefore prematurely filed. The statute reads:

"Every original contractor, within sixty days after the completion of his contract, and every person save the original contractor, claiming the benefit of this chapter, must, within thirty days after the completion of any building, improvement, or structure, or after the completion of the alteration or repair thereof, or the performance of any labor in a mining claim, file for record," etc. Code Civil Proc. § 1187.

It will be seen that the time prescribed by the statute for the filing of the plaintiffs' claim was "within thirty days after the completion of the building." Under a similar statute the supreme court of Kansas lately held in two cases (Davis v. Bullard, 4 Pac. Rep. 75, and Seaton v. Chamberlain, Id. 89) that a claim so filed was premature, and a lien based thereon could not be enforced. The reasoning of that court commends itself to our judgment, and is much the same as was used here in Dingley v. Greene, 54 Cal. 335. "No privity of contract," said the court in Davis v. Bullard, "exists between the owner of the building and the subcontractor, but the subcontractor's rights are based simply and solely upon his contract made with the contractor. The contractor, and not the owner of the building, is the subcontractor's debtor, and the subcontractor has no right to claim that the building has been completed until the contractor under whom he claims has such right. Under the contract between the owner and the contractor, the owner agrees to pay the contractor a certain sum for constructing the building, and this sum is a fund which may be held under the statutes for the payment, so far as it will go, of all the claims of all the various subcontractors, for work and materials fur

nished by them to the contractor, who is the principal and head of all; and all the parties entitled to payment or contribution out of this fund should be able to reach the fund and get their proportionate shares thereof at the same time or within the same period of time. Besides, one subcontractor ought not to be able to reach this fund and appropriate it to the extent of his claim before another subcontractor could reach it; for if the fund should not be sufficient to pay the claims of all the subcontractors, then each subcontractor should be paid only a proportionate share thereof. Now, the amount of all the claims of all subcontractors can be ascertained only after all the work and materials have been furnished, and after the building has been completed, so far as the contractor is required to complete the same; for the whole of the work may in fact be done by subcontractors only, or the last item of work performed or materials furnished may be performed or furnished by a subcontractor. The building in such a case would be completed by a subcontractor; and the subcontractor completing the building, or furnishing the last item of work or material therefor, is entitled to his proportionate share of the general fund equally with the subcontractor who furnished the first item of work or material, or any intermediate portion thereof. Of course, when the contractor has furnished, through himself or his subcontractors, all the work and material which he has agreed to furnish, then the building is completed so far as he is concerned, and is also completed so far as all the subcontractors under him are concerned; and the contractor and each of the subcontractors may then file their respective statements for liens, and each will then become entitled to his proportionate share of the fund."

Other provisions of our statute go to show that this is the true construction of section 1187. Section 1190 declares that "no lien provided for in this chapter binds any building, mining claim, improvement, or structure for a longer period than ninety days after the same has been filed, unless proceedings be commenced in a proper court within that time to enforce the same; or, if a credit be given, then ninety days after the expiration of such credit; but no lien continues in force for a longer time than two years from the time the work is completed by any agreement to give credit."

It is obvious that if a subcontractor may file his claim before the completion of the building at all, it may very well happen that the building may not be completed until more than 90 days after the claim is filed; and since section 1190 of the Code provides that no lien shall be binding for a longer period than 90 days after the same has been filed, unless proceedings be commenced in a proper court within that time to enforce the same, it follows that under such a construction of section 1187 a suit might be maintained to enforce the lien of a subcontractor before the completion of the original contract. This would not only be to give one subcontractor a preference over another, not allowed by the statute, but might subject the owner

to suit, and possibly his property to sale, although strictly conforming to his contract. In further harmony with the conclusion that section 1187 fixes a common starting point for all subcontractors under the same original contractor is section 1195, which provides that "any number of persons claiming liens may join in the same action, and when separate actions are commenced, the court may consolidate them."

The danger suggested by appellant's counsel to subcontractors in thus holding is not perceived; for the owner who pays to the original contractor with notice that the subcontractor has not been paid, will be liable to the lien of the latter, and it is an easy matter for the subcontractor to acquaint the owner with such fact. It becomes unnecessary to consider any other point made for appellants. Judgment and order affirmed.


(68 Cal. 200)

LEWIS and others v. STEIGER and others. (No. 9,042.)

Filed December 19, 1885.


If a question is put to a witness which is collateral or irrelevant to the issue, his answer cannot be contradicted by the party who asked the question, but is conclusive against him. But an exception to this rule exists in the case where the witness of one party, on cross-examination by the opposite party, denies that he offered to procure testimony for him for a money consideration, such party being entitled to give evidence to the contrary.

Department 1. Appeal from superior court, city and county of San Francisco.

C. H. Parker and J. J. Bart, for appellants.
Roche & Desbeck, for respondents.

Ross, J. On the trial of this cause in the court below one Knight was examined as a witness in rebuttal, and gave testimony material for the plaintiff. On cross-examination he was asked, in effect, if he had not, at a certain time and place, proposed to the defendant to procure testimony for him in the case upon the payment by defendant of $250. Knight having answered in the negative, the defendant was called in his own behalf in surrebuttal, for the purpose of showing that such a proposal had been made by Knight, and of thus impeaching his testimony. To this plaintiff objected, upon the ground that as the transaction for the purchase of testimony was a matter purely collateral to the issues in the case, and was brought out by defendant on cross-examination, he was concluded by the answers given. The objection was sustained, and the ruling of the court in that regard constitutes the ground of the appeal.

The ruling was erroneous. The case comes within the exceptions to the rule that if a question is put to a witness which is collateral or irrelevant to the issue, his answer cannot be contradicted by the party

who asked the question, but is conclusive against him. It does not admit of doubt that if Knight did in fact offer to procure testimony for defendant in the case for a money considration, it was a corrupt proposal, and would tend to impeach the testimony that he himself had given. "The rule will be found a general one," said the court in Morgan v. Frees, 15 Barb. 354, "and will be sustained by the cases, that when the witness on his cross-examination denies a particular fact, going barely to impeach his general character and credit, witnesses cannot be called to contradict him. But a distinction is made between the right to contradict the witness in respect to any fact relating to his conduct in the particular cause, and the right which goes to the point of his being a man worthy of credit generally. This distinction was taken by the court in Yewins' Case, 2 Camp. 638. The distinction, however, has sometimes been overlooked, as was done by LAWRENCE, J., in Harris v. Tippett, 2 Camp. 638, decided at nisi prius. This case was undoubtedly wrongly decided, and the principle was applied in the haste of nisi prius. It is not to be doubted that where a witness for the defendant has attempted to dissuade one of the plaintiff's witnesses from attending the trial, and denies on his cross-examination that he has done so, the plaintiff is entitled to give evidence to contradict him in this respect. Such evidence is addressed to his conduct in the particular suit, and ought to detract very much from his credit in the suit; and such evidence is admissible to affect the credit of the witness in the particular case. Atwood v. Welton, 7 Conn. 66; 2 Camp. 637. And so, in the case under consideration, it was competent for the defendant to show that the witness Miller had endeavored to corrupt the witness Webster and induce him to swear false in this particular suit, to the prejudice of defendant.' See, also, Davis v. Roby, 64 Me. 427; State v. Patterson, 2 Ired. 346; State v. Roberts, 81 N. C. 605; Bullard v. Lambert, 40 Ala. 204; 1 Greenl. Ev. § 462; 2 Tayl. Ev. § 1451.

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The record shows that the attention of the witness Knight was sufficiently called to the subject, and his denial sufficiently explicit to allow the contradictory evidence offered by defendant Judgment and order reversed, and cause remanded for a new trial.

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(68 Cal. 205)

MEHEREIN and others v. BALL and others. (No. 9,16.)

Filed December 19, 1885.


Where wool was purchased "subject to grader's rejection," such term meaning that the wool was subject to examination by wool-graders, and to rejection or allowance on contract price for such wool as was of an inferior quality, the custom of the place requiring the examination of the wool to be fleece by fleece, held, that if the examination was not conducted in such manner, the vendees, after retention of the wool, were liable for the contract price, though they subsequently, after the vendors' refusal to abide by their rejection, offered to have it graded fleece by fleece.

Department 1. Appeal from superior court, city and county of San Francisco.

Chickering & Thomas, for appellants.

Mich. Mullany and Joseph Hutchinson, for respondents.

Ross, J. The complaint charges, and defendants by their pleading admit, that the plaintiffs sold and delivered to defendants a certain lot of wool at the rate of 20 cents per pound, "subject to graders' rejection." It is alleged in the complaint that the term "graders' rejection" was understood by the parties to mean, and is generally understood among wool dealers in the city of San Francisco, where the transaction occurred, to mean, that upon the receipt of the wool by the defendants they should place it in the hands of persons skilled in grading wool, known as "wool-graders," for the purpose of ascertaining what portion, if any, of the wool is taggy and scabby, and if any portion of it should be found to be taggy and scabby, that defendants should forth with notify plaintiffs, and furnish them with a certificate of the graders to that effect, giving the weight and amount of the wool found taggy and scabby, which should be deducted from the gross amount delivered to the defendants, and returned to plaintiffs, and the balance of such gross amount should be paid for forthwith at the rate per pound agreed on, plaintiffs to be apprised of the result of the grading within a reasonable time-in this case 10 daysfrom the delivery of the wool to defendants. The meaning of the term "graders' rejection," as alleged by the plaintiffs, is not controverted by the defendants, except they allege in their answer that it also includes the right of the graders to reject any or all wool of a substantially different character from that purchased.

Thirty-three of the forty sacks of the wool delivered to defendants were graded and accepted by defendants, and by them shipped east; and they also took from one or two of the remaining sacks enough wool to fill an order they then had. But all these remaining sacks the defendants claimed to have been rejected by the graders, and that the plaintiffs were notified of such fact within a reasonable time. But the plaintiffs, upon receiving the notice, contended that the wool had not been graded in accordance with custom and the understanding of the parties, in that the bales claimed to have been rejected were not examined fleece by fleece, and refused to abide by the rejection.

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