Summary
In Reinhart Lumber Planing Mill Co. v. Hladik (Cal App), 259 P 363, certain plaintiffs released any lien which they might have for "concrete work and inside plastering."
Summary of this case from Northbrook Supply Co. v. Thumm Const. Co.Opinion
Rehearing Granted Oct. 3, 1927.
COUNSEL
Keyes & Erskine, of San Francisco, for appellants.
B.S. Gregory, of San Francisco, for respondent Reinhart Lumber & Planing Mill Co.
Adams & Adams, of San Francisco, for respondent W.P. Fuller & Co.
Erwin E. Richter, of San Francisco, for respondent Gibbs.
Aitken & Aitken, of San Francisco, for respondents S. Ginsberg and H. Ginsberg.
Edgar C. Levey, of San Francisco, for respondent Severin.
F.L. Hatch, of San Francisco, for respondent Killian.
Daniel A. Ryan, of San Francisco, for respondent Klimm.
Ernest J. Torregano, of San Francisco, for respondent Jas. H. Hardy, Inc.
OPINION
STURTEVANT, J.
The plaintiffs, severally, commenced actions to foreclose mechanics’ liens on a building located near Union and Steiner streets, in San Francisco. They named the contracting owners and certain fictitious individuals as defendants. Thereafter certain individuals claiming to be the present owners of the fee or of other interests, or representing, as trustees, other interests in said property, appeared and answered. They interposed certain denials and set forth certain new matter. A trial was had, and the trial court made findings in favor of the plaintiffs and against the persons so appearing and answering as defendants, and caused a decree to be entered in accordance with said findings. The defendants have appealed and present several points which they claim are reversible error. We will take up the points in the order presented by the defendants and state such facts as may be necessary to a consideration of each point as it is taken up.
1. The defendants contend that the findings are contradictory and are therefore against law. In this connection the defendants call to our attention that in some of the complaints it is alleged that the building was completed and accepted on January 22, 1920; that in some of the complaints the date is alleged as February 22, 1920; that the court made a finding that all the allegations of the complaint of the plaintiffs are true. The plaintiffs call to our attention that the trial court also made a finding that the building was fully completed and notice of completion was recorded January 22, 1920. The record discloses similar conflicts as to some of the other claimants. The filing of that notice started the time running as to when each claimant should file his notice of lien if any. Olson-Mahoney Lumber Co. v. Dunne Inv. Co., 30 Cal.App. 332, 341, 159 P. 178. The finding as to when that notice was filed was in accordance with the allegations of several of the complaints and the admissions contained in the answers. Moreover, the notice, together with the date and place of recordation, were admitted in evidence and were in entire accord with the admissions contained in the pleadings. The pleadings contained no admission regarding any other date, and no evidence was introduced in the entire record establishing or purporting to establish any other date. Conceding, for the purpose of this decision and solely for that purpose, that the general finding is susceptible of the construction claimed by the defendants, to wit, that the trial court made findings that the building was completed on February 22, 1920, it is clear that such finding was not supported by any evidence.
2. The second point made by the defendants is closely akin to the first one. The defendants claim that the lien of the Hardy Lumber Company was not filed within the time prescribed by law, and therefore has no validity as a lien. The evidence shows and the trial court found that company filed its lien on March 20, 1920. The trial court found the building was actually completed and notice of completion was recorded January 22, 1920; the notice filed by the Hardy Lumber Company was filed too late as a materialman’s lien. Code Civ. Proc. § 1187. The court did not find and the evidence does not show whether the Hardy Lumber Company was an original contractor as those words are used in the statute cited.
3, 4, 5, 6, 7. The trial court made findings against the defendants’ claim that the plaintiffs waived their liens and are estopped from claiming that they hold liens prior to October 6, 1919. The defendants claim the findings are not supported by the evidence. On September 17, 1919, the construction of the building had so far proceeded that it was nearly completed. On that date the owners had exhausted their funds and were unable to pay the several contractors on the building. They entered into negotiations with Gustave O. Heine to obtain the moneys necessary to pay the claims against the owners. They were advised that they would be furnished with the moneys upon the execution of a trust deed, but that arrangement must be made with the claimants whereby the trust deed would be and become a lien prior to any mechanic’s lien. Under date of September 30, 1919, W. Olschewski. Esq., an attorney at law representing G.O. Heine, prepared certain papers in couplets. A couplet was to be delivered to each claimant. The couplet consisted of two instruments. The first instrument read:
"The undersigned hereby consents to upon the receipt of $1,545 to execute a release, a copy of which is hereto attached and marked Exhibit A. Dated, San Francisco, Cal., September 30, 1919. Frank J. Klimm."
The second instrument, Exhibit A, was as follows:
"The undersigned defendants hereby release, and declare as satisfied to the date of these presents, all liens or claims he has acquired by virtue of any work or labor performed, material furnished, or money expended for concrete foundation or inside plastering in, to, or for the construction of the building now in course of construction (describing it). And that said liens are fully paid and discharged to date. Dated October 4, 1919. Frank J. Klimm."
Such instruments were not signed by W.P. Fuller & Co., Ginsberg Tile Company, and M.P. Killian. All of the other plaintiffs signed instruments identical in form with the first, differing only as to the amount, on September 30, 1919. They also signed instruments identical in form with the second instrument which we have just copied, but some signed on October 4, and some signed on October 6, 1919. At the same time and place that the second instrument was signed, a check was delivered to the signer for the amount of his claim. Each check was dated October 4, 1919. Each check was drawn on the Union Trust Company of San Francisco in favor of the claimant and for the amount due him. Each check was signed "Heine Piano Co., Inc. W.W. Reed, per G.O. Heine." On the face of each check appeared "Acct. J.C. Hladik." The deed of trust Hladik to Heine was recorded at 9 a. m. on October 4, 1919. Counsel has not called to our attention any conflict in the evidence which we have just recited. The evidence introduced in the case ran far afield. There was a very great deal of wholly immaterial evidence introduced. On that immaterial evidence there is some conflict. It is entirely unnecessary to recite such conflicts or to comment thereon. There is no conflict in the evidence to the effect that each of the purported releases was signed and delivered, and that each of the checks was delivered after the Heine trust deed was filed for record.
B. Milano had the contract for concrete foundations and inside plastering. He signed a release prior to September 27, 1919. It will be noted that every other release, whether signed by the plumber, lumberman, or otherwise, contained the phrase "for concrete foundations and inside plastering, * * * " Putting a finger on that phrase, the plaintiffs contend that it is manifest that they were not releasing anything because no one of them had done "concrete work or inside plastering." That the execution of the instruments was not a mere idle act is evidenced by the fact that each corporation was required to attach, and did attach, its corporate seal. Moreover, each claimant was asked to sign on the dotted line before he got his check. He did so. The phrase relied on by the plaintiffs is wholly unnecessary to the meaning of any one of the releases. Although the record contains upwards of 500 pages, there is not an intimation that in October, 1919, any one of the plaintiffs held anything purporting to be a claim against the property except the identical lien claims which are the subject of this controversy. But there is evidence that no one of the plaintiffs installed concrete foundations and inside plastering. To sustain the contention of the plaintiffs is to give the alleged releases no force or effect. That a mechanic’s lien may be waived by a written contract is settled law. 4 C.J. 314, § 415. That we have before us such a waiver cannot be disputed. But, the question to be decided is, "Does this written waiver include this particular lien?" Under the facts above stated and following the fundamental rules for the interpretation of contracts, the question propounded must be answered in the affirmative. Civ.Code, § § 1643, 1653; E. Aigeltinger, Inc., v. Burke, 176 Cal. 621, 628, 169 P. 373; Ames v. Southern Pacific Co., 141 Cal. 728, 731, 75 P. 310, 99 Am. St. Rep. 98; Ponder et al. v. Safety Building & Loan Co. (Ky.) 59 S.W. 858; Hughes v. Lansing, 34 Or. 118, 55 P. 95, 75 Am. St. Rep. 574, 579.
No claim is made that G.O. Heine did not cause the checks to be delivered or that they were delivered by the Hladiks. The evidence to the effect that Heine furnished the moneys and that those funds were to be secured by a trust deed is not disputed. Therefore there is no question but what the releases were supported by a sufficient consideration. Civ.Code, § 1605. As we are not now discussing the estoppel theory, the conflict in the evidence (as to when, where, and pursuant to what conversations the releases were executed and who conducted those conversations and what was said) becomes immaterial.
8. After the deed of trust had been executed and at a time when the terms of the promissory note, which it was given to secure, had not been performed, the trust deed was foreclosed, and a deed was made by the trustees to the Heine Piano Company. The trial court made a finding that before executing said deed the trustees did not comply with the provisions of said trust deed because no notice of the sale of said property was posted. The defendants contend that said finding is not supported by the evidence. The contention cannot be sustained. The power granted by the trust deed authorized the trustees to make the sales therein provided for only after giving notice " * * * in the manner and for a time not less than that required by law for sales of real property upon execution. * * * " The statute concerning notice of sales upon execution against real property required both a posting and a publication of the notice. Code Civ. Proc. § 692. The deed executed by the trustees recited that a notice was published. It was silent regarding a posting. That silence was some evidence that there was no posting of the notices. Savings & Loan Society v. Deering, 66 Cal. 281, 5 P. 353. On the latter subject there was a discussion in the trial court, but no other or additional evidence was introduced. We may not say the evidence did not support the finding.
In reference to the Heine trust deed the plaintiffs call to our attention the fact that the record contains considerable evidence to the effect that the note executed by the Hladiks and secured by the trust deed Hladik to Heine, for $7,500, was executed in violation of the Usury Act. Thereupon they make the contention that the entire transaction was void. That claim is too broad. The violation of the Usury Act (St.1919, p. lxxxiii) strikes at the item concerning interest, but does not strike at the principal. Haines et al. v. Commercial Mortgage Co. et al. (Cal.Sup.) 254 P. 956. Upon a new trial an accounting may be had as to the exact amount that was paid out by Heine to the Hladiks and the amount which Heine received from them or for their account. In this manner the true value of the Heine trust deed can be ascertained and determined, both in favor of and against all of the parties interested in the fund, a portion of which all are claiming.
9. After April 25, 1921, the date of the trustee’s deed to the Heine Piano Company, that company collected rentals, and as a part of its decree the trial court directed that such rentals be applied in satisfaction of any deficiency judgment that might be docketed against the Hladiks. The defendants contend that the provision referred to was not supported by the facts. The plaintiffs cite no authorities which support that portion of the judgment under attack. In taking accounts for the purpose of ascertaining the exact amount of the lien represented by the Heine trust deed, the rentals collected by Heine should be considered, but we see no merit in the claim that these plaintiffs are entitled to the rentals.
10. The defendants contend that the trial court should have made a finding that the plaintiffs’ liens, if any, were subsequent to a deed of trust theretofore made to Applegarth and a deed of trust theretofore made to Brickell. Findings 8 and 9 are on that subject. So are finding 13 and the conclusions of law. However, the defendants assert such findings are not sufficiently clear and complete. We think they are. They sufficiently protect the rights of the holders of those deeds of trust and the interests thereunder.
11. The trial court allowed interest on the claim of each plaintiff as from the date each plaintiff completed his contract. The particular contracts did not prescribe the date of payment. The defendants contend therefore that interest, if allowed at all, should have been provided as from the date the action to foreclose the lien was commenced. Hubbard v. Jurian, 35 Cal.App. 757, 766, 170 P. 1093. We think the contention is clearly correct.
12. The defendants say they were not served and did not appear in the actions brought by W.P. Fuller & Co., Ginsberg Tile Company, C.C. Severin, and M.P. Killian, and, therefore, that relief should not have been given against the defendants in favor of those plaintiffs. The error in this contention rests in a misconception of the record. Eight different actions were commenced to foreclose liens. All of them were commenced in May or June, 1920. Before any answer was filed by an order of court, they were consolidated on November 12, 1920. Thereafter, ignoring the order of consolidation, the defendants interposed, severally or jointly, three separate answers in each of two of the actions which had been consolidated, and one answer in each of two other actions which had been consolidated, and apparently no answer in the other actions which had been consolidated. Later the defendants served and filed a notice of motion to set for trial, made the motion, obtained the order, and then served and filed a notice that the trial had been set. When the cause was called for trial Mr. Erskine, representing all of the defendants except Mr. and Mrs. Hladik, immediately arose and called to the attention of the trial court the condition of the record. However, he did not object to proceeding with the trial, neither did he ask for time to plead, nor did he ask for a continuance. Mr. Hladik was called as a witness by the plaintiffs. He was asked some questions by counsel for the Reinhart Company and then Mr. Adams, attorney for the Fuller Company, commenced to propound some questions in behalf of the latter company. Mr. Erskine objected in behalf of the defendants to any evidence being offered by that company. We do not find that the objection was ruled upon, but Mr. Adams proceeded with the examination. Mr. Erskine did not ask for a ruling that the evidence be confined to the case as made by the plaintiffs against Mr. and Mrs. Hladik. After Mr. Adams finished his examination, Mr. Hatch, as attorney for the plaintiff Killian, proceeded to introduce his proof by examining Mr. Hladik. Then Mr. Ryan proceeded to examine the same witness regarding the claim of the plaintiff Klimm. Thereafter Mr. Aitken proceeded to examine the same witness regarding the claim of the Ginsberg Company. During the foregoing proceedings Mr. Erskine asked some questions, made many objections, and made many suggestions. If, as he contended, his clients had not been served and had not appeared, Mr. Erskine had no right to be heard. These various acts of the defendants constituted a general appearance. Martin v. Howe, 190 Cal. 187, 211 P. 453. Later in the case Mr. Severin was called and was examined as a witness in his own behalf by his attorney, Mr. O’Donnell. From what we have stated, it will thus appear that the defendants took the position that the trial was proceeding piecemeal; that is, as to four of the plaintiffs the trial was proceeding as against the defendants represented by Mr. Erskine, and as to the remaining plaintiffs the trial was not proceeding even against the Hladiks. The statute does not authorize such procedure.
13. What we have just said in disposing of the former point renders it unnecessary to discuss the claim that there was no appearance in the Ginsberg Case. That action had been merged in the consolidated action in which the defendants made a general appearance as shown by what we have said in discussing the last point.
M.P. Killian did not execute a release and as to his claim the judgment is affirmed. W.P. Fuller & Co. and Ginsberg Tile Company did not execute any releases. The Fuller Company was allowed interest from February 20, 1920, whereas it was entitled to interest from May 18, 1920. The Ginsberg Company was allowed interest from January 22, 1920, whereas it was entitled to interest from May 20, 1920. The judgment is modified accordingly as to each of those claims, and as so modified it is affirmed. As to each of the other claims the judgment is reversed and the action is remanded for further proceedings not inconsistent with what has been said above, and the trial court is directed to allow the Hladiks to plead and to allow any of the other parties to amend their pleadings in such manner as such party may be advised. The plaintiffs M.P. Killian, W.P. Fuller & Co., and Ginsberg Tile Company are allowed their costs against the defendants, but as against the other plaintiffs the defendants are allowed their costs.
We concur: KOFORD, P. J.; NOURSE, J.