Opinion
Appeal from a judgment of the Superior Court of Marin County, and from an order denying a new trial.
COUNSEL:
J. H. Boalt, Hepburn Wilkins, and H. A. Powell, for Appellant.
Lloyd & Wood, E. S. Lippitt, Charles F. Hanlon, and O. P. Evans, for Respondents.
JUDGES: In Bank.
OPINION
THE COURT Upon further consideration of this case, we are satisfied that the conclusion we reached on the former hearing -- viz., that the claim of lien was not filed within thirty days after the completion of the work -- was based upon a misapprehension as to the evidence. The claim was filed June 18, 1884. While it is true the work done after May 17th was work not contemplated by the contract, it nevertheless appears that it was done under the direction of the chief engineer, and that the obligations of the contractor to the company were not extinguished until the debris which he had placed upon Mr. Porter's lot was removed therefrom. The testimony of Mr. Walsh on this subject consists [25 P. 126] largely of conclusions; but it went in without objection on that ground, and, as against a motion for nonsuit, must be considered as sufficient to establish appellant's contention that the work was not completed until June 2d. He testified as follows: "The work on the railroad under the contract was completed June 2, 1884. The last two weeks of the work were occupied in moving rock which had been dumped at the end of the tunnel in section No. 1, on Mr. Porter's ground, contrary to the terms of the contract. The rock was moved back to the right of way, to make it comply with the contract. I was instructed by Mr. Zook, chief engineer, to do this work, May 17, 1884. The last day we were at work was June 2, 1884."
We have carefully examined the record in the case of Mahone v. Big Flat Mining Co ., 76 Cal. 578, and think it sustains appellant's contention, that, although the claim of lien was in part for articles (picks and shovels) not the subject of lien, the court should permit the plaintiff, by proof, to make the necessary segregation, throw out the value of such articles, and declare a lien for the balance. In the case referred to, the claim of lien included an item of deer and bear meat, but the lien was held to be good to the amount of the lienable articles; and the rule seems to be, that unless there is something to show a willful attempt to claim a lien for the non-lienable articles, the lien is not lost. (Whitford v. Newell, 2 Allen, 427; Phillips on Mechanics' Liens, sec. 355.) Upon the same principle, it was held, in Barber v. Reynolds , 44 Cal. 533, that notwithstanding the fact that the claim filed was for too much, it would still be valid, unless it should appear it was a willfully false claim, within the meaning and intent of the statute.
It was not necessary for the plaintiff to designate what portion of the materials was furnished to each of the contractors, as Hawley was the only person with whom the company had to settle, and the latter was liable only for the balance of the contract price held by it at the time the notice of lien was filed. (Harmon v. San Francisco etc. R. R. Co., ante, p. 617.)
Judgment and order reversed, and cause remanded for a new trial.