De Camp Lumber Co. v. Tolhurst

Citations

• 99 Cal. 631
• 34 P. 438

Syllabus

<p>Mechanics’ -Liens — Foreclosure—Default of Contractor—Liability of Owner of Buildinq—Costs and Counsel Fees in Excess of Contract Price. —In an action against the owner of a building and the contractor to foreclose mechanics’ liens, the action of the contractor in permitting Ms default to he entered, is, in effect, an admission that the plaintiff's are entitled to the money, and where the owner of the building retains the balance of twenty-five per cent due the contractor in his hands, and apparently without cause or right raises a contest on every point and fights the case to the end, Ms liability is not limited to the amount due the contractor, but costs and counsel fees are properly allowed and made payable out of the proceeds of the property ordered to be sold to satisfy the liens.</p> <p>Id—Objection of Retention of Twenty-five per Cent—Benefit of Lien-holders—Construction of Code.—The object of section 1184 of the Code of Civil Procedure, which requires twenty-five per cent of the whole contract price for the erection of a building to be made payable at least thirty-five days after the final completion of the contract, is to protect subcontractors, material men, and laborers, thereby giving them , if unpaid, ample time after the completion of the work to file then' claims of lien and secure payment of any sums of money due them.</p> <p>Id.—Deposit of Money in Court.—The owner of a building, after its completion by the contractor, holds the money reserved, as required by secton il84 of the Code of Civil Procedure, for payment to the contractor or lien-claimant, whichever is entitled to it, and if there is a contest between them he should deposit the money in court to be paid to the party adjudged to be entitled to it.</p>