Goss v. Strelitz

Citations

• 54 Cal. 640

Syllabus

<p>Mechanic's Lien—Claim—Mistake.—In a claim of lien by a material-man it was stated, that bricks of a specified value, (quantity or number not stated) were furnished for the construction of defendants’ building, between February 20th and April 14th, 1877. In an action to foreclose the lien, the complaint alleged, and the Court found, that the plaintiff commenced to deliver the bricks on the sixth day of February, and that the statement of February 20th as the date was a mistake; and that, between the former date and April 14th, bricks were delivered by the plaintiff to the quantity and value alleged in the complaint. Held, that the plaintiff was entitled to recover only for the bricks furnished between the dates stated in the claim; and that, as the quantity furnished between those dates did not appear from the finding, a new trial, was necessary.</p> <p>Id.—Id.—Id.—A claim of lien is not an instrument in the nature of a written contract, to be reformed by a Court of Equity in appropriate cases; but it is a prerequisite to the maintenance of a proceeding which gives a plaintiff an extraordinary,remedy, to secure the benefit of which he must comply with the terms of the statute.</p> <p>Id.—Application of Payments.—Pending the delivery of the bricks, and within a few days thereafter, the original contractor paid money to the plaintiff, without specially directing the application of the payments; and the plaintiff applied a portion of the money to the payment of a debt, due him from the contractor previous to the making of the contract. Held— by McKee, J., concurring—that he had no right to do so.</p>