Kuschel v. Hunter

Citations

• 5 Cal. Unrep. 793
• 50 P. 397
• 1897 Cal. LEXIS 961

Syllabus

<p>Vendor’s Lien—Priority Over Mechanic’s Lien.—The priority of a vendor’s lien over a subsequent mechanic’s lien for work done on the land with knowledge of the vendor’s claim is not affected by the latter’s noncompliance with Code of Civil Procedure, section 1192, requiring a person having or claiming an interest in land on which an improvement is to be erected to give notice that he will not be responsible for the cost of the same.</p> <p>Mechanic’s Lien.—One Seeking to Establish a Lien Under Act of March 31, 1891 (Stats. 1891, p. 195), requiring corporations to pay laborers and mechanics wages due weekly or monthly on such day as shall be selected by the corporation, and giving said laborers a lien for wages not so paid, must show that his wages were payable weekly or monthly.</p> <p>Mechanic’s Lien.—An Allegation That Claimant “Agreed to Do Work by the month” at the “agreed rate of $100 per month” is not dn allegation that the corporation agreed to pay him monthly.</p> <p>Mechanic’s Lien.—A Finding of the Court That the Corporation “Promised” claimant “the sum of $100 per month,” and that it did not pay “its employees” the wages earned by them “weekly or monthly on a pay-day in each week or month selected by said company,” is not equivalent to a finding that the corporation agreed to pay claimant monthly.</p> <p>Appeal.—A Reviewing Court cannot Add Any Fact to the Findings of the trial court by presumption.</p> <p>Master and Servant—Term of Service—Payment of Wages.— Civil Code, section 2011, declares that, “in the absence of any agreement” as to the term of service, time of payment or rate of wages, a servant is presumed to be hired by the month, at a monthly rate of wages, to be paid when the service is performed. Held, that where the evidence is not before the supreme court, it will not presume that there was no agreement as to the time a servant’s wages were to be paid, in order to render available the presumption authorized by such provision of the code.</