W. F. Whittier v. J. W. Wilbur , 48 Cal. 175 ( 1874 )

By the Court, McKinstry, J.:

We can see no constitutional or other objection to a statute securing a lien to a material man for the value of the materials which have gone into a building; provided, the aggregate liens do not exceed the contract price as fixed by the owner and original contractor.

And in such cases the contractor and owner cannot de prive the material man of his lien by introducing a stipulation into the building contract, by which the contractor agrees to indemnify the owner against any lien by persons furnishing materials to be used in the construction of the building.

In case of judgment on behalf of the material man against the owner and his property, the latter is entitled to deduct from any sum due the contractor, the amount of such judgment. (Stats. 1867-8, p. 592.)

On the present appeal it does not appear that the asserted liens amount to the contract price, or that such price was paid when this action was commenced, or the liens were filed.

Judgment reversed and new trial ordered.

Mr. Justice Rhodes did not express an opinion.