Wilson v. Hind

Temple, J.

This appeal is from the judgment and was taken within sixty days after its rendition. The action was to foreclose a materialman’s lien. The court held that plaintiffs had no lien on two grounds: 1. Because they did not furnish material to the owner or his agent, or to a contractor or subcontractor; 2. Because there was a fatal variance between the contract proven and that stated in the claim of lien.

Henry Behrens was the contractor. He contracted with W. R. Johnston to furnish all the mill work for the house, and to deliver it at the building. Mr. Johnston was called as a witness for plaintiffs, and testified that mill work included certain manufactured material, such as front door frame, door, toplight, recess panels, portico (columns or bracket or cap, balustrade, put together), window frames, sashes, etc. Witness further said: “ I generally bought all my doors, and sash and blinds, and all stock material, you know, from Wilson & Brother.”

“ The Court. Stock material means material that is kept in stock? A. Yes, sir; manufactured. Yes, sir; all stock, doors, sashes, blinds, and transoms, and such like. We did not manufacture these in our mill—nothing only hard work.”

These extracts sufficiently show the nature of the con* tract both between Behrens and Johnston and between Johnston and plaintiffs.

It is very evident that Johnston was a materialman only. (Hinckley v. Field’s Biscuit etc. Co., 91 Cal. 140.)

There was also a material variance between the contract set forth in the claim of lien and that proven. In the notice of lien it was stated that the contract was that the corporation was to be paid what the goods were reasonably worth, and that the subcontractor was to deliver to said Wilson & Brother immediately upon the acceptance of the building an order for the amount due to said plaintiff by said subcontractor, signed by the original contractor, Henry Behrens, and indorsed by the said Robert R. Hinds, etc.

The evidence was that Johnston bought the goods at a fixed price, and on his own credit, and there was no agreement in regard to an order upon Hinds, or that plaintiffs were to be paid from the contract price at all.

If these conclusions are correct, other points suggested need not be noticed.

The judgment is affirmed.

McFarland, J., and Henshaw, J., concurred.