gno.law

W. F. Whittier v. J. W. Wilbur

California Supreme Court · No. 3,285. · 1874-04-05 · Published · 48 Cal. 175

W. F. WHITTIER and WILLIAM P. FULLER v. J. W. WILBUR Et Al.

Proceeding
appeal
Outcome
other — Idem.—If the statute gives the material man a lien on the bjiilding for materials furnished by him to a contractor who contracts with the owner, the contractor and owner cannot deprive the material man of his lien, by a clause in the contract, by which the contractor agrees to indemnify the owner against any liens taken by persons furnishing materials to be used in constructing the buildin
Area
civil
Panel
E. W. McKinstry (author)

Analysis

No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.

Opinion — McKinstry

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 *178 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.

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