70 Cal. 28, 9444, Turner v. Strenzel

Docket Nº:9444
Citation:70 Cal. 28, 11 P. 389
Opinion Judge:THORNTON, Judge
Party Name:A. J. TURNER, Appellant, v. JOHN STRENZEL et al. JOHN STRENZEL, Respondent
Attorney:William & George Leviston, and William H. Fifield, for Appellant. Daniel Titus, for Respondent.
Judge Panel:JUDGES: Thornton, J. McKee, J., and Sharpstein, J., concurred.
Case Date:June 17, 1886
Court:Supreme Court of California
 
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Page 28

70 Cal. 28

11 P. 389

A. J. TURNER, Appellant,

v.

JOHN STRENZEL et al. JOHN STRENZEL, Respondent

No. 9444

Supreme Court of California

June 17, 1886

Department Two

Appeal from a judgment of the Superior Court of Contra Costa County.

COUNSEL:

William & George Leviston, and William H. Fifield, for Appellant.

The owner of the building, by preventing performance by the contractors and confiscating the materials furnished them, is liable for the liens of the material-men, and is estopped from saying that no part of the contract price is due and unpaid. (Preston v. Sonora Lodge , 39 Cal. 117; Shaver v. Murdock , 36 Cal. 293; Weber v. Weatherby , 34 Md. 656; Schwartz v. Saunders , 46 Ill. 18.)

Daniel Titus, for Respondent.

The complaint was insufficient in that it did not allege that any money was due the original contractor when the lien was filed. (Dore v. Sellers , 27 Cal. 593; Renton v. Conley , 49 Cal. 187; Wells v. Cahn , 51 Cal. 423; Dingley v. Greene , 54 Cal. 333; Rosekranz v. Wagner , 62 Cal. 151; Whittier v. Hollister , 64 Cal. 283; O'Donnell v. Kramer , 65 Cal. 353.)

JUDGES: Thornton, J. McKee, J., and Sharpstein, J., concurred.

OPINION

THORNTON, Judge

Page 29

Action by the assignee of material-men to foreclose what is alleged to be a mechanic's lien.

There was a demurrer by defendant Strenzel to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, which was sustained. The plaintiff declined to amend, and judgment was entered against him, from which judgment this appeal is prosecuted.

The complaint states that the defendant Strenzel was the owner of the premises on which he contracted with Sylvester and Langabee to erect a building for the sum of eight thousand two hundred dollars; that the contractors, Sylvester and Langabee, proceeded, under the contract, to erect this building on the premises aforesaid, and so continued until it was in an advanced stage, and they had earned and received two installments of the contract price of fifteen hundred dollars each; that while so engaged, they purchased the material sued for from the assignors of plaintiffs, Turner, Kennedy, & Shaw, to be used in the building; that the building has been completed and a lien filed in time; that the defendant Strenzel, from the...

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