Piping Specialties Co. v. Kentile, Inc.

• Decision Date: 10 September 1964
• Court: California Court of Appeals Court of Appeals
• Parties: PIPING SPECIALTIES CO., Inc., Plaintiff and Appellant, v. KENTILE, INC., and W. W. Price and Company, Defendants and Respondents. Civ. 27684.

Page 537

40 Cal.Rptr. 537

229 Cal.App.2d 586

PIPING SPECIALTIES CO., Inc., Plaintiff and Appellant, v. KENTILE, INC., and W. W. Price and Company, Defendants and Respondents.

Civ. 27684.

District Court of Appeal, Second District, Division 4, California.

Sept. 10, 1964.

Flynn & Rafferty and Owen P. Rafferty, Los Angeles, for plaintiff and appellant.

Iverson & Hogoboom and John C. Cushman, Los Angeles, for defendant and respondent W. W. Price & Co.

No appearance for defendant and respondent Kentile, Inc.

KINGSLEY, Justice.

Defendant Kentile, Inc. (hereinafter 'Kentile') is the owner of real property in Los Angeles County. It contracted with defendant W. W. Price and Company (hereinafter 'Price') for the construction by the latter of a 'tank farm' in connection with a plant erected by Kentile on that property. Price, in turn, contracted with defendant Gray Fabrications Co. (hereinafter 'Gray') for the fabrication and delivery of certain jacketed fittings, consisting of ells, tees and spools, to be used in the performance of Price's construction contract. Gray, in its turn, purchased from plaintiff (hereinafter 'Piping') materials which were used by Gray in filling its contract with Price.

Price has paid Gray all monies due the latter under the contract between them except for a nominal sum of $94.23, and has received from Gray a release of any lien rights which Gray might have had. Gray is an adjudicated bankrupt, and Piping holds an unpaid claim against Gray, in the amount of $9,107.04, for the materials furnished by Piping to Gray.

Piping duly filed its mechanic's lien against the property and thereafter brought the present action, seeking a foreclosure of that lien and for judgment against Kentile and Price for the unpaid balance of its account. After a trial, judgment was entered against plaintiff and it has appealed.

As presented to us, the sole question is the status of Gray--i. e., whether Gray was a subcontractor of Price or a materialman. It is conceded that a supplier of a materialman is not entitled to a lien, but that a supplier of a subcontractor is. The trial court found that Gray was a materialman and it is this finding (expressed in several findings of fact and conclusions of law) which is here attacked.

The line of distinction between materialmen and subcontractors has arisen in numerous cases. Both parties agree that, insofar as the present case is concerned, we start with a definition laid down by the Supreme Court in Theisen v. County of Los Angeles (1960) 54 Cal.2d 170, 5 Cal.Rptr. 161, 352 P.2d 529. In that case, the court, after rejecting two other tests--whether or not the work was done on the job site, and whether or not more than a minimal amount of labor was involved in installation--set forth a standard in the following language:

'In our opinion the essential feature which constitutes one a subcontractor rather than a materialman is that in the course of performance of the prime contract he constructs a definite, substantial part of the work of improvement in accord with the plans and specifications of such contract * * *.' (Theisen v. County of Los Angeles, supra, (1960) 54 Cal.2d 170, 183, 5 Cal.Rptr. 161, 169, 352 P.2d 529, 537.)

The trial court held that the part of the work performed by Gray was not 'substantial' and that Gray had not performed 'in accord with the plans and specifications,' within the meaning of those two requirements of Theisen. If either of these two ultimate conclusions is correct, the judgment will stand; if both are wrong, it must be reversed.

I

We conclude that the determination that Gray had not performed a 'substantial part of the work' was in error.

The finding of fact in this connection was as follows:

'9. The value of the contract between Kentile and Price without adjustments for changes or additions was $455,094.00, and was larger after those adjustments. The value of the contract between Price and Gray was $29,237.87. The value of the work performed by Gray was not substantial in comparison to the total dollar volume of the contract. The work performed by Gray when considered on a functional basis was substantial.'

This finding does not support the conclusion that Gray was a materialman and not a subcontractor for three reasons. First, even on the theory apparently adopted by the trial court, Gray's work seems to us to have been...