This is an appeal from a judgment for the foreclosure of certain mechanics’ liens, and is prosecuted upon the judgment-roll. There is but one question presented by the appeal. The appellant Plaminond Lumber Company claims a priority over the liens of the respondents under a certain trust deed through a breach of the conditions of which it holds a grant deed to the property which is subject to the decree or foreclosure rendered by the trial court.

On April 29, 1915, Fred W. Siegel, as the party of the first part, and Lawrence Holmes, as the party of the second part, entered into an agreement, the entire text of which, after its introductory parts, follows:

The second trust deed mentioned in the agreement was executed by Holmes on May 8, 1915, Siegel being the beneficiary under it, and Holmes then also made and delivered the promissory note for twelve thousand five hundred dollars, for the payment of which the trust deed was security. On the same day Siegel transferred the note and the trust deed to the appellant Hammond Lumber Company, the consideration for the transfer being the agreement' of the latter to pay to Siegel the sum of twelve thousand five hundred dollars in “credits and materials.” This payment was later made.

The trust deed was placed of record on May 17, 1915. The various agreements of the respondents to furnish labor and materials for the job mentioned in the contract were of date, respectively, August 12, September 3, and September 21, 1915, and March 10, 1916. The power of sale in the trust deed was exercised, on account of a breach of conditions named in the deed, and pursuant to the sale a grant deed was executed to the appellant Hammond Lumber Company November 4, 1916, and it was recorded January 13, 1917.

The trial court found that the execution of the trust deed for the benefit of Siegel was a constructive ■ fraud upon the respondents, and that, in accepting the note and trust deed, Siegel attempted to assign a portion of.the contract price for the performance of the work contemplated by the agreement. Upon these findings it was decreed that the lien claims of the respondents are superior to the rights of appellant Hammond Lumber Company accruing to it pursuant to the provisions of the trust deed.

Our first and practically our only labor must be to place a construction upon the agreement entered into between Siegel and Holmes. The respondents contend that the instrument made Siegel an original contractor for the performance of the work mentioned in it, and the findings of the trial court constantly so term him. It is apparent from the nature of the particular findings above specifically noted that the trial court so considered him. [1] On the other hand, appellants view the contract as one consummating an employment of Siegel as a mere representative or agent of Holmes, so constituted for the purpose of raising funds for the carrying on of the work as well as to purchase material and to superintend construction. The terms of the contract, loosely drawn as it is, furnish some basis for these warring claims as to its meaning; but probably the strongest argument to be made in support of the contention that under it Siegel was an original contractor is to be found in the fact that he executed a bond to secure laborers and materialmen in the performance of labor and the furnishing of materials for the job. We are far from satisfied, however, that Siegel was an original contractor. The fact that, according to the terms of the agreement, he was to “order and have furnished all labor and material necessary” for the work; that “all labor, material and subcontracts employed in the construction” of the improvement were to be “approved” by Holmes “before any purchase or contract is consummated”; that the money to the extent of eleven thousand five hundred dollars supplied by the Fidelity Savings and Loan Association, “together with the second trust deed made to' Fred W. Siegel, amounting to” twelve thousand five hundred dollars, was supposed, in the first instance, at least, to “be sufficient to pay the total cost of the construction of said building as herein provided”; that Holmes would, “on demand and as bills are presented, checked off and approved, pay all bills for material and labor as same are used and furnished” in construction; that Siegel “agrees to superintend the construction of said building, to order all material and labor, and to generally look after the erection and economical construction of said building”; that Holmes “agrees to pay to” Siegel “for said services a sum equal to ten per cent of the total cost of the construction of said building”; these circumstances, we say, convince us that the construction of the agreement which is contended for by appellants is the correct one. That being so, the Siegel trust deed, in so far as the rights of the beneficiary under it are concerned, stands exactly in the same position as the trust deed which, pursuant to the terms of the agreement, was executed in favor of the Fidelity Savings and Loan Association. As the latter instrument was plainly superior to the lien claims of the respondents (W. P. Fuller & Co. v. McClure, 48 Cal. App. 185 , [ 191 Pac. 1027 ]), so was the trust deed to Siegel. The findings of the trial court to the effect that the execution of the Siegel trust deed was a constructive fraud upon respondents and that Siegel, by accepting the trust deed, attempted to assign a portion of the contract price, are not supported by the evidencp.

The judgment is reversed.

Finlayson, P. J., and Craig, J., concurred.

A petition to have' the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 14, 1921.

Shaw, J., Lawlor, J., Wilbur, J., and Lennon, J., concurred.

Angellotti, C. J., Sloane, J., and Olney, J., voted for granting of petition.