National Lumber Co. v. Kennedy

Action to foreclose an alleged lien for materials sold by plaintiff to defendant Miller for use in the construction by him, as contractor, of a building for defendant Kennedy.

Miller made default. Kennedy answered, and upon trial judgment was entered for said defendant. The' appeal is by plaintiff from an order overruling its motion for a new trial.

No record was made of the contract, which was for a sum exceeding one thousand dollars.

Two questions are presented: First, was the lien filed within the time required after the completion of the building, as provided in section 1187, Code of Civil Procedure? If not, did the acts and conduct of Kennedy as owner of the building estop him from urging such ground as a defense to the action?

The court found that the building was fully completed on October 15, 1909, but that no notice of its completion was ever at any time filed with the county recorder; that plaintiff’s claim and notice of lien was not filed until March 15, 1910, which was one hundred and fifty-one days after-the completion of the building; that Kennedy did not, between November 3 and November 15, 1909, as alleged in the complaint, or 'at any time, state to plaintiff…