Schroeter

This was an action brought to foreclose a materialman’s lien. Judgment passed for the plaintiff and from that judgment and from the order denying defendants’ motion for a new trial they appeal. The appellants, H. M. E. Schroeter and his wife, are the owners, and George Beard was the contractor. The contract between the owners and the contractor was admittedly void. The material in question was lumber purchased by the contractor from the plaintiff.

The first proposition advanced upon appeal is that there is a fatal variance between the terms of the contract as expressed in the recorded claim of lien and the evidence adduced at the trial. The claim of lien declares that “the said George Beard agreed to pay for the same at the current market or list prices for such lumber in the Long Beach market on demand.” Goodhue, plaintiff’s manager, testified at one place that there was an express contract between the plaintiff and Beard that the lumber was to be purchased and was to be paid for when the building was completed. Elsewhere, he explains his meaning as follows: “Now, as to the time of payment, it is customary for us to furnish a bill when the job has been completed and make a…