Goss

Section 1187 of the Code of Civil Procedure—a section which forms part of the chapter which treats of “ Liens of Mechanics and others upon Real Property ”—reads:

Within thirty days after the completion of the building for which the material was furnished, plaintiff, a material-man, filed his claim of lien, the portions whereof necessary to be considered arc as follows:

Recorded liens bind a building only ninety days, unless in the meantime suits shall be brought to foreclose them; the statute provides for the enforcement of the liens of the sub-contractors and material-men against the particular property of the owner of the building and surrounding lands, and attempts to create no privity by which the latter shall become personally indebted to the former; it is the liens which are to be marshaled, and their relative rank declared; the scheme as a whole, as well as its details, indicates the purpose of the law-makers that the rights of sub-contractors and material-men should be ascertained by reference to the liens as filed, or should rest upon proof of contracts between them and the original contractor such as accord with the terms and conditions set forth in the claims of…

I concur in the judgment, because, in addition to the reasons given by Mr. Justice McKinstry, I think the Court below erred in finding that the contractor was indebted to the plaintiff on the 22nd of April, 1877, in the sum of $600, for a balance due for the bricks which the plaintiff had furnished for the construction of the building of the defendant.

The admissions of the plaintiff in the asserted lien, and those in the complaint, as to the value of the bricks, and the proofs of the plaintiff as to the money which he had received from time to time on account of them, conclusively show that the contractor was not indebted to the plaintiff, at the utmost, more than $375. And assuming it to be true, as in the asserted lien it is stated and verified by the oath of the plaintiff, that the plaintiff commenced to furnish bricks for the building on the 20th of February, 1877, and continued to furnish them from time to time until the 14th of April, 1877, it is not proven that the contractor was indebted to the plaintiff in any sum whatever for which the defendant would be legally chargeable in *645 this action. It is true that the Court finds that the plaintiff applied a portion of the…