Olmstead

I dissent. The amendment of section 1187 of the Code of Civil Procedure was evidently intended for the benefit of the material-man, and extended the time within which he may file his notice of lien when work has been suspended for thirty days. As the section now stands, he is not bound to wait until the building is completed before filing his notice. But in my judgment, he may do so. The statute should not be so construed as to compel the owner to submit to a forced sale of an uncompleted building because a faith *86 less contractor has failed to comply with his contract and left the building unfinished. I think, therefore, that it is not enough to show that the contractor has failed to carry out his contract, hut that it must be shown that the oivner, who alone is affected by the filing of the lieu, has himself abandoned the work on the building. If he has not abandoned the completion of the building, but is only delayed in its completion by no act of his own, but by the failure of the contractor to comply with his contract, he should not, for that reason, be subjected to the filing and enforcement of the lien until the building has been completed. This construction of the…

Action to foreclose the lien of a material-man.

The facts of the case, as shown by the findings, are in substance as follows:—

The defendant, Olmstead, owned a lot of land in the city of Los Angeles, and on the sixteenth day of November, 1886, entered into a contract in writing with the defendants, H. N. and D. F. Sheldon, whereby they agreed to construct for him on his said lot a two-story frame dwelling-house under the supervision and to the satisfaction of John C. Pelton, an architect. The contract price was three thousand six hundred dollars, and was made payable as follows: Twelve hundred dollars when the frame was up, the building inclosed, and the roof shingled; twelve hundred dollars when brown mortar was on, windows glazed, and outside finish complete; and the balance when the whole work was certified to have been completed accord *82 ing to the said plans, specifications, conditions, and stipulations to the satisfaction of the said architect. The contract was filed for record in the recorder’s office of the county on the third day of January, 1887, but no specifications were filed therewith.

On or about the twentieth day of November, 1886, the contractors entered into…

I concur with Justice Works in his dissenting opinion. It presents the just and proper construction of the statute.

Hearing in Bank denied.