L. A.Plumbing Corporation appeals from a judgment by which it was denied any recovery from West Coast Bond and Mortgage Company but which ordered that corporation to pay in fixed and ratable amounts the sum of $1,764.71 to Whiting-Mead Company and five other laborers *462 and materialmen.' Two actions were consolidated for trial. The first, filed September 4, 1942, in which the Whiting-Mead Company appeared as plaintiff, was entitled “COMPLAINT IN EQUITY TO DETERMINE VALIDITY AND PRIORITY OF LIEN CLAIMS AND TO REQUIRE THE PRO RATA PAYMENT OF FUNDS ON ACCOUNT OF VALID AND ENFORCEABLE LIEN CLAIMS.” This complaint joined as defendants, the West Coast Bond and Mortgage Company (which for convenience will be called, in this recital, “the Mortgage Company”), this appellant, and various corporations and individuals who had furnished material and labor upon a building constructed for one David Dirks, and who had filed liens for their claims. The second suit was filed originally in the Municipal Court of Los Angeles on November 13, 1942, and on January 7, 1943, was transferred to the Superior Court of Los Angeles County. In this action the appellant sought to subject the money held by the mortgage company, $1,764.71, to its claim against Dirks, which had been established in a municipal court action, for the sum of $175.25, and for which a writ of execution had issued. The mortgage company, in a garnishee process, had refused to honor the writ of execution on the theory that the money which it held did not belong to Dirks and had been sustained in that position in supplemental proceedings (Code Civ. Proc., §§714-723). Dirks had borrowed from the mortgage company the sum of $12,750 for the purpose of constructing a building upon an unimproved lot which he owned in the city of Los Angeles. As security for -this indebtedness he furnished the mortgage company with a first trust deed against the property in accordance with the terms of a written agreement, dated August 18, 1941, which provided that the money “available for construction purposes, shall be paid to David Dirks upon orders signed by David Dirks which state that the proceeds are requested and received for the express purpose of paying bills and claims for labor performed and/or materials used in the construction or completion of buildings on said real property. * ’ The funds, according to the agreement, were to be advanced under a “Six-Payment Plan” and upon completion of the building “any balance,” in the words of the agreement, “shall be paid to David Dirks when there is deposited with you [i.e. the Mortgage Company] his affidavit stating that all claims for labor and/or materials used in such construction have been paid or ordered to be paid out of the funds in this *463 escrow.” By the terms of this agreement “The owner hereby authorizes the lender, at any time at its option, either in its own or the owner’s name, to do any and all things necessary or expedient in the opinion of the lender to secure the erection and completion of the improvements in accordance with the plans and specifications, to accept the improvements as completed or substantially completed, to execute, verify and file notices of completion and other notices provided for or required by State or the construction Contracts and to make or withhold payment for labor and materials used in the construction, and to do any and every act or thing appertaining to or arising out of the construction or completion of the improvements or any contract therefor, using any and all the funds hereinbefore mentioned herein. ’ ’

Notice of completion of the building was recorded in January, 1942. Meantime, Dirks had conveyed the property to a new owner and has never furnished the mortgage company with an affidavit stating that all claims for labor and materials have been paid or ordered paid out of the funds in escrow. He could not truthfully make such an affidavit in view of the fact that, according to the findings herein, based upon a stipulation entered into at the trial, he owed the lien claimants, to whom a judgment was given in this ease, the aggregate sum of $4,761.48. The mortgage company still holds unexpended from the proceeds of Dirks’ loan the sum of $1,764.71, and the question raised by this appeal is whether the trial court was justified in finding that this money constituted a trust fund to be administered solely for the benefit of the lien claimants, thus eliminating any participation by this appellant.

The mortgage company has not claimed any right to apply the balance in its hands toward payment of the Dirks trust deed; neither has Dirks made any claim personally for any part of the money,—not having filed the required affidavit he cannot do so; nor has he requested, so far as the record shows, that any portion of the fund be paid to this appellant, to anyone who furnished labor or materials for the building, or to anyone else. He does not claim to own this balance or any part of it; and if, in fact, it does not belong to him, it is, of course, immune from garnishment by his general creditor, L. A. Plumbing Corporation.

The appellant, in its brief, states that “The complaint of *464 the Whiting Co. was framed, apparently, to bring it within the doctrine originally announced by our Supreme Court in the ease of Smith v. Anglo-California Trust Co., 205 Cal. 496 [ 271 P. 898 ].” And since he finds in that opinion a statement that “the right, if there be such right, to have the sum of $4,090 applied pro tanto in payment of the mechanics’ lien claims cannot be enforced by virtue of any declared trust or one to be implied from the terms and conditions of the loan agreement,” he argues that in the instant case no trust was created or implied by the agreement between Dirks and the mortgage company. That this does not follow appears from a comparison of the entirely different systems by which the proceeds of the loans in the two cases were required to be paid out. In the Smith case, supra, at page 502, the court stated: “there is nothing in the nature of the agreement, or in its terms, that made it obligatory upon the securities company to see that the money advanced thereunder was, in fact, applied to payments for labor and materials furnished in the construction work,” and not being able to afford the lien claimants relief as beneficiaries of a trust, express or implied, proceeded to extend relief by applying the doctrine of equitable estoppel. No such difficulty confronted the court in this case, for the language of the agreement here restricted payments by the mortgage company to bills presented for labor and material, with the proviso that any balance remaining unexpended should be paid to Dirks upon his filing the affidavit which would show all bills paid.

It was natural and right that the court should determine that under these conditions a trust existed. The theory under which this trust was recognized and made operative is clearly shown by the respondent in his brief, and is based directly upon a well considered memorandum opinion, entitled “Notice of Decision and Informal Comment,” which was filed in the case by the learned trial judge. We agree generally in the following statement in the respondent’s brief:

We have considered the claim of the appellant that the superior court lacked jurisdiction to try this ease as a suit in equity because the amount involved is less than $2,000 and also because the claimants had a right to sue at law for the payment of their bills. Our approval of the decision of the trial court, holding that a trust existed, indicates that in our opinion this jurisdictional point is not well taken. In his memorandum the trial judge made this comment: “As to the unpaid suppliers of labor and materials, it is obvious that the duty of the trustee to pay to them the remaining trust funds does not depend on the filing of liens or the bringing of actions to foreclose the liens. As counsel for the Los Angeles Plumbing Corporation aptly pointed out, the filing of liens has to do only with the claimant’s interest in the property to which the labor and materials contributed. The liens mean nothing as to the fund in question, and as liens, establish no rights to that fund. The unpaid laborers and materialmen come into an interest in that fund because it is now the duty of the trustee to pay that money to persons who helped build the building and who have not been paid for their part in it. Liens and actions to foreclose them are irrelevant. ’ ’

The judgment is affirmed.

Wood (Parker), J., concurred.