2. SAME-DAMAGES FOR ENFORCED IDLENESS-WORK RENDERED NECESSARY BY CONTRACTOR'S FAULT.

Under the statute the subcontractor is not entitled to a lien upon the premises, and action against the owner, for damages and expense incurred through idleness enforced, or on account of work made necessary, by the default or negligence of the principal contractor.

3. SAME-EXTRA LABOR NECESSARY TO THE ERECTION.

The subcontractor is entitled to a lien for work rendered necessary by the contractor's failure to distribute the cut stone for a building in convenient order and places about the building, for labor in removing the cut stone furnished for the second story in order to reach that required for the first, and in transferring such stone from the front upon one street to that upon another, where it belonged; such labor being necessary in the erection of the structure, and not properly extra work wholly outside of the principal contract.

Armstrong, as subcontractor, brought a mechanic's lien suit against Cook as original contractor, and also against Tabor as owner of the property upon which the labor was performed and materials furnished. Armstrong claimed certain damages for enforced idleness and extra expense in consequence; also for work on the building caused by the delay, default, and negligence of Cook, as well as compensation for the labor performed in the immediate work of placing the stone in position. Cook made default, and a personal judgment was entered against him; it being expressly stipulated that such judgment should not in any manner prejudice or affect the rights of either Tabor or Armstrong in the action. Upon trial a decree was entered against Tabor, allowing the lien for the sum of $922.68; but the damages claimed on account of the so-called extra work and expenses above mentioned were disallowed. From the decree and judgment Tabor took his appeal to the supreme court. To review the same, because of the rejection of his claims for the consequential damages aforesaid, Armstrong sued out a writ of error.

By stipulation both causes in the supreme court were submitted together, and were to be taken as though Armstrong had filed cross-errors in the Tabor appeal. The objections raised in both are therefore considered and determined by one opinion. The complaint, among other things, alleges "that the sum [an amount sufficient to cover plaintiff's entire demand] became due from defendant Tabor to defendant Cook for work and materials furnished and performed on said building on and after April 15, A. D. 1880;" said April 15th being the date of Armstrong's notice to Tabor of his intention to claim a subcontractor's lien, Armstrong himself doing no work after that date.

Section 1657 of the General Laws, being section 6 of the mechanic's lien law, in force at the time the transactions out of which the original action arose took place, reads as follows: "Every subcontractor, journeyman, laborer, or other person performing work or labor, or furnishing materials, shall, under the provisions of this act, have a valid lien upon the building or superstructure or other property upon which a lien may be claimed, as hereinbefore provided, and upon which such work or labor was performed, or for which such materials were furnished; and if any money be due, or is to become due, under the contract, from the owner or owners to such contractor, upon being served with a copy of the statement as provided in section two (2) of this act, by a subcontractor, journeyman, or laborer, as aforesaid, [the] owner or owners may withhold out of any moneys due or to become due under the contract a sufficient amount to satisfy the lien claimed by such subcontractor, journeyman, or laborer, or other person performing work or labor, or furnishing materials, until the validity thereof be established by proper legal proceedings, if the same be contested; and, if so established, the amount thereof shall be a valid set-off, to that extent, in favor of such owner or owners, and against the contractor. And, after such copy of the statement shall have been properly served upon such owner or owners in case of a failure to comply with the provisions of this section, then each subcontractor, journeyman, or laborer, or party furnishing materials, may sue and recover from

such owner or owners the amount of any damages he may have sustained by reason of such failure.

*

*

Sullivan & May and J. M. Ellis, for plaintiff in error and appellee. L. C. Rockwell, for appellant and defendant in error.

HELM, J. Two questions are presented by the records and arguments in these cases: First, is the expression "due or to become due under the contract," used in section 1657 of the General Laws, confined to moneys due or to become due for labor or materials furnished previous to the service of the statutory notice by the subcontractor upon the owner, or does the subcontractor's lien notice entitle him to be paid out of moneys that may become due the contractor for labor performed or materials furnished by other employes or material-men subsequent to the date of such notice, but under the same principal contract? And, second, is the subcontractor entitled to his lien upon the premises, and action against the owner for damages and expense incurrred through idleness enforced, or on account of work made necessary, by the default or negligence of the principal contractor? These questions will be answered in the order of statement.

The statute treats the original contract as an entirety. It gives the subcontractor or laborer a lien if money is due and unpaid to the contractor at the time of serving his notice upon the owner, or if thereafter money becomes due under the contract. Having received the requisite notice, if the owner fails to withhold money thereafter becoming due under the principal contract. his statutory liability to the subcontractor or laborer attaches. Upon this liability there is no language in the law that expressly imposes a limitation. The statute itself does not say that the money spoken of as "to become due" must be payments that have not yet matured for the work previously performed or materials previously furnished by the party claiming a lien. We cannot conclude that it was the intention of the legislature to thus limit the language used. That body would hardly have left so important a qualification wholly unexpressed. For us to recognize such a limitation would be to interpolate into the statute something we cannot, by any fair intendment, find therein.

It is urged that this view of the law might produce gross injustice; that it allows one man the benefit of another's labor or property. The evident answer to this objection is that the entire completed building is necessary to the adequate protection, under the law, of all connected with its erection. The various subcontractors, material-men, and laborers all act under the same general contract, though not privies thereto, the only contract to which the owner is a party. They each and all contribute to the structure, which is the common product of their materials and labor. The lumber furnished by one person cannot be segregated from that furnished by another; nor can the interest of a material-man be protected without the work of the laborer; while, of course, the combined labor of all the workmen furnishes the foundation for each individual workman's security. Thus the subcontractors, laborers, and material-men who contribute to build one part of the structure would be receiving the benefit of each other's contributions, even if, according to counsel's contention, the materials and labor furnished by those completing another part could be and were excluded from the statutory lien and right of action. The truth is that each subcontractor, laborer, and materialman who invokes the statute must of necessity reap a benefit from the aid given the enterprise by other sub-contractors, material-men, and laborers. A moment's careful reflection will show how futile would be a legislative attempt to confine each man's lien to the result of his own labor, or to his own materials, or to the particular part of the structure to the erection of which his labor or materials contributed, and at the same time accomplish the beneficent purposes for which the law is framed.

We now turn to the second question above stated. As already suggested, there was no privity of contract between Armstrong and Tabor. Whatever right Armstrong may have against Tabor or his property must be derived solely from the statute; but the statute contains a provision expressly limiting the liability of the owner and his property to those cases where the lien is claimed for labor actually performed upon the "building or superstructure," and materials actually furnished therefor. The language used is so plain that it needs no judicial construction. But provisions in other states, similar in this respect, have been passed upon; and, so far as we are aware, it has been universally held that the demand "must be due as a consequence of actual performance." Minor v. Hoyt, 4 Hill, 193; Houghton v. Blake, 5 Cal. 240; Taggard v. Buckmore, 42 Me. 77. See, also, Barnard v. McKenzie, 4 Colo. 251. In view of this conclusion we cannot indorse the proposition advanced, that the amount for which the subcontractor is entitled to his statutory lien and action is always to be measured by the extent of his valid claim against the principal contractor. Where, by the default or neglect of the principal contractor, the subcontractor is obliged to remain idle, and suffers loss in consequence, he may undoubtedly recover of the contractor; but such damages could constitute no valid claim, under the statute, against the owner. Therefore Tabor had a right to inquire into the validity of Armstrong's demand, and the evidence concerning the latter's alleged claims of $500 and $75, respectively, was properly excluded. The $50 item is abandoned by counsel in argument, and hence we do not consider it.

There remains but a single question, viz., did the court err in rejecting evidence of the $260 demand? This amount was claimed by Armstrong for labor which he was obliged to perform in consequence of Cook's failure to distribute the cut stone in the most convenient order and places about the building. The labor of removing cut stone furnished for the second story in order to reach that required for the first, and the work of transferring such stone from the Larimer-street front to the front on Sixteenth street, where it belonged, became necessary in the erection of the structure. It cannot properly be termed extra work, wholly outside of the principal contract. It had to be done before Armstrong could go on with his work of setting the stone into the respective walls. Had Cook himself employed some day laborers to do this work, they would, in our judgment, have been as much entitled to a lien as is the man who does any other work preliminary or incidental but essential to and directly connected with the actual laying of the foundation walls, or erection of the superstructure. And we can discover no good reason for applying a different rule to Armstrong merely because he happens to be a subcontractor instead of laborer. If, therefore, Armstrong could have succeeded, through the introduction of proper evidence, in establishing a valid claim against Cook for the so-called extra work now under consideration, we are of the opinion that he was entitled to have it included in his recovery against Tabor. For error in the view taken upon this subject, and consequent rulings by the district court, its judgment must be reversed.

None of the foregoing conclusions conflict with anything decided in Jensen v. Brown, 2 Colo. 694, or McIntire v. Barnes, 4 Colo. 205, cited by counsel. Reversed.

PEOPLE . RAY. (No. 11,065.)

(Supreme Court of California. September 17, 1886.)

WKIT AND PROCESS-SERVICE OF SUMMONS BY PUBLICATION-AFFIDAVIT-ACTIONS CONCERNING STATE LANDS.

In an action to annul a certificate of purchase of state lands for non-payment of principal or interest, the service of sunimons by publication must be made in the manner provided by the Code of Civil Procedure for service by publication. Such a service, therefore, without any affidavit for publication of the summons, or order therefor, is insufficient.

In bank. Appeal from superior court, county of Santa Cruz.

Action to foreclose defendant's interest in certain state lands by virtue of a certificate of purchase, and to annul such certificate on the ground that defendant was delinquent in the payment of part of the principal and interest. No personal service of summons was made on the defendant, but an alleged summons by publication was made, by publication in the county newspaper for the statutory time, and affidavit of service by such publication. There was, however, no affidavit for service by publication, nor any order of court therefor: Judgment by default against defendant, who moved to open the default on the ground that there had been no service of summons. The court, upon hearing of the motion, set aside the default. Plaintiff appeals.

W. F. Jeter, for plaintiff and appellant. J. M. Wood, for defendant and respondent.

BY THE COURT. On the authority of People v. Applegarth, 64 Cal. 229, and People v. Mullan, 65 Cal. 396, S. C. 4 Pac. Rep. 348, order affirmed.

(2 Cal. Unrep. 717)

MCAVOY . BOTHWELL. (No. 11,744.)
(Supreme Court of California. September 27, 1886.)

APPEAL DISMISSAL-FAILURE TO FILE TRANSCRIPT.

Appeal will be dismissed, in pursuance of rules 3 and 4 of the California supreme court, for failure to file transcript, on clerk's certificate of that fact.

In bank. Appeal from superior court, county of Alameda.

Judgment in the lower court having been rendered for plaintiff, defendant gave notice of appeal. On the expiration of the statutory time for filing the transcript, plaintiff moved to dismiss for failure to file the transcript within the proper time, under rules 3 and 4 of the supreme court, and presented the certificate of the lower court stating the fact that such transcript had not been filed as required by such rules.

W. Whitmore, for appellant, Bothwell. B. McFadden, for respondent, McAvoy.

BY THE COURT. Application, on clerk's certificate, to dismiss an appeal for failure to file the transcript in time. The application is granted.

(71 Cal. 273)

LEVINS v. ROVEGNO and others. (No. 9,055.)

(Supreme Court of California. November 22, 1886.)

1. TRIAL BY COURT-FINDING-CONCLUSION OF LAW, WHAT IS.

Whether a finding is an ultimate fact or a conclusion of law depends upon whether it is reached by natural reasoning, or by the application of the artificial rules of law, and where plaintiff's mother owned property which, by proper steps, became the homestead of plaintiff's mother and father, and thereafter the mother died, and the father married again, and conveyed the homestead, his wife joining in the conveyance under the name of the first wife, a finding of the court that this conveyance passed the title, as against the plaintiff, is a conclusion of law.

2. HOMESTEAD RIGHTS OF WIFE AND CHILDREN-DESCENT-ST. CAL. 1860, PAGE 311. In this case, under the amended homestead act of 1860, (Cal. St. 1860, p. 311,) the plaintiff, being an only child, became the owner, by descent, of one-half of the 'See post. 343.

v.12p.no.6-11.

homestead property, upon the death of her mother; section 4 of that act modifying the joint tenancy of the husband and wife created by section 1, so that, upon the death of either, one-half of the estate descends to the survivor, and one-half to the children of the deceased.

Commissioners' decision.

In bank. Appeal from superior court, city and county of San Francisco. S. F. Rhodes & Barstow, for appellant. Flournoy & Whoon and Jos. Rothschild, for respondents.

SEARLS, C. Action of ejectment to recover possession of the undivided one-half of a portion of 50-vara lot No. 469, in the city and county of San Francisco. The cause was tried by the court, written findings filed, and judgment entered for defendants, from which judgment, and from an order denying a motion for a new trial, plaintiff appeals.

George W. Manchester and Mary Ann Manchester were husband and wife. On the first day of August, 1857, the land in question was conveyed to Mary Ann Manchester, by deed of grant, bargain, and sale, and thereupon Manchester and wife entered into possession, and occupied the same as a homestead, and continued to reside in a dwelling-house thereon, and to occupy the premises, except as hereinafter stated, until the third day of April, 1862, when the said Mary Ann departed this life. On the twenty-seventh day of April, 1861, George W. Manchester filed in the recorder's office of the city and county of San Francisco his declaration of homestead, executed and acknowledged in due form, as required by the provisions of the act of April 28, 1860, describing the premises in controversy, and whereby the homestead continued to exist as such under said act. The value thereof never exceeded $5,000. After the death of the said Mary Ann Manchester, George W. Manchester married a second wife, and on the third day of April, 1868, joined with her in an abandonment and conveyance of the homestead property, in due form, to Isaac M. Ward, under whom the defendants claim the property in question by sundry mesne conveyances, all of which were duly recorded. The second wife executed the deed and declaration of abandonment in the name of Mary Ann Manchester, the first wife, which was not her true name. Plaintiff is the only child of George W. and Mary Ann Manchester, or either of them, who survived the said Mary Ann Manchester, and was under the age of 22 years when this action was brought. A small portion of the lot was sold by Manchester and his first wife, which, however, cannot affect the

case.

The court found, as a conclusion of law, "that the defendants are the owners in fee-simple, and entitled to the possession of the same, and that plaintiff is not entitled to any part of the same, or to any damage for the withholding thereof."

We are asked to determine whether the foregoing is an ultimate fact, to be found by the court as such, or a conclusion of law to be drawn from the facts as found. The line of demarcation between what are questions of fact and conclusions of law is not one easy to be drawn in all cases. It is quite easy to say that the ultimate facts are but the logical conclusions deduced from certain primary facts evidentiary in their character, and that conclusions of law are those presumptions or legal deductions which, the facts being given, are drawn without further evidence. This does not, however, quite meet the difficulty. We deduce the ultimate fact from certain probative facts by a process of natural reasoning. We draw the inference or conclusion of law, by a process of artificial reasoning; but this last process is often in such exact accord with natural reason that the distinction is scarcely appreciable. If ultimate facts were found only from direct evidence to the very fact, the distinction between them and conclusions of law would be easily drawn; but, as they are to a great extent presumed from the existence of other facts, they are conclusions reached by argument, by reason,-are results deduced from