(DOWNLOAD) "Whiting-Mead Co. v. West Coast Bond and Mortgage Co." by District Court of Appeal of California ~ eBook PDF Kindle ePub Free
eBook details
- Title: Whiting-Mead Co. v. West Coast Bond and Mortgage Co.
- Author : District Court of Appeal of California
- Release Date : January 23, 1944
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 79 KB
Description
[66 CalApp2d Page 461] 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 [66 CalApp2d Page 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 [66 CalApp2d Page 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.""
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