plying with the latter's directions to assist him | er track repairers along the railroad, it being in taking apart some rollers on one side of the room in which he worked, he was caught in some belts and rollers, which he could not see on account of the darkness of the room, and which were not protected by any guards or railing. The only lantern in the room, the foreman had at the place of the accident. The evidence on plaintiff's part tended to show that he had never been in that part of the room, and did not know of the location of machinery in that place. Held, that a verdict for plaintiff would not be disturbed on the ground that he had assumed such risk, or was guilty of contributory negligence.-Gisson v. Schwabacher, (Cal.) 34 P. 104. 23. In an action against a steamship company for personal injuries sustained by falling through the hatchway of defendant's vessel, the court properly refused to charge that the verdict must be for defendant if plaintiff knew, or could by ordinary care have learned, that it was defendant's custom to sometimes have the hatchway open and sometimes closed, when he would have occasion to descend the same in the course of his employment.-Smith v. Occidental & Oriental Steamship Co., (Cal.) 34 P. 84. 24. In an action against a steamship company for personal injuries sustained by falling through the hatchway of defendant's vessel, evidence that plaintiff had previously worked on the vessel, and had opportunity to learn the position of the hatchway, and that it was open on certain occasions, was not conclusive that he had such knowledge.-Smith v. Occidental & Oriental Steamship Co., (Cal.) 34 P. 84. the custom for such employes to ride on cars loaded with ties, and is thrown from the car, while in a standing position, by the train s denly starting without any usual signal, as the ringing of the bell or the sounding of the whe tle, and where his foreman saw him in O position before he directed the conductor to start the train, and the conductor also saw him in the same position before motioning with ha hand for the engineer to go on, it is a questie for the jury whether decedent was guilty of such contributory negligence as to prevent any recovery for his death, under Civil Code, 422.—Union Pac. Ry. Co. v. Geary, (Kan.) 34 P. 887. 29. There can be no recovery for the death of an employe caused by a fire-damp explosin resulting from an officer of the company op ing his lamp, when he was induced to do so by the statement of deceased, who had been is that spot for some hours, that there was no fre damp there.-Morgan v. Carbon Hill Coal Co., (Wash.) 34 P. 152, 772. 30. In an action against a steamship com pany for personal injuries sustained by falling through the hatchway of defendant's vessel inte the hold, it appeared that defendant neglicent ly omitted to light the passageway; that plaintif and other employes passed down a stairway to the hatchway; and that one man preceded plaintiff. The latter testified that he could so see the hatchway; that he tried to stand there but the men pressed him from behind, and be fell in; and that there was room for the me to stand if it had been lighted. His cordat while on the vessel, and the extent of his 25. In an action for injuries to an employe knowledge of the danger by reason of his pre in a mine, alleged to have resulted from negli-vious experience, did not clearly appear. Held gent blasting, and from failure to make a that the question of plaintiff's contributory neg proper examination to discover loose pieces of ligence was for the jury.-Smith v. Occidental ore after the blast, it is error to ask a witness & Oriental Steamship Co., (Cal.) 34 P. 84. if the blast was prepared and the examination made in the ways usual in that mine, when it does not appear that the injured employe knew what those ways were.-Bennett v. Tintic Iron See "Mechanics' Liens." Co., (Utah.) 34 P. 61. 26. Plaintiff was injured by an explosion in defendant's mine, while working with a pick Material Men. Meander Line. Measure of Damages. MECHANICS' LIENS. Validity of contract for erecting building. 1. Failure of the contract for erecting building to comply substantially with Code Civil Proc. §8 1183, 1184, relating to mechan ics' liens, does not render the contract void Lumber Co. v. Wooldredge, 27 P. 431, 90 Cal 578, followed.-Dunlop v. Kennedy, (Cal.) 34 P. 92. where blasting had been done shortly before by See "Boundaries," 3. fellow miners, and in an action therefor there was evidence, though conflicting, that it was not the duty of the foreman to be present when every blast was made, to see that all the char- See "Damages." ges exploded, but that it was the duty of plaintiff's fellow servants to do the blasting. The evidence also showed that sometimes a piece of powder was accidentally dropped into the debris by a workman, and that such a piece could be exploded by the blow of a pick. Held proper to charge the jury that "one of the risks which a servant takes upon himself is the negligence of his fellow servants in the same common employment, and in this case the men engaged in blasting were in law fellow servants with plaintiff," and if plaintiff was injured by their negligence, and defendant had no reason to believe such men were incompetent, or careless, 2. A contract for erecting a building, then the jury should find for defendant, unless it which provides that 25 per cent. of the sum was the duty of the foreman to superintend the to be paid shall remain unpaid until 35 days blasting, and see that all the blasts had ex-mainder be paid in partial payments equal to after completion of the building, and the re ploded.-Kelly v. Cable Co., (Mont.) 34 P. 611. 75 per cent. of the value of the work and ma terial done and furnished at the time of such payments, sufficiently complies with Code Civil 27. An employe of a street-car company who Proc. § 1184, providing that the contract price has to push a car through a doorway, by push- shall, by the terms of the contract, be made ing on the side, and who, instead of letting go payable in installments at specified times after on reaching the doorway, attempts to pass commencement of the work, and on the com through the space between the side of the door- pletion of the work, provided that at least 25 way and the car, which is only 31⁄2 inches, per cent. of the whole contract price shall be where there is nothing to prevent his seeing the made payable at least 35 days after final comdanger, is guilty of contributory negligence.pletion of the contract.-Dunlop v. Kennedy, Jennings v. Tacoma Railway & Motor Co., (Cal.) 34 P. 92. (Wash.) 34 P. 937. Contributory negligence. 28. Where decedent, engaged in repairing a railroad track, climbs on a car loaded with ties, which are to be distributed by himself and oth 3. A contract for erecting a building, and also for improvements on an adjoining lot run ning "westerly," is not avoided by the fact that the recorded memorandum of the contract er roneously uses the word "easterly" nor is the 4. The mechanic's lien statute does not re- quire that the contract for erecting a building Property subject to. 5. Civil Code, §§ 638e, 638f, providing that a Courthouse. 6. A courthouse is not exempt from the Liability of homestead. 7. A lien for materials furnished is a "me 8. One who performs labor in the erection Lien for constructing irrigating ditch. Improvements not a part of realty. 10. Under Comp. Laws, §§ 1520, 1522, For what obtained. 11. Where in an action to enforce a lien for Rights of material men-Duty of owner 12. Under Code Civil Proc. § 1184, requir- 13. All that material men can require, in 14. It does not prejudice persons furnishing 15. The owner of a building who, out of 16. The purchaser of lands whereon the ven 17. Comp. Laws, § 1520, provides that a 18. A notice of a lien for materials, stating agent of the owner.-Rowland v. Harmon, (Or.) 34 P. 357. 19. The fact that a notice of lien states $150 as the sum to be credited on the account, when a preponderance of the evidence shows that it should be $152.50, does not affect the validity of the notice, when the claimant is neither willful nor negligent in failing to give credit for the extra $2.50, and contends for the correctness of his statement in good faith. -Rowland v. Harmon, (Or.) 34 P. 357. 20. It is essential to the validity of a mechanic's lien that the notice of lien shall contain, as required by the statute, a statement of the claim, and the name of the person to whom claimant furnished material, or for whom he performed labor.-Dillon v. Hart, (Or.) 34 P. 817. 21. A notice of lien, which states that claimant had a contract with A. for furnishing lumber and material used in erecting a dwelling house on ground, describing it, belonging to B., who caused the dwelling house to be erected. and that the value of such lumber and material was a specified sum, is not sufficient to create a lien, because it fails to state the name of the person to whom the materials were furnished, or to connect the person with whom claimant had the contract with the owner of the ground and building, as required by Hill's Code, §§ 3669, 3673. 32 P. 620 affirmed.-Rankin v. Malarkey, (Or.) 34 P. 816. 22. Where materials are furnished to the head of a firm having a contract for the erection of a building, and in his statement for a lien the material man names only the individual member with whom he dealt as the contractor, in the absence of evidence that the owner was misled or injured by the failure of the subcontractor to correctly state the firm name of the contractors, such error will not invalidate the lien.-First Presbyterian Church of Hutchinson v. Santy, (Kan.) 34 P. 974. 23. Mechanic's Lien Act 1889, (Sess. Laws 1889, p. 249,) requires a person wishing to avail himself thereof to file with the county recorder a statement signed and sworn to by claimant, and, if a subcontractor, to serve a copy thereof on the owner at or before the time of filing. Held, that the filing of a subcontractor's unverified statement, of which a copy was served on the owner, and which was afterwards verified without notice to the owner, established no lien. -Rice v. Carmichael, (Colo. App.) 34 P. 1010. 24. Where work on a building is abandoned by the owners, the statement for a lien must be filed within four months after the abandonment, which, for such purpose, is equivalent to completion; and the time of such abandonment is to be determined by the actual cessation of work, and not by the secret purposes of the owners.-Chicago Lumber Co. v. Merrimack River Sav. Bank, (Kan.) 34 P. 1045. 25. An understanding between one who contracted to build a church and the majority of the trustees of the church that it should be accepted as completed when it was not so in fact is not conclusive on the question of the time of completion, as against subcontractors claiming to have filed lien statements within the statutory time. First Presbyterian Church of Hutchinson v. Santy, (Kan.) 34 P. 974. Filing lien against structures merely -Improvements on mining claims. 27. A person who has so furnished materia for a reduction mill on a mining claim camat contend that his lien attached when the mill was commenced, and before it was used in conser tion with the mine, and therefore before it be came appurtenant to the mine, as the mill is a part of the mine, and not a mere appurte nance.-Williams v. Mountaineer Gold Min. Ca. (Cal.) 34 P. 702. 28. Conceding the mill to be appurtenant to the mine, such contention cannot be sustained, for the further reason that one who has fur nished material for a structure must be held to have anticipated its future use.-Williams v. Mountaineer Gold Min. Co., (Cal.) 34 P. 702 Priority. 29. One who contracts with an irrigation company to construct its ditch has a lien on the ditch which has priority over a trust deed ere cuted by the irrigation company before the cortractor commenced work, under Laws 1800, p 24.-Garland v. Bear Lake & River Water works & Irrigation Co., (Utah,) 34 P. 368. Validity of contractor's bond-Failure to record building contract. 30. Code Civil Proc. Cal. § 1183, provide that a building contract which is not recorde: before work is commenced thereunder, wher the contract price exceeds $1,000, shall be void, and no recovery thereon can be had by either party thereto. Held, that a bond for $5.0 given by the contractor to the owner to secure the latter against claims and liens for labor on materials, and which refers to a written o tract that has not been recorded, made between the principal and obligee, is not within the meaning of the statute, and may be enforced without violating the above section. Kiessiz V. Allspaugh, 27 P. 662, 91 Cal. 234, followed Lumber Co. v. Neal, 27 P. 192, 90 Cal. 213 overruled; McFarland, J., holding that the cases are distinguishable. - Kiessig v. Allspaugh, (Cal.) 34 P. 106. Enforcement. 31. A person who has furnished material for a structure on a mining claim for a corporation which he found in possession of the mice. claiming it all, cannot enforce a lien fled against the structure instead of the whole claim. and therefore invalid, on the ground that, when he furnished the materials, the corporation had not yet acquired title to that portion of the claim on which the structure was erected, as title cannot be tried in such an action-Wiliams v. Mountaineer Gold Min. Co., (Cal.) 34 P. 702. 32. Where the complaint in an action to foreclose a mechanic's lien alleges that there was no contract between the owner and the person who erected the building, there can be no judgment on proof that there was, and it is error for the court, on finding the latter, and without an amendment, to render judgment for plaintiff to the extent of 25 per cent. of the contract price, which the owner failed to keep back, as required by the statute.-Reed v. Norton, (Cal.) 34 P. 333. 33. The fact that a bill to enforce a mechanic's lien shows that the improvement be longs to one person, and the land to others, all of whom are made parties, does not render the bill demurrable.-Post v. Miles, (N. M.) 34 P. 586; Stahlin v. Same, Id.; Mountain Electric Co. v. Same, Id. 26. Under Code Civil Proc. § 1183, providing that mechanics, material men, etc., performing 34. Code Civil Proc. § 1184, relating to me labor or furnishing material in the construction chanics' liens, requires that 25 per cent. of of any building or other structure, shall have the whole contract price shall be made payable a lien upon the property upon which they have at least 35 days after the final completion of bestowed labor or furnished materials, and that the contract. Sections 1193, 1195, authorize any person who performs labor on any mining a claimant, on establishing his lien, to recover claim has a lien upon the same, a lien for material furnished for structures on a mining claim, to be used in operating the same, filed against the structures, is invalid, as it must be filed against the whole claim. Williams v. Mountaineer Gold Min. Co., (Cal.) 34 P. 702. costs and an attorney's fee. Held, in an action by a material man to enforce his claim against the 25 per cent. of the contract price retained by the owner, that the costs and attorney's fee are chargeable against the premises where the sum so retained was not sufficient to satisfy MORTGAGES. 1. In ejectment for a mining claim there Escheat of property, see "Escheat." See, also, "Chattel Mortgages;" "Fraudulent 2. Rev. St. U. S. § 2324, provides that, on 3. An additional location certificate, filed 4. Where the owner of a claim relocates it Claims against decedent's estate, see "Execu- On homestead, heirs as parties to foreclosure, Priority, see "Mechanics' Liens," 29. Lien. 1. Where a purchaser of land verbally Payment of taxes on mortgage by mort- 2. Under Const. art. 13, § 5, declaring that Rights of assignees - Priorities of as- signees of different notes. 3. Where notes payable at different times, 5. In ejectment by mine owners against Transfer of property-Personal liability Payment. personally liable, and an execution may isme 5. In an action to foreclose a mortgage, therefor. Held, that an execution cannot issue against the grantees of the mortgagor, it ap- for any deficiency on a mortgage sale until a peared that the records showed a satisfaction judgment is entered therefor after the reta of the note described in the mortgage. Com- of the officer.-Russell v. Hank, (Utah) 34 P. plainants produced the note, with payments of 245. interest indorsed thereon after the date of the alleged satisfaction. The mortgagor alleged in his answer that the note was paid at the time satisfaction was recorded, by giving a note to be secured on other property, but by mistake the new mortgage covered the same property. The new mortgage was on record when the defendants bought the land. that the land was subject to foreclosure.-Smith Held, v. Stark, (Colo. App.) 34 P. 258. Attorney's fees. 8. A tenant in common, who has been obliged to take up a mortgage, and sues to enforce contribution thereon against his cotenant's interest, cannot, as part of the decree, be allowed attorney's fees stipulated in the mortgage in case of suit thereon for the benefit of the mortgagee, but not paid by plaintiff in taking up the mortgage.—Lang v. Cadwell, (Mont.) 34 P. 957. Action for deficiency. 9. Code Civil Proc. 726, prohibiting more than one action to recover a debt or enforce a mortgage, does not prevent a new action on a note which was secured by a mortgage to recover a deficiency left on foreclosure of the mortgage, as the amount realized on foreclosure may be treated as a payment on the note, and the action as brought to recover the balance.-Blumberg v. Birch, (Cal.) 34 P. 102. 10. A complaint to recover a deficiency after foreclosure of a mortgage securing a note, which shows the foreclosure and the fact that a deficiency resulted, states a good cause of action, whether it is based on the note, or on an indebtedness resulting from the foreclosure and deficiency.-Blumberg v. Birch, (Cal.) 34 P. 102. Personal judgment for deficiency. 11. Where, in an action to foreclose a mortgage, the personal liability of one of the defendants was alleged, it was error to strike out the portion of the decree providing for a deficiency judgment if the property mortgaged failed to sell for enough to satisfy the debt, though the complaint contained no express prayer for such relief.-Russell v. Hank, (Utah,) 34 P. 245. 12. In an action to foreclose a mortgage, in which service is made by publication only, the court has no jurisdiction to enter a personal judgment for a deficiency.-Blumberg v. Birch, (Cal.) 34 P. 102. Execution for deficiency. 13. 2 Comp. Laws, § 3460, provides that there shall be but one action for any debt secured by mortgage; and, where it appears by the return of the officer making a sale under the decree that there is a balance still due, a judgment may be entered against defendant Redemption-Sale and release of equity. 14. Defendant in a mortgage foreclosure sit made a compromise agreement with plain whereby the latter agreed to accept a part of the amount claimed if paid within 16 mth the purpose of the parties being stated to be a sale of the mortgaged premises after an the contract, and to save expenses of forec sonable time to extinguish the debt as fired by sale. The contract provided that the land be conveyed to trustees, and be by them reconveyed in case defendant paid plaintiff within 1 having the price paid to plaintiff that afte months; that defendant might sell any part by 12 and before 16 months plaintiff might s the remainder at auction; that a decree she be entered for the full amount claimed, and pre ceedings stayed until the expiration of the 18 months, at the end of which time the trustees should convey the unsold land to plaintif e might sell it under the decree, in which case the agreement fixing the amount due should void. Defendant conveyed the land to the tre tees, and then negotiated a sale to H., but e fects in the title delayed the closing of the ste until after the 16 months during which the trustees had power to convey to a purchase, and it was necessary to convey to plaintif order to give H. a good title. Plaintiff, wa defendant's consent, conveyed the land to H at the agreed price. Held, that Civil Code. { 2889, which provides that "all contracts for the forfeiture of property subject to lien, in s faction of a lien secured thereby, and a r tracts in restraint of the right of redemption from a lien, are void," had no application to such transaction.-Corcoran v. Hinkel, (Cal) P. 1031. Motion. See "Practice in Civil Cases," 2. For judgment on pleadings, see "Pleading" 40-42. For new trial, see “New Trial,” 2, 3. MUNICIPAL CORPORATIONS. See, also, "Counties:" "Irrigation;" "School and School Districts." Fixing water rates, see "Mandamus,” 5. Injunction against passage of ordinance, see "Injunction," 4. Local improvements, assessments for, see "Co stitutional Law," 24. due process of law, see "Constitutional Law," 18. power to assess property of state for, see Special laws, see "Constitutional Law,” 7, & "States and State Officers," 8. Territorial cities, limitation of indebtedness, see "Territories." Petition for formation of sanitary district. 1. The presentation of a petition to the board of county supervisors praying for the formation of a sanitary district is a sufident for the formation of such a district, as re manifestation of the desire of the petitioners quired by St. 1891, p. 223, and the petit need not contain an express statement of such a desire. Woodward v. Fruitvale Sanitary Dist., (Cal.) 34 P. 239. 2. A petition for the formation of such a district signed by 25 residents and freehold s of the proposed district, as required by St 1891, p. 223, is not vitiated by the addition of signatures of other persons not possessing the requisite qualifications. Woodward v. Fru vale Sanitary Dist., (Cal.) 34 P. 239. |