
    HARMON v. SAN FRANCISCO & S. R. R. CO.
    
    No. 12,017;
    October 4, 1889.
    22 Pac. 407.
    Mechanics’ Liens.—The Fact That a Claim of Lien, Filed by a Materialman, included more than was due him, if the error was without fraud, will not defeat his right to recover.
    APPEAL from Superior Court, Marin County.
    F. H. Boalt and H. A. Powell for appellant; Lloyd & Wood and Hepburn Wilkins for respondent.
    
      
      For subsequent opinion in bank, see 86 Cal. 617, 25 Pac. 124.
    
   FOX, J.

This case is like that of Gordon Hardware Co. v. Same Defendant, ante, p. 140, 22 Pac. 406 (No. 12,030, just decided), except that at the hearing, on the'offer in evidence of the claim of lien, which was substantially like that in the other case, open to all the same objections, and objected to on the same grounds, the court overruled the objections, and admitted the claim in evidence; but afterward, upon plaintiff’s resting his case, the court, on motion of defendant, struck out the said claim .from the evidence, to which plaintiff excepted, and thereupon the nonsuit followed, as before. This was only another way of reaching the same result, and for the same reasons. In his proofs in this case the plaintiff showed what part of the material furnished by him had not gone into and become a part of the actual structure, which would reduce his claim by some $6,000; and, if there had been no other ground of objection, the bare fact that he had filed his lien for too much, if it were shown that it was done without fraud, would not have defeated his right to recover. But this did not cure the defects in the claim of lien, to which attention is called in the opinion filed in said No. 12,030, and on the authority of that case the judgment and order appealed from in this case are affirmed.

We concur: Works, J.; Paterson, J.  