
    [No. 4,020.]
    JOSEPH P. MOORE, AUSTIN D. MOORE and JOHN GAWNE v. J. P. JACKSON, W. J. L. MOULTON, H. L. MILLER, JOSEPH BADGER, STEPHEN BADGER, J. R. S. JACKSON, R. S. ELLSWORTH, .and ALBERT WASHBURN.
    Lien of Mechanics and Matebiad Men.—If a person enters into the possession of a house and lot with the consent of the owner, and makes repairs on the house by the permission of the owner, under a parol agreement with the owner to pay for such repairs, and to purchase the property, the mechanics and material men who furnish the , materials and do the work, can enforce a lien on the premises for their ' labor and materials, even if the person who makes the repairs does not effect a purchase.
    Idbh.—In such case the person who makes the repairs is the agent of the owner, and the owner’s estate is hound by the lien.
    Appeal from the District Court, Fifth Judicial District, County of San Joaquin.
    In June, 1872, defendant J. P. Jackson was the owner of a house and lot in the city of Stockton. One Charles Whale informed Jackson that defendant Moulton proposed to purchase the house and lot, and to repair the house and live in it; and Jackson answered that he could purchase it and do as he pleased with it, and they would not differ as to the price. Whale reported this conversation to Moulton, who thereupon entered into possession of the premises, and commenced making repairs thereon. Moulton paid no rent to Jackson, but remained in possession of the premises. Jackson saw the building on the 13th of October, 1872, after all the repairs had been completed, except a half a day’s painting, but before any liens had been filed. The repairs, except the half day’s painting, were finished September 18, 1872. Moulton employed Whale to repair the house, and, in making repairs, lumber and other materials were purchased from the plaintiffs of the value of five hundred and seventy-eight dollars and eighty-eight cents. The repairs were made during July, August and September, 1872. Jackson did not give a notice that he would not be responsible for the repairs. The lien was filed October 31, 1872. Moulton did not purchase the property, and failed to pay the mechanics and material men, and they filed liens in the Recorder’s office, under the Mechanics’ Lien Law, and this action was commenced to enforce the plaintiffs’ lien. The defendants, other than Jackson and Moulton, were lien-holders, who had furnished materials to, or performed work for Moulton, in the work of repairs. The Court below enforced the liens, and the defendant Jackson appealed.
    
      J. H. Budd, for Appellant.
    The facts as established by the evidence, show that the defendant, J. P. Jackson, owned a lot in Stockton with a dwelling-house thereon, and that such dwelling-house was altered and repaired without his knowledge, instance or request, and without any authority or direction whatever from him. Yet the Court found, as a conclusion of law from such facts, that the property of the appellant was subject to a lien, claimed to have arisen by reason of such alterations and repairs. This conclusion, of law of the Court below is erroneous.. ,
    
      E. S. Pillsbury and W. L. Dudley, for the Respondents.
    The premises were subject to the liens, under the fourth section of the Act of March, 1868, (Statutes, 1867-8, p. 589,) which provides that, unless the owner of the land upon which any building or improvement is constructed shall, within three days after he shall have obtained knowledge of the construction, alteration or repair, or the intended construction, alteration or repair, give notice that he will not be responsible for the- same, by posting a notice in writing in some conspicuous place upon said land or upon the building or other improvement situated thereon. J. P. Jackson had knowledge of the repairs and alteration of the building, October 13, 1872, The last work was performed upon the building October 30, 1872. Jackson failed to post any notice upon the premises, that he would not be responsible for the alteration and repairs. If he wished to escape the liability resulting from section four, it was his duty to post a written notice on the premises, as soon as it came to his knowledge that repairs were being made or had'been made thereon. (Fuguay v. Stickney, 41 Cal. 583.)
   By the Court, McKinstry, J.:

The findings show that defendant Moulton entered into possession of the premises with the consent of defendant Jackson, and that the repairs upon the house were authorized by Jackson. The fact that Jackson expected, and Moulton agreed, that the repairs should be paid for by the latter, and that he would purchase the property, did not change the relation of these persons as to third parties. Jackson received the benefit of the repairs, which he authorized Moulton to have made; and as to the material men and laborers, the latter was the agent of the former, and the estate of the former should be bound by the lien, independent of the peculiar language of the statute.

Judgment and order affirmed.

Neither Mr. Justice Rhodes nor Mr. Justice Niles expressed an opinion.  