
    [S. F. No. 1415.
    Department Two.
    May 26, 1899.]
    G. C. SWEENEY et al., Respondents, v. JOHANNA K. MEYER et al., Appellants.
    Mechanics’ Liens—Premature Payments under Contract—Notice.— Under section 1184 of the Code of Civil Procedure, payments made for the contractor before they are due are invalid for the purpose of diminishing, defeating, or discharging any lien in favor of mechanics and materialmen; and no notice is required to render the owner liable for liens to the extent of such premature payments.
    Id.—Claim for Extra Work—Pleading—Proof.—A claim for extra work cannot be enforced as a lien, unless there are special allegations in the complaint and corresponding proof as to what constitutes the extra work. A mere general averment and proof of the amount or value of extra work is insufficient.
    
      Id.—Allowance op Attorney’s Fees—Discretion.—The discretion of the trial judge in fixing the amount of attorney’s fees and apportioning the amount between the respective claimants of liens will not be disturbed upon appeal where there is no such abuse of discretion as to warrant interference therewith.
    APPEAL from a judgment of the Superior Court of the City and County of San Erancisco and from an order denying a new trial. Ed. W. Belcher, Judge.
    The facts are stated in the opinion of the court.
    Frank M. Parcells, for Appellants.
    Alexander G. Eells, H. K. Eells, J. N. Young, and H. W. Hutton, for Respondents.
   THE COURT.

This is a consolidated action for the foreclosure of certain liens of mechanics and materialmen.

Judgment passed for the plaintiffs, and the owners, Johanna and Antone Meyer, appeal from that judgment and from the order denying a new trial.

1. The contract specified the times during the progress of the work when the partial payments were to he made. The court found that the third and fourth of these payments were made prematurely and in advance of the terms of the contract, and prior to the time when due, and were, therefore, invalid as payments for the purpose of diminishing or discharging the liens or any of the liens involved in the action.

By the mechanics’ lien law "no payment made prior to the time when the same is due, under the terms and conditions of the contract, shall be valid for the purpose of defeating, diminishing or discharging any lien in favor of any person except the contractor, but as to such liens such payment shall be deemed as if not made, and shall be applicable to such liens.” (Code of Civil Procedure, sec. 1184.) By the same section it is also provided that a written notice may be served upon the owner by one who has performed labor or furnished material, and that upon service of such notice "it shall be the duty of the owner to and he shall withhold from his contractor, or from any other person acting under such owmer .... all money due or that may become due to such contractor .... or sufficient of such money to answer suclr claim; .... and all money paid thereafter by the owner to the contractor, while such notice is in force, shall, for the purposes of all liens of all persons except that of the contractor, be deemed a payment prior to the time the same was due within the meaning of and subject to the provisions of this section.”

Under this law appellants contend that an owner becomes liable for payments prematurely made to his contractor only in the event that thereafter, and before the time when such payments are due, he is served with the requisite notice. To this it must be answered that, while such might well have been the - law, the law is not so written. The provision as to notice is entirely separate and distinct from the provision invalidating payments prematurely made. The proceedings under the notice are in the nature of a garnishment, whereby there is impounded specific moneys due, or thereafter to become due, to the contractor. The provision of the law as to premature payments is not made dependent upon the giving or the failure to give notice. The provision is but a forthright declaration that, if a contractor shall make a payment prior to the time when it is due, that payment shall be deemed not to have been made, so far as affects all lien claimants other than the contractor himself. It is a provision like the provision requiring recordation. -It is an arbitrary demand of the statute, for the failure to comply with which the owner must suffer. If it be said that it is a harsh requirement, this may be conceded, but at the same time it should be noticed that the owner need not suffer from it if he complies with the law.

- 2. It is claimed that the court erred in refusing to strike out all of plaintiffs’ evidence relating to the extra work, the value of which the court found to be seven hundred dollars. It is also claimed that the evidence is insufficient to support the findings and judgment as to said extra work.

Four of the plaintiffs did extra work of the aggregate value of one hundred and ninety-four dollars and ninety-two cents, and the court finds upon sufficient evidence that this work was done at the instance of defendants,- and that the several sums were justly due and were of the reasonable value charged therefor. The evidence relating to these matters we think was clearly admissible. It is also found by the court that the plans and, specifications were materially departed from, “and a large amount of extra work .... outside that mentioned in said contract .... was done upon said structure at the order of said owner of said property, the amount and value of which departures, extra and different work was and is the sum of seven hundred dollars, no part of which has ever been paid, and all of which, together with the sum of six hundred and seventy-five dollars, the last and final payment due under said contract, is applicable to the payment of the liens of the several plaintiffs.” This sum of seven hundred dollars is added to the third and fourth payments, maldng applicable to the lien two thousand three hundred and seventy-five dollars. In another finding it appears that this extra work was done by Alsup, and there is evidence tending to support the finding. The evidence and the findings show that certain four of the plaintiffs did extra work of the value of one hundred and ninety-four dollars and ninety-two cents, and defendants concede that they are entitled to liens therefor, but it is claimed that there is no evidence and no finding and no sufficient pleadings to justify the decision of the court that the owners are chargeable with seven hundred dollars due Alsup for extra work. Hone of the complaints charge that Alsup did any extra work, and no extra work is mentioned in the pleadings except that above stated amounting to one hundred and ninety-four dollars and ninety-two cents. In the course of the trial, however, there was no evidence tending to show that Alsup performed extra labor and furnished extra supplies Avorth seven hundred or eight hundred dollars. By leave of court plaintiffs amended two of the complaints so as to show the whole amount due from defendants on account of said contract to be the sum of two thousand three hundred and seventy-five dollars. This amendment, we suppose, was made to let in the seven hundred dollars extra work done by Alsup, but the complaints were not amended so as to allege that he did any extra work.

After the court had stricken out all of defendants’ evidence as to payments made by them to sundry persons for material, counsel for defendants said: “The plaintiffs, aside from the extras which they have separately specified and declared upon, have not set forth any itemized statement or bill of those extras, which they claim are of the value of seven hundred dollars..... If the plaintiffs will submit an itemized statement of the extras, we may be able to show that they have been paid. Until this statement is forthcoming, I move that all the evidence introduced thus far touching the extra and additional work not specifically declared upon be stricken out.” The court denied the motion, to which ruling defendants excepted. We think defendants were entitled to know—first by appropriate and sufficient allegations of the complaint, and second by evidence in support thereof—what constituted this extra work. These facts do not appear either in the pleadings or by sufficient evidence. Without a showing of some kind by which specifications of this extra work could be brought to defendants’ knowledge it was not possible for them to intelligently meet the claim. As the matter stands the court increased the fund -subjected to the liens by seven hundred dollars for extra work without any allegations in the complaints in any way referring to this extra work, and without evidence in detail as to what it was and the value thereof, except that witnesses stated generally that the extra work done by Alsup was of the value of seven hundred dollars. The state of the pleadings and evidence considered, we think it was error to make this sum applicable to the liens as was done by the decree.

3. We are asked to modify the allowance made for attorneys’ fees as excessive.

Heath filed a separate complaint; the court gave him judgment for two hundred and ninety-three dollars and twenty-three cents and one hundred dollars attorneys’ fees. De Lair also filed a separate complaint, and was given judgment for one hundred and seven dollars and sixty-four cents and one hundred dollars attorney’s fees. The other eight plaintiffs filed a consolidated or joint complaint, the claims aggregating six hundred and sixtv-three dollars and two cents. The court allowed one hundred dollars attorneys’ fees in these eight claims to be apportioned among the eight claimants ratably according to their several judgments. Heath and De Lair each had separate attorneys and the eight others had still other attorneys.

Section 1195 of the Code of Civil Procedure provides that the trial court “must allow, as a part oí the costs, .... reasonable attorneys’ fees in the superior and supreme courts, such costs and attorneys’ fees to be allowed to each lien claimant whose lien is established, whether he be plaintiff or defendant, or whether they all join in one action, or separate actions are consolidated.” The fixing of attorneys’ fees is a duty devolved upon the trial court by the statute: San Joaquin Lumber Co. v. Welton, 115 Cal. 1; and conceding, but not deciding, that this court may from what appears in the record modify the judgment of the trial court in such matter, we do not think there is ground for doing so in this case. The transcript discloses a trial of considerable length and some complexity; the pleadings are necessarily somewhat extended in this class of cases. The trial judge was in better position than we are to determine a just apportionment of the attorneys’ fees, and, while it may appear that De Lair received a greater proportionate allowance than did the eight who consolidated their claims, we cannot say that there was such abuse of discretion as to warrant interference here. Under all the circumstances of the trial the total of attorneys’ fees allowed seems not to be excessive.

The judgment should be modified so as to show that the liability of defendants applicable to plaintiffs’ liens is limited to the sum of sixteen hundred and seventy-five dollars.

The judgment is ordered thus modified, and the order appealed from is affirmed.

Hearing in Bank denied.

Beatty, C. J., dissented from the order denying a hearing in Bank.  