Subdivision 4. Void Contracts. 547. Contract When Nonconformable to Statute in Certain Cases Void. (1) If any original contract in which the contract price exceeds one thousand dollars is not in writing and not duly subscribed, 15 or architect's office is insufficient: Greig v. Riordan, 99 Cal. 316, 320, 321, 33 Pac. 913. Also that a two-story building, 51 by 25, was to be erected conformable, etc. It does not tell of what the building was to be constructed: Butterworth v. Levy, 104 Cal. 506, 508, 38 Pac. 897. The statement in Dunlop v. Kennedy, 102 Cal. 443,. 445, 36 Pac. 765, was likewise insufficient. A statement that a frame building is to be constructed is insufficient. "While the law requires no description in detail of the general character of the work to be done, still it requires more than is here found. This statement is too general. To say that the building is to be a stone building or a brick building, or a frame building entirely fails in essentials to give the notice to the public which the law contemplates. By consulting the memorandum of contract it would be impossible to say whether the building is to be a diminutive cottage, or a large public caravansary, or whether the contract price is at all in proportion to the character of the building to be erected": Blyth v. Torre (Cal.), 38 Pac. 639, 639B640A (a rehearing was granted, but no opinion was filed.) 66 15 Code of Civil Procedure, section 1183, third sentence: All such contracts shall be in writing. and shall be subscribed. . . . and 87n the said contract, or a memorandum thereof n87 {, . shall, before the work is commenced, be filed; otherwise, they shall be wholly void, and no recovery shall be had thereon by either party thereto." New .... (2) if, on account of any conspiracy or agreement in which a contracting party participates, the contract price set forth in the contract filed is less than the real price,16 or provision in effect May 17, 1885; amended, in effect March 15, 1887. This provision is "highly penal in its character, a violation of its mandates subjecting the owner to liability for debts which he never agreed to pay, an! for which he may receive no benefit." (See section 548, below.) "Such statutes should not receive a construction unduly favoring the imposition of a penalty or forfeiture. And in the case of a statute which deals with the constitutional right of an owner of property to make contracts relating to its use and enjoyment, the restriction of the right can go only to the form of the contract, and cannot be extende by construction beyond what is expressed": Snell v. Bradbury, Cal., June 20, 1903. Historical.-Stats. 1862, c. 297, sec. 2, contained a similar provision in regard to contracts in which the contract price exceeded two hundred dollars. 16 Code of Civil Procedure, section 1202, third sentence: "If the owner and his contractor shall directly or indirectly conspire to or agree that the written contract filed shall appear to show the contract price to be less than it really is, and it shall accordingly so show, then such contract shall be wholly void, and no recovery shall be had thereon by either party thereto." New provision in effect March 18, 1885. In California Iron Construction Co. v. Bradbury, Cal., Jan. 16, 1903, where the contract price of a building contract was stated to be eight thousand and fifty-two dollars in the written contract, and the evidence showed that the price originally agreed upon had been eight thousand one hundred and fifty-two dollars, but that the contractor had agreed to buy an old house on the premises for one hundred dollars, which sum had accordingly been deducted from the price orig inally agreed upon, the court held that the contract is not rendered invalid by reason of stating an erroneous contract price. The court supported this conclusion by the statement that "the transfer of the house-which was an executed transaction-was antecedent to the contract as executed, and formed no part of it." On February 16, 1903, the court denied a petition for a rehearing. Beatty, C. J., dissented from the order denying the rehearing, saying in part: "The contract for the erection of the building, as reduced to writing and recorded, stated the contract price at eight thousand and fifty-two dollars. But the court found that the real price agreed to be paid for the improvement was eight thousand one hundred and fifty-two dollars. If the real consideration agreed to be paid was one hundred dollars more than the consideration states in the written and recorded contract, then it seems to me that the conclusion of the trial court was correct; that the contract under section 1183 of the Code of Civil Procedure was void as to the lienors, and that they were entitled to have a judgment for the full amount of their claims made a lien upon the property of the appellant [contractingowner]. The difference between eight thousand and fifty-two dollars and eight thousand one hundred and fifty-two dollars is trifling, it is true, but the principle governing the case is just the same as of the difference between the actual price and the stated price was relatively much greater. The reason why the contract price was stated at one hundred dollars less in the written contract than as actually agreed was that the contractor was to take the old building at a valuation of one hundred dollars, and it was agreed that the price as stated in the written contract would be reduced in that amount. If the property owner agrees with the contractor that the proper cost of a proposed improvement is five thousand dollars, and because the contractor is already indebted to him in the sum of two thousand dollars, proposes, and the contractor agrees, that in consideration of the cancellation of that debt, the price in the written contract would be stated at three thousand dollars, no one Liens-54 (3) if any such contract, or a sufficient memorandum thereof, is not duly filed17 [then as to all lien claimants whose liens attach as of a time prior to the filing thereof]18 such contract is void.19 could doubt that the recording of the contract in that form would be a violation of the spirit and a transgression of the policy of the mechanic's lien law. No distinction can be drawn between the supposed case and this case, except upon the principle of de minimis, and that principle I think we have no right to apply." 17 See code provision quoted in note 15. Actual notice of the existence of the contract is not equivalent to filing, as this is not a question of notice. "The express provision of the statute is, that if the contract is not filed, it shall be void. This being so, there is in fact no contract of which the subcontractor is bound to take notice, and his knowledge that a contract was attempted to be made, but was not, cannot affect his rights': Kellogg v. Howes, 81 Cal. 170, 179, 22 Pac. 509. 18 As to Lien Claimants with Prior Liens Only.— This is perhaps a limitation of doubtful validity. It is sustained in Giant Powder Co. v. San Diego Flume Co., 88 Cal. 20, 22, 25 Pac. 976; 97 Cal. 263, 265, 32 Pac. 172, where the court held that though the contract was not filed before the commencement of work, but was at a subsequent date filed, there existed from the latter date a valid contract. In Willamette Steam Mills Co. v. Kremer, 94 Cal. 205, 207, 208, 29 Pac. 633, and Willamette etc. Co. v. Los Angeles College Co., 94 Cal. 229, 236, 29 Pac. 629, the court, however, held that when the original contract was not filed before the commencement of work, although it was subsequently filed, it was 'wholly void' for all purposes, and cannot be the basis of a recovery by the contractor against the owner, nor can it be looked to for the purpose of determining the amount for which 548. Nature of Recovery When Contract Void.20 Upon a void contract no recovery can be had by any party thereto, nor except where there is a substantial compliance21 with its terms, in quasi contract.22 The amount recoverable by the contracting owner is liable, nor the time of any payment. 19 Contract Void.-This section contains an exhaustive enumeration of the circumstances rendering the contract void. So it is not void by reason of not containing a description of the property upon which the building is to be erected, as the statute does not require that: Yancy v. Morton, 94 Cal. 558, 561, 29 Pac. 1111. 20 See Code of Civil Procedure, section 1183, and section 1202, as quoted under section 547, notes 15 and 16. 21 Substantial Performance Prerequisite.-The would-be original contractor cannot recover unless he has completed the contract on his part, or its completion is in some way waived or excused: Marchant v. Hayes, 117 Cal. 669, 671, 48 Pac. 840. He A void contract may be used in evidence as the test of substantial performance. As between the original contractor and the contracting owner, "the contract must remain, not the basis of his recovery, but the measure and test of his right to recover. must still show a substantial compliance with its terms, to warrant any recovery at all, and the measure of his recovery, even under implied assumpsit, must be limited, as to him, by the contract price': Laidlaw v. Marye, 133 Cal. 170, 176, 65 Pac. 391. Rebman v. San Gabriel Land etc. Co., 95 Cal. 390, 395, 396, 30 Pac. 564, so far as at variance with this conclusion, is overruled in this case. 22 Recovery in Quasi Contract Permissible.-"Nor does the statute expressly, or by necessary implication, |