contract in full, or abandons15 the same before completion, there nevertheless is applicable to the liens of persons other than the contractor that portion of the contract price remaining after the amount of the contract price then lawfully due and actually paid is deducted from the value, ⚫ estimated as near as may be by the standard of the whole contract price, of the work already done and materials already furnished at the time of such failure or abandonment, including materials then actually delivered or on the ground which shall thereupon belong to the owner.

596. Amount of Original Contractor's Lien.16 The amount recoverable upon a lien by an original contractor is the amount which remaine

15 What Amounts to Abandonment.-Where the original contractor leaves the work without cause it is an abandonment: Golden Gate Lumber Co. v. Sahrbacher, 105 Cal. 114, 116, 38 Pac. 635.

A finding that the contractor "entirely ceased labor thereon without completing said building'' shows an abandonment within the meaning of this section: McDonald v. Hayes, 132 Cal. 490, 495, 64 Pac. 850.

16 Code of Civil Procedure, section.1193, in part: The contractor shall be entitled to recover upon a lien filed by him only such amount as may be due to him according to the terms of his contract, after deducting all claims of other parties for work done and materials furnished, as aforesaid; and in all cases where a lien shall be filed, under this chapter, for work done or materials furnished to any contractor, he shall defend any action brought thereon at his own expense;.. and in case of judgment against the

after deducting the gross amount17 (including costs and counsel fees) recovered by all lienors furnishing work or materials to such contractor, together with the expenses incurred by the owner in defending the actions in which their liens were foreclosed (except where the owner had agreed

owner or his property, upon the lien, the said owner shall be entitled to deduct from any amount due or to become due by him to the contractor the amount of such judgment and costs." New section, in effeet May 29, 1874. Stats. 1867-68, c. 448, sec. 11, in effect March 30, 1868, repealed by code, read the

same.

Code of Civil Procedure, section 1183, second seutence: "In case of a contract for the work between the 87 reputed n87 owner and his contractor, the lien shall extend to the entire contract price, and such contract shall operate as a lien in favor of all persons, except the contractor, to the extent of the whole contract price; and after all such liens are satisfied, then as a lien for any balance of the contract price in favor of the contractor." New provision, in effect May 17, 1885; amended, in effect March 15, 1887. Also, see Stats. 1850, c. 87, sec. 5.

See section 548, above, especially note 23.

Under Stats. 1855, c. 130, sec. 4, and Stats. 1856, c. 134, sec. 3, the amount of the liens of other persons than the contractor, were, when established, to be a "valid offset against the amount due" him.

17 Amount Recovered by Lienors to be Deducted.In case of a judgment in behalf of a materialman employed by an original contractor against the contracting owner and his property, the latter is entitled to deduct from any sum due such contractor the amount of such judgment: (Stats. 1868) Whittier v. Wilbur, 48 Cal. 175.

with the original contractor to pay such lienors),18 from the amount remaining due and unpaid him according to his contract.

597. Original Contractor Liable to Owner for Amount Beyond Contract Price Which He is Compelled to Pay.

If the amount recovered on foreclosure judg ments rendered against the contracting owner for personal services or materials furnished an original contractor, with costs thereon added, exceeds the amount coming to the contractor from the owner, or if the owner has settled with the contractor in full, the owner is entitled to recover back from the contractor the amount so paid in excess of the contract price.19

18 Where an original contractor gave his subeontractor an order upon the contracting owner for the amount due the subcontracter, which order the owner refused to pay, the original contractor must bear the expenses incurred by the owner in defending a foreclosure action brought by the subcontractor. The contractor cannot split his demand and impose upon the owner without his consent the duty of paying an assignee of a part of it: Clancy v. Plover, 107 Cal. 272, 275, 276, 40 Pac. 394.

But where the agreed method of payment was by orders issued by the contractor on the owner, which the owner refused to pay, the owner must himself bear the expenses of foreclosure actions brought by such lienors: Adams v. Burbank, 103 Cal. 646, 650, 651, 37 Pac. 640.

19 See Code of Civil Procedure, section 1193, latter clause: New provision, in effect May 29, 1874. Stats. 1867-68, c. 448, sec. 11, latter part, pr v'des the same.

593. Lien Likewise Enforceable When Contract Price Payable in Property.20

Notwithstanding the contract price of a valid contract with the contracting owner is payable in something other than money, the contractor may, upon breach of payment thereof [when the dam

Where, however, liens are filed by persons working under an original contractor in a sum in excess of the contract price of a valid contract, and the owner pays them without the request of the contractor, he cannot recover the excess from the contractor or his sureties: Brill v. De Turk, 130 Cal. 241, 243-245, 62 Pac. 462.

20 Code of Civil Procedure, section 1184, in part: "As to all liens, except that of the contractor, the whole contract price shall be payable in money."

"The exception in favor of the contractor, in the provision of the code above quoted, indicates, if it does not imply, that he may contract and have a lien for the value of his work payable otherwise than in money; and this is in perfect accord with section 1183, which provides that he shall have a lien for the value of the labor done and materials furnished": Baird v. Peall, 92 Cal. 235, 237, 28 Pac. 285.

"Respondent claims that section . . . . 1184, above cited, relate[s] only to cases where the contract price exceeds one thousand dollars. . . . . After carefully reading the opinions in the cases referred to, we fail to see how they can be said to sustain respondent's contention': Schmid v. Busch, 97 Cal. 184, 188, 31 Pac. 893.

The code provision above quoted cannot be interpreted to render void a contract a part of the contract price of which is payable in property, as such a provision would be unconstitutional as unreasonably restraining the right of contract: Stimson Mill Co. v. Braun, 136 Cal. 122, 89 Am. St. Rep. 116, 68 Pac. 481.

ages are liquidated and certain, if not in every case],21 and every lienor claiming under him may in every case,22 enforce each, respectively, his lien to the same extent as though the contract price was payable in money.

21 Where an original contractor contracted to do some painting at a fixed money price, a specified portion of which (one hundred and fifty dollars) was to be paid in land, upon a breach of the agreement to pay one hundred and fifty dollars in land, the damages being liquidated and certain, precisely the same as in case of the breach of an agreement to pay money, the contractor may enforce his lien for the balance due him.

Had the plaintiff [original contractor] contracted to do the work in consideration that defendant should convey to him certain land or personal property, without fixing the money price or value of the work, perhaps he would not have been entitled to a lien": Baird v. Peall, 92 Cal. 235, 237, 28 Pae. 285.

22 Other Lienor in Every Case.-"The laborer [employed by an original contractor], in our opinion, may enforce a lien, notwithstanding the contract price was to be paid in something other than money, it not having in fact been paid when the claim of lien was filed and the action commenced': Schmid v. Busch, 97 Ca'. 184, 188, 189, 31 Pac. 893.