Civil No. 1771. Second Appellate District. November 13, 1915. NATIONAL LUMBER COMPANY (a Corporation), Plaintiff and Appellant, v. JAMES KENNEDY et al., Defendants and Respondents.

[1] MECHANIC'S LIEN-FORECLOSURE-TIME OF COMPLETION OF BUILDING FINDING SUPPORTED BY EVIDENCE.-In this action for the foreclosure of an alleged lien for materials furnished in the construction of a building, wherein the invalidity of the lien for failure to file within the required time is urged as a defense to the action, it is held that the finding that the building was completed more than ninety days before the filing of the lien, is supported by the evidence.

[2] ID.-ID.-ACTS AND CONDUCT OF OWNER-ABSENCE OF ESTOPPEL-FINDING UPON CONFLICTING EVIDENCE. It is also held that the finding against the contention of the plaintiff that the acts and conduct of the owner estopped him from basing any such defense to the validity of the lien, is conclusive, by reason of the conflicting nature of the evidence on the question.

[3] ID. LIMIT OF TIME FOR FILING LIENS-CONSTRUCTION of Code. -Under the provisions of section 1187 of the Code of Civil Procedure all claims of liens must be filed within ninety days after the completion of the building, regardless of whether or not a notice of cessation of labor or of completion of the building is filed as required by such section.

Appeal from the Superior Court of San Bernardino CountyFrank F. Oster, Judge.

For Appellant-R. L. Horton.

For Respondents-E. H. Jolliffe.

Action to foreclose an alleged lien for materials sold by plaintiff to defendant Miller for use in the construction by him, as tractor, of a building for defendant Kennedy.

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Miller made default. Kennedy answered, and upon trial judgment was entered for said defendant. The appeal is by plaintiff

from an order overruling its motion for a new trial.

No record was made of the contract, which was for a sum exceeding $1,000.

Two questions are presented: First, was the lien filed within the time required after the completion of the building, as provided in section 1187, Code of Civil Procedure? If not, did the acts and conduct of Kennedy as owner of the building estop him from urging such ground as a defense to the action?

The court found that the building was fully completed on October 15, 1909, but that no notice of its completion was ever at any time filed with the county recorder; that plaintiff's claim and notice of lien was not filed until March 15, 1910, which was 151 days after the completion of the building; that Kennedy did not, between November 3rd and November 15th, 1909, as alleged in the complaint, or at any time, state to plaintiff that said building was not complete according to the plans and specifications; nor is it true that plaintiff delayed filing its claim of lien because of any statements or representations made by Kennedy.

As we understand appellant's brief, it attacks all of these findings, except that as to defendant's failure to file a notice of the completion of the building.

[1] That the building was fully complete and occupied on October 15, 1909, is conclusively shown by the evidence. The only reason suggested for claiming otherwise is the fact that a skylight put in by the contractor proved defective and later, sometime in January, 1910, the defendant's tenant, being authorized so to do, employed another workman who installed a skylight in place of the one originally put in under the terms of the contract by Miller, the cost of which substituted skylight was, some time in March, paid for by Kennedy.

[2] Appellant, basing its contention upon the case of Hubbard v. Lee, 6 Cal. App. 602, insists that the acts and conduct of Kennedy estop him from basing any defense to the validity of the lien on account of its not being filed within time. In support of this theory plaintiff offered testimony to the effect that, in response to a letter requesting him so to do, Kennedy, sometime between November 3rd and November 15th, called at its office and in a conversation with its agents concerning the bill for materials furnished to Miller, and wherein the filing of a lien being mentioned, he asked them not to file any lien on the property, that the building was not yet completed, and that Miller would pay the bill. With reference to this conversation, one of plaintiff's witnesses, who at the time represented it, testified as follows: Q. "And you didn't file your lien because you expected I. S. Miller to take care of the amount coming to you? A. Yes, sir. Q. That is the reason you did not file your lien? A. Yes, sir. Q. Didn't Mr. Kennedy tell you that I. S. Miller had the money to settle these claims and would settle them, and for you not to file any lien? A. Yes, sir. Q. And on that account you didn't file any lien. Now, isn't that the exact reason? A. Yes." In addition to the general effect of plaintiff's evidence being weakened by this testimony, the defendant Kennedy denies that he ever said the building was not completed, but, on the contrary, stated to plaintiff that the building was completed, and that I. S. Miller had the money to pay their bill and told them to go and see him. Conceding that plaintiff's testimony, if believed by the court, might have constituted an estoppel against defendant, nevertheless there was a sharp conflict between the evidence on behalf of plaintiff and that given by defendant, as to which the determination of the court thereon must be deemed final. In the Hubbard case, as here, the owner neglected not only to record the contract, but also to file for record the notice of actual completion of the work as required by the statute, and it was sought to prove that not only the owner, but the architect, repeatedly stated and represented to the materialman and lienor that the buildings were not completed and that he had not accepted them and would not until certain other work was done, and that plaintiff, relying thereon, had delayed filing his notice of lien; to all of which the court sustained objections, and it was held to be error. The facts in the case at bar easily distinguish it from the Hubbard case.

[3] Appellant next insists that, notwithstanding the expiration of more than 90 days, to-wit: 151 days, following the completion of the building, it nevertheless was entitled to file its notice of lien

But

by reason of the provisions of section 1187, Code of Civil Procedure, to the effect that the owner may, within ten days after completion of any contract, or within forty days after cessation from labor thereon, file for record in the office of the county recorder of the county where the property is situated, a notice setting forth the date when the same was completed, or on which cessation from labor occurred. The section further provides that "in case such notice be not so filed, then the said owner and all persons deraigning title from or claiming any interest through him, shall be estopped in any proceedings for the foreclosure of any lien provided in this chapter from maintaining any defense therein based on the ground that said lien was not filed within the time provided in this chapter"; followed by this proviso: "That all claims of lien must be filed within ninety days after the completion of any building, improvement, or structure." In support of its contention, appellant cites the case of Robinson v. Mitchel, 159 Cal. 581 But there the court, with reference to this latter clause, say: "This would seem to fix a time limit within which all liens must be filed regardless of whether the owner has filed his notice of completion or not, this question it is not necessary here to resolve." purpose of the provision was to give to persons interested therein notice of the completion of the work, in order that they might in due time file their claims of lien. Filing the notice of completion is not mandatory, but failure to file it extends the time for filing claims of lien for a period of ninety days after the actual completion of the work. The legislature deemed such period ample time for otherwise obtaining information as to the time of completion. The provision that "all claims of lien must be filed within ninety days after the completion of any building”, could serve no purpose other than to terminate the time within which the claim of lien might be filed. Such is the plain import of the language used. As found by the court, the building was completed about October 15, 1909. In the absence of the filing of notice of its completion, plaintiff had until about the middle of January within which to file its lien, which, as stated, was not filed until March 15th thereafter. It appears from the record that plaintiff's agents passed the building daily and from October 15th knew that it was occupied and had every appearance of being completed. In our opinion, the findings of the court attacked are fully sustained by the evidence.

Clearly the

Since the plaintiff was not entitled in any event to enforce its claim of lien, the alleged errors due to rulings upon the admission and rejection of testimony could in no event have been prejudicial to the rights of plaintiff.

The order appealed from is affirmed.

We concur:

CONREY, P. J.

JAMES, J.

SHAW, J.

Civil No. 1774. Second Appellate District. November 13, 1915. FRED A. POLLOK, Plaintiff and Appellant, v. EVENING HERALD PUBLISHING COMPANY (a Corporation), Defendant and Respondent.

[1] LIBEL-PUBLICATION CONCERNING THEATER "MANAGER"-ACTION BY LESSEE-PLEADING INSUFFICIENT COMPLAINT.-A complaint in an action for libel brought by the lessee and manager of a theater against the publisher of a newspaper for the publication of an article concerning the relations of a certain person with the chorus girls employed at the theater, and which erroneously stated that such person was the manager of the theater, but which made no reference to the plaintiff, fails to state a cause of action for general damages, as the article is not libelous per se, and in the absence of an averment of special damages, no recovery can be had thereon.

[2] ID.-LANGUAGE NOT LIBELOUS PER SE-INNUENDO.-Where the language used is not libelous per se no innuendo or other allegation can make it defamatory.

[3] ID.-ID.-SPECIAL DAMAGE. In order to maintain an action upon words which are not actionable per se the plaintiff must allege and prove special damage.

Appeal from the Superior Court of Los Angeles CountyCharles Wellborn, Judge.

For Appellant-Jesse A. Gyger, Wesley H. Beach.
For Respondent-Denis & Loewenthal.

Action for libel. Plaintiff prosecutes this appeal from a judgment rendered in favor of defendant upon an order of court sustaining the latter's demurrer, both general and special, interposed to the third amended complaint.

It appears from the complaint that on October 21, 1912, plaintiff became the lessee and manager of a place of amusement in the city of Los Angeles, known as the Princess Theater; that at that time defendant was a corporation engaged in the publication of a newspaper of general circulation, known as the Los Angeles Evening Herald; that on November 14, 1912, defendant published in the regular issue of said newspaper an article as follows:

"THEATER MANAGER ACCUSED IN COURT. Girl Says George E. Ryan Forced Her to Accept His Attentions.

"May Thomas, whose stage name is Ladene Earl, who several days ago swore to an affidavit charging Guy Eddie, city prosecuting attorney, with forcing his attentions upon her, appeared in Judge Wilbur's court this morning as prosecuting witness against George E. Ryan, manager of the Princess Theater.

"According to the testimony of Miss Thomas, Ryan contributed to her delinquency. She stated that she was employed by Ryan as a chorus girl at the Princess and that two days after she went to work he told her that she would be discharged unless she accepted his attentions. She also stated that he promised her a raise in salary provided she would look with favor upon his ad

vances.

"According to Deputy District Attorney H. S. G. McCartney, Ryan has made a business of forcing his attentions upon girls working in the chorus. He avers that when Ryan's trial is called he will produce at least six girls who have complained to him of Ryan's treatment."

By way of innuendo, it is then alleged that by the publication of said article defendant intended to and did charge, and by the readers of said paper was understood as charging, that Ryan was the manager of said theater at the time of the publication of the article, to-wit: November 14, 1912, and that Ryan was and had been for some time, as such manager, in the employ of plaintiff who had allowed him as his agent to employ chorus girls in said theater, and that plaintiff had allowed said Ryan to act in an indecent, outrageous and criminal manner in the course of the performance of his duties as plaintiff's manager, and that plaintiff was a person of low character and allowed his business to be operated in a low and criminal manner. It is further alleged that plaintiff had never employed Ryan in any capacity, and that at no time subsequent to said October 21, 1912, when plaintiff acquired the Princess Theater, had Ryan been manager thereof; that said publication, as understood by the general public and by defendant intended to be understood, exposed plaintiff to hatred, contempt and ridicule by imputing to him a low and base character similar to that of an owner of a brothel; "that by reason of the publication aforesaid plaintiff was thereby injured in his theatrical business to his damage in the sum of $15,000."

[1] It must be conceded that as to plaintiff, to whom the article made no reference, the language thereof is not actionable per se. Recognizing this fact, plaintiff seeks by way of innuendo to show that by the article defendant intended, and was understood to intend and mean, to charge him in effect with being an accomplice of Ryan in the commission of the misdeeds imputed to the latter. From no angle, in our opinion, is the language used susceptible of such meaning or application. As said by Lord Kenyon in a very early case, "the injury is much too remote to be the foundation of an action". (Ashley v. Harrison, 1 Esp. 48.) "If the words before the innuendo do not sound in slander no meaning produced by the innuendo will make the action maintainable, for it is not the nature of an innuendo to beget an action." (Grand v. Dreyfus, 122 Cal. 58.) While it may serve to point a meaning to precedent matter, it can never be resorted to for the purpose of establishing a new charge. At most, the article erroneously describes Ryan's calling as manager of the Princess Theater. Quoting from Odgers on Libel and Slander, 5th ed., p. 134, it is said: [2] "Where the words can bear but one meaning, and that is obviously not defamatory, then no innuendo or other allegation on the pleadings can make the words defamatory. . . . No parol evidence is admissible to explain the meaning of ordinary English words, in the absence of any evidence to show that in the case before the court the words do not bear their usual signification." Moreover, while it is alleged that the article was published for the purpose of and did damage plaintiff and injure him in his business and calling, the article itself makes it apparent that no general damage could have been sustained. This for the reason that, as stated, the language used was not libelous per se, the alleged injury suffered being due solely to the extrinsic circumstances set forth by way of innuendo. [3] It appears to be the rule that "in order to maintain an action upon words which are not libelous . . per se, the