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District Court of Appeal, Fourth District, California.

Cejay PARSONS, Plaintiff and Appellant, v. BRISTOL DEVELOPMENT COMPANY, a corporation, James A. Freeman et al., Defendants and Respondents.

Civ. 7391.

Decided: February 02, 1965

Felix H. McGinnis, Torrance, for appellant. Launer, Chaffee & Hanna and Daniel L. Stack, Fullerton, for respondent Bristol Development Co. Miller, Nisson, Kogler & Wenke, santa Ana, for respondent James A. Freeman.

This is an appeal by plaintiff from judgment for defendants in an action brought to recover for services rendered and to foreclose a mechanic's lien.

Plaintiff is a licensed architect, defendant, Bristol Development Company, a California corporation with four stockholders only, all attorneys, and defendant Freeman, a contractor and builder.

Freeman was the owner of certain real property. Prior to October 1, 1960, he entered into a written agreement with Bristol Development Company (hereinafter referred to as Bristol), by the terms of which he agreed to transfer this real property to Bristol. In return, Bristol was to improve the property with a multiple-story office building and pay to Freeman an agreed consideration. On or about October 1, 1960, Freeman conveyed the property to Bristol by grant deeds recorded on November 4, 1960. At all times thereafter Bristol was the holder of title subject only to claim of ownership asserted by Freeman through institution of legal action against Bristol and the recordation of notice of lis pendens on May 23, 1961.

On December 30, 1960, Parsons and Bristol entered into a written agreement whereby Parsons was to perform certain architectural services relating to said real property for a consideration outlined in the contract. According to this outline, the services to be performed by Parsons were divided into Phase 1 and Phase 2. Phase 1 related primarily to the preparation of preliminary plans and specifications and Phase 2 to the final plans and specifications. The agreement provided that Pozzo Construction Company should erect the building.

In order to enable Parsons to carry on or to complete his architectural services Bristol had a physical survey of the real property made, including the driving of survey stakes on the property and a soil test involving the boring of test holes.

On January 20, 1961, Parsons completed performance of Phase 1 of his contract with Bristol, for which he was paid $600.00.

On or about February 7, 1961, Pozzo Construction Company furnished Bristol with an estimate of $954,066.00 as the cost of construction, not including the architect's fee. Following receipt of this estimate, Bristol decided to go forward with the scheme of improvement and obtained what is characterized in the testimony, by one of the four stockholders of Bristol as a firm loan commitment of $1,020,850.00, based upon the estimate. On March 14, 1961, Bristol gave Parsons written instructions to proceed with Phase 2 of his contract and paid him $9,000.00, agreeing to pay the further sum of $3,000.00 within 60 days. This latter amount was eventually paid, making a total sum paid to Parsons by Bristol of $12,600.00.

The work actually performed by Parsons was completed about the middle of August 1961 and was admittedly satisfactory. He did not complete all of the work called for in the contract because following the filing of the suit and lis pendens by Freeman, Bristol directed him to cease.

Appellant Parsons enumerates eight findings of the trial court which he maintains are not supported by the evidence. He also claims error in that the trial court denied his motion to amend his complaint to conform to proof.

The evidence relating to the facts is not in essential conflict. Our analysis of the problem, however, leads us to conclude that interpretation of the writing itself constitutes the gist of the controversy. In this area, we are not bound by findings of the trial court to the same extent that an appellate court is bound where a factual issue is the only issue under review. (Meyer v. State Board of Equalization, 42 Cal.2d 376, 267 P.2d 257.)

There is no qualifying testimony concerning the adoption of the written contract. Neither party denies its validity or due execution or questions its binding qualities. They differ only as to its interpretation, which is a matter of law and even where extrinsic evidence has been introduced the interpretation given to it by the trial court is not binding on appeal unless this interpretation depends primarily upon findings based upon the extrinsic evidence. Such is not the case here. It is therefore the duty of the appellate court to make the final determination in accordance with the applicable princibles of law. (Meyer v. State Board of Equalization, supra.)

The area of dispute lies in the interpretation of the several related paragraphs following:

‘2 (c) The parties hereto understand and agree that a condition precedent to any duty or obligation on the part of the Owner to commence, continue or complete Phase 2 or to pay to Architect any fee therefor, shall be the obtaining of economically satisfactory financing arrangements which will enable Owner, in its sole judgment, to construct the project at a cost which in the absolute decision of the Owner shall be economically feasible. In the event, however, that Owner decides to undertake Phase, 2, it is understood and agreed that Owner will retain Architect for the purpose of performing the services described in Paragraph 2(b) of this Agreement for and in consideration of the payment by Owner of the fee described in Paragraph 3(b) of this Agreement.

‘3 (a) Owner agrees to pay Architect for the services to be performed in connection with Phase 1 a fee of Five Hundred ($500.00) Dollars, payable upon completion of said work. On notification in writing to Architect by Owner to commence the services to be performed in connection with Phase 2, Architect shall credit this sum against the fee to be paid in connection with the services by Architect in connection with Phase 2.

‘(b) Owner agrees to pay Architect for the services to be performed in connection with Phase 2 a sum equal to Six (6%) Per Cent of the Cost of Construction as defined in Paragraph 5 of this Agreement, payable as provided in Paragraph 4 hereof.

‘4. Payment of Fees. Payments to the Architect on account of his fee for services in connection with Phase 2 shall be made as follows:

‘(a) Upon notification in writing that Architect is to proceed with Phase 2, a sum equal to Twenty-Five (25%) Per Cent of the total fee for the work to be performed in connection with Phase 2 computed upon a reasonable estimated cost. [Emphasis added.]

‘(b) Upon completion of final working plans, specification and engineering, or authorized commencement of construction, whichever is later, a sum equal to Seventy Five (75%) Per Cent of the fee for services in Phase 2, less all previous payments made on account of fee; provided, however, that this payment shall be made only from construction loan funds. [Emphasis added.]

‘(c) The balance of the fee shall be paid in equal monthly payments commencing with the first day of the month following the payments as set forth in Paragraph 4(b); provided, however, that Ten (10%) Per Cent of the fee based upon the reasonable estimated cost of construction shall be withheld until thirty (30) days after the Notice of Completion of the project has been filed.

‘(d) If any work designed or specified by the Architect is abandoned of [sic] suspended in whole or in part, the Architect is to be paid forthwith to the extent that his services have been rendered under the preceding terms of this paragraph. Should such abandonment or suspension occur before the Architect has completed any particular phase of the work which entitled him to a partial payment as aforesaid, the Architect's fee shall be prorated based upon the percentage of the work completed under that particular phase and shall be payable forthwith.

‘5. Definition of Cost of Construction. The cost of construction, as herein referred to, means the actual cost of construction to the Owner as finally paid to Pozzo Construction Co., exclusive of tenants' improvements, paid for by the tenant, but such cost shall not include any Architect's fees.

‘When labor or material is furnished by the Owner below its market cost the cost of the work shall be computed upon such market cost.’

Appellant states in his opening brief:

‘It can hardly be contended that the recitals contained in said subparagraph (c) of Paragraph 2 were not wholly satisfied.

‘The only problem of interpretation which presents itself is in respect to the language contained in said subparagraph (b) of Paragraph 4 of the contract which provides that the fee payment shall be made from construction loan funds as that is read in respect to the provisions contained in subparagraph (d) of that same paragraph which, in substance, provides that in the event of abandonment or suspension in whole or in part of the work project, the Architect's fee for his services in respect thereto shall be payable forthwith.

‘In that connection it is without dispute that the services rendered by Parsons for which claim is made were services under Phase 2 and it cannot be disputed that the work designed and specified by Parsons as said Architect, as the result of said work performed under said Phase 2, was abandoned and suspended in its entirety. As the result, under the strict language of said sub-paragraph (d) standing alone, Parsons' fee for said services became payable forthwith.

‘Under said circumstances it cannot be denied that the obligation to pay came into existence and the only question which remains is whether or not under the circumstances, the satisfaction of that obligation, under the contract, is conditioned upon the existence of construction loan funds.

‘Paragraph 4 of the contract must be analyzed to answer that question as a matter of contract interpretation.

‘Sub-paragraph (a) provides for the initial payment of 25% of the estimated fee. The payment of this portion of the fee is not conditioned upon the existence of construction loan funds by the terms of this sub-paragraph.

‘Sub-paragraph (b) provides for an additional payment which, when added to the 25% previously paid, will make the total payment equal to 75% of the fee. This sub-paragraph provides ‘that this payment shall be made only from construction loan funds.’

‘Sub-paragraph (c) provides for the payment of the balance of the fee in equal monthly payments although the number of months over which the payments are to be made is not specified. These payments are not conditioned upon the existence of construction loan funds by the terms of this sub-paragraph.

‘Sub-paragraph (d) provides that in the event the work is abandoned or suspended in whole or in part the fee is to be paid forwith for all services rendered. This payment is not conditioned upon the existence of construction loan funds by the terms of this sub-paragraph.

‘In summary, payments under four separate circumstances are provided for by separate sub-paragraphs. Only one such payment is specified as payable from construction loan funds and that is not the payment in issue.

‘The sub-paragraphs (a), (c) and (d) do not contain any provision which condition the payments provided for upon the existence of construction loan funds and as to the payment under sub-paragraph (a), Bristol itself did not consider it was so conditioned as evidence by its payment of that portion of the fee.

‘Further, the express language of sub-paragraph (b) is critical. The portion thereof which refers to loan funds reads ‘that this payment shall be made only from construction loan funds.’ Not any other payment, only this payment, i. e., that provided for by said sub-paragraph. That payment was but a partial payment for a portion of the services to be rendered under Phase 2 of the contract which payment was to [be] made under circumstances when construction was proceeding.

‘The payment in issue is not ‘this payment’ as that language is used in said sub-paragraph (b), but is a payment which became due by the language of sub-paragraph (d) by reason of the abandonment of the work. By the language of sub-paragraph (d) the payments to be made thereunder are to be ‘payable forthwith.”

With this analysis by appellant we are in substantial agreement. But there remains for analysis paragraph 5, appearing above, which defines cost of construction under Paragraph 3(b). This analysis we shall make and discuss later on in this opinion.

In its brief Bristol predicates much of its emphasis and argument upon oral testimony which, though in the record, can as a matter of law receive only limited consideration as an aid in interpreting the contract. It is true the wording of the contract is ambiguous. The provisions taken as a whole are not clear nor do they lend themselves to a reasonable and unstrained interpretation without the aid of some clarifying oral testimony. This being so we must look primarily to the wording and provisions of the writing itself, secondarily to the surrounding circumstances to determine what the parties intended. Necessary, extrinsic evidence can be received and considered to explain an ambiguity or uncertainty but not to show that the parties meant something different from what they actually wrote. (Sweeny v. Earl C. Anthony, Inc., 128 Cal.App.2d 232, 275 P.2d 56.)

Appellant also states in his opening brief:

‘It is submitted that the contract in question which was prepared by the four attorneys who constitute the sole stockholders of Bristol is clear, is without ambiguity, and that its interpretation is a question of law.’

No supporting reference to the record appears for the statement that the contract was prepared by the four attorneys who constitute the sole stockholders of Bristol. It is admitted that it was prepared in their office with the help of Parsons. The record is clear that four attorneys do constitute the sole stockholders of Bristol and this being so it could hardly be argued with reason that the contract should be interpreted more strongly against appellant.

Refering back now to paragraph 2(c) of the contract, reproduced above, it would seem to follow as a conclusion of law from the undisputed evidence that the condition precedent to Phase 2 had come to pass. This condition was that of Bristol obtaining ‘economically satisfactory financing arrangements which will enable Owner (Bristol) in its sole judgment, to construct the project at a cost which in the absolute decision of the Owner shall be economically feasible. Bristol ordered Parsons to proceed with Phase 2 and paid him $12,000.00 which was the first payment called for upon Bristol's decision to undertake Phase 2. The fact that later a subsequent condition, that of the Freeman lawsuit and lis pendens, came about could not in legal effect neutralize the happening of the specified condition precedent. Mr. Loveridge, one of the four stockholders of Bristol, testified that Bristol did obtain a firm commitment on financing. Bristol then decided to undertake Phase 2 of the program and so notified appellant Parsons, in writing, who thereupon proceeded with the work required of him under the contract, * * * for and in consideration of the payment by Owner of the fee described in Paragraph 3(b) of this Agreement.’

From a review of Paragraph 3(b) set forth above we find that, as to Phase 2, Bristol was to pay Parsons a sum equal to 6% of the cost of construction. Cost of construction is defined in Paragraph 5 to mean, ‘the actual cost of construction to the Owner as finally paid to Pozzo Construction Co.’ excluding ‘any of Architect's fees.’ The following paragraph, Paragraph 4, with its sub-paragraphs (a) and (b) then goes on to detail the schedule according to which payments are to be made.

The provisions of Paragraph 4(a) clearly entitle Parsons to Twenty-five (25%) per cent of the total fee for work to be performed in connection with Phase 2 computed upon a reasonable estimated cost. No ameliorating or escape conditions appear in Paragraph 4(a). Parsons was actually paid $12,000.00 for this work.

Paragraph 4(b), however, does carry limiting provisions which are that the final Seventy-five (75%) per cent payment is to be made only from construction loan funds and then only ‘upon completion of final working plans, specification and engineering or authorized commencement of construction, whichever is later.’

Regardless of how nearly complete the final working plans, specification and engineering were, ‘authorized commencement of construction’ never did occur and there never came into being any construction loan funds. Therefore, since the controlling condition precedent necessary to the making of this payment never did take place such payment, under the provisions of the contract, never did become due and payable unless the effect of these conditions is to be considered modified or nullified by the provisions of Paragraph 4(d). We find such to be the case, for all of the work done by Parsons was suspended or abandoned by Bristol. Parsons' work was admitted by Mr. Loveridge, speaking as one of the four stockholders of Bristol, to be entirely satisfactory.

We view Paragraph 4(d) in somewhat the same light as a saving clause. We can attribute no other purpose to its incorporation into the agreement, for it treats only the subject of abandonment or suspension of Parsons' work in whole or in part. It contains no qualifications. No reason or cause for abandonment is mentioned. From what appears the parties all had in mind abandonment and suspension for any reason or cause whatsoever without consideration as to responsibility. $The suspension and abandonment of Parsons' work by Bristol thereby actuated the provisions of Paragraph 4(d) which entitled him to have his fee ‘protected based upon the percentage of work completed under that particular phase’ (Phase 2) and ‘payable forthwith.’ This particular language is clear. The maturing of the right to be paid is unqualified by any other condition other than that of abandonment or suspension. Reading any other condition into the paragraph would amount to incorporating a provision which is not there. We hold, therefore, that Parsons is entitled to be paid forthwith a prorated fee for services rendered, said proration to be based upon the percentage of work completed under Phase 2.

But now arises the question: What is this prorated fee to be based upon?

Paragraph 3(b) provides in brief that for services under Phase 2 Parsons is to be paid 6% of the cost of construction as said cost is defined in Paragraph 5, but payable as provided in Paragraph 4. As stated above Paragraph 5 defines cost of construction as the actual cost to Bristol finally paid to Pozzo. But Paragraph 4 which defines how payments are to be made contains two sub-paragraphs (a) and (c) which specifically ignore the definition of cost of construction as defined in Paragraph 5 and provide for payments ‘computed’ or ‘based’ upon ‘a’ or ‘the’ ‘reasonable estimated cost.’

The $12,000.00 payment made under the provisions of Paragraph 4(a) when Bristol decided to undertake Phase 2 was certainly ‘computed upon a reasonable estimated cost,’ for no actual cost of construction as defined in Paragraph 5 ever came into being. There was no construction.

None of the conditions of payment provided in Paragraph 4(b) ever came to pass. That paragraph contains the only specific provision limiting payments to any particular funds.

Paragraph 4(c) treats only, ‘the balance of the fee,’ meaning the balance under Phase 2 which would be the seventy-five (75%) per cent payable only from construction loan funds less the previous payments. the only previous payments were the $600.00 and $12,000.00 payments making a total of $12,600.00 to be deducted from the seventy-five (75%) per cent. But this seventy-five (75%) per cent would be 75% of the cost of construction defined as the actual amount paid to Pozzo Construction Company which in turn would be 75% of nothing.

The next point to be ascertained is whether in Paragraph 4(d) the language used should reasonably be interpreted to call for payment apart from the agreed fee of 6% based upon the actual cost of construction. The language used in covering the contingency in that paragraph is that the Architect is to be paid forthwith—(and the fee) ‘shall be prorated based upon the percentage of the work completed under that particular phase and shall be payable forthwith.’ Payment under the language of this paragraph is directly and specifically tied to neither the cost of construction nor ‘the reasonable estimated cost.’ Since it is not specifically tied to ‘the reasonable estimated cost,’ or ‘a reasonable estimated cost’ as in 4(a) and 4(c) it can then be contended with reason that it must be tied to the actual cost of construction. On the other hand since Parsons was the sole architect and since therefore the building could not be constructed without his work, the abandonment of his work ‘in whole’ would necessarily connote no ‘actual cost of construction.’ What did the parties mean then in providing for prorated payment forthwith? Since abandonment in whole would result in no ‘actual cost of construction’ figure and since payment is not specifically provided to be made from ‘construction loan funds' as in 4(b) and since payment is specifically provided to be made ‘forthwith’ it would seem that the language of this paragraph excepts it from the provisions of Paragraph 3(b) and that the term ‘prorated’ must refer to a proration of ‘a reasonable estimated cost’ or ‘the reasonable estimated cost,’ as in the case of Paragraphs 4(a) and 4(c). On this point the extrinsic evidence in the record affords but little assistance in resolving this ambiguity.

While it is true that extrinsic evidence including oral testimony relating to the negotiations leading up to the execution of a written agreement as well as the conduct of the parties thereafter are properly admitted into evidence to explain or aid in the interpretation or resolution of an ambiguity, the conduct of the parties after execution and before any controversy has arisen, where such conduct would throw any light upon the subject, would ordinarily be more reliable and therefore entitled to more weight than unsupported oral testimony relating to negotiations prior to execution. (Woodbine v. Van Horn, 29 Cal.2d 95, 173 P.2d 17; Lemm v. Stillwater Land & Cattle Co., 217 Cal. 474, 19 P.2d 785; Whalen v. Ruiz, 40 Cal.2d 294, 253 P.2d 457.) Another important rule of interpretation is that which favors a construction of a contract as bilateral, affording protection to both parties rather than unilateral. (Davis v. Jacoby, 1 Cal.2d 370, 34 P.2d 1026; Woodbine v. Van Horn, supra.) Also an uncertain contract should be construed most strongly against the party who caused the uncertainty to exist, and such party is presumed to be the promisor. (Keith v. Electrical Engineering Co., 136 Cal. 178, 68 P. 598.)

Respondent Bristol states in its brief:

‘The testimony in this case clearly showed that parsons was aware that the sums he is now seeking to collect could be paid by Bristol only in the event it was able to obtain a construction loan based upon the Architectural program of Parsons.’

But no reference to supporting testimony is given nor is reference made to any supporting evidence other than to refer to Paragraph 2(c) of the contract.

Unquestionably in the process of negotiating this contract the parties had numerous discussions concerning various contingencies. But at the time the contract was drawn a firm commitment of funds for construction had been obtained as was testified to by Mr. Loveridge, one of the four stockholders of Bristol, and Parsons was instructed to proceed with his work under Phase 2. He therefore had every right, so far as any clear provision to the contrary in the contract is concerned, to rely upon being paid, even if his work came to naught, unless through his own fault. Denial of payment is not being sought because of any claimed fault on the part of Parsons. He had no reasons to assume that the firm commitment of funds would not materialize into actual available funds because of a controversy between those who were to be the sole beneficiaries of the work he was caused to perform. The underlying reason for respondent Freeman's lawsuit and his lis pendens does not appear nor does it appear that Bristol was faultless in the matter or powerless to prevent it or to correct it after it occurred. Under such circumstances it should not lie with the parties solely at fault to deny to one not at fault compensation for services satisfactorily performed by him through their demand that ambiguous provisions of a contract be interpreted more strongly in their favor.

Two issues remain to be passed upon. (1) Did the trial court abuse its discretion in refusing to grant Parsons' motion to amend his pleadings to conform to proof, and (2) is Parsons entitled to a mechanic's lien on the real property involved?

As to Parsons' motion to amend his complaint to conform to proof we are of the opinion that the motion should have been granted. The amendment sought involved only the substitution of higher dollar figures for those appearing in Parsons' complaint. It appears from the record that the actual data upon which Parsons based the original figures in his complaint was at all times subsequent to receipt of Pozzo's estimate of cost in possession of Bristol. It is not clear whether they were known to Parsons. But whether they were or not a trial court should in the interest of justice and unless good cause appears to the contrary at least permit amendments to conform to proof which amount only to a substitution of figures where evidence in the record would support different figures. In Meyer v. State Board of Equalization, supra, 42 Cal.2d 376, 386–387, 267 P.2d 257, 264, appears this language:

‘It is a well-established rule which is founded on good reason and justice that a court should exercise great liberality in permitting amendments of pleadings at any and all stages of the trial to adequately, present all issues which are properly involved in the litigation.’

Turning now to Parsons' contention that he is entitled to a mechanic's lien to secure the obligation owed to him by Bristol we find that under the provisions of California law and the circumstances of this case he has such right. Freeman filed a brief herein in opposition only to Parsons' claim of this right of lien and his motion to amend his complaint. Both Freeman and Bristol urge similar reasons for denial of the lien right.

Parsons relies heavily on the case of Nolte v. Smith, 189 Cal.App.2d 140, 11 Cal.Rptr. 261, 87 A.L.R.2d 996 and Design Associates, Inc. v. Welch, 224 Cal.App.2d 165, 36 Cal.Rptr. 341. In each of these cases appears a rather full discussion of the principles to be applied in close questions involving the Mechanic's Lien Law. It is pointed out that in California architects are expressly included as members of a class who, in a proper case, are given a lien for ‘performing labor upon or bestowing skill or other necessary services on * * * the construction, alteration, addition to, or repair, either in whole or in part, of, any building, structure or other work of improvement.’ (Code Civ.Proc. § 1181). The lien is ‘upon the property upon which they have bestowed labor.’ It exists if the work was done, ‘at the instance of the owner or of any person acting by his authority or under him, as contractor or otherwise.’ (Code Civ.Proc. § 1181); Design Associates, Inc. v. Welch, supra, page 173, 36 Cal.Rptr. 341. Further on in this opinion, page 173, 36 Cal.Rptr. page 345, the court goes on to say:

‘There is California authority generally to the effect that if the ‘work of improvement’ is not constructed there is no ‘property’ upon which the lien can attach but this rule is subject to the exception that where the project fails through the fault of the person whose interest is sought to be charged he is estopped to deny its benefit.'

In the present case there is no dispute that the work was stopped because defendant Freeman filed his action against Bristol and recorded a lis pendens. Here no interests are sought to be charged excepting those of Bristol and Freeman. Freeman did not testify at the trial nor did any witness on his behalf, so good faith in the filing of the action and recording the lis pendens may be open to some doubt. The matter is not mentioned in the briefs so we can only assume that it is not questioned by Parsons. The fact remains, however, that whatever the reason or reasons it is admitted that the halting of the operations on the project lies solely with Freeman or Bristol or both and since theirs are only the only interests to be charged they are estopped to deny the benefit conferred by Parsons upon them or the property sought to be charged. From all that appears both defendants were fully cognizant of the work being done by Parsons. No notices of non-responsibility were posted nor were any other steps reasonably taken to protect the property from liens. Title to the property was in Bristol by deed from Freeman. These parties could therefore not sit by while the architect performed his work and then deprive him of his compensation by excusing liability through development of a controversy between them and the clouding of title.

It is not contended by either Bristol or Freeman that the work done by Parsons had any application to or benefited any other than the subject property. Parsons did not perform the work while physically present on the property nor did he personally take soil samples, do any soil testing or otherwise personally do anything of a physical nature observable upon the property. There is undenied testimony that he did go upon the property and also that in the performance of his architectural work he made use of soil test data supplied by Builders' Soil Control, Inc., which was paid for by Bristol, and which was authorized in a letter from Bristol to Builders' Soil Control, Inc., a copy of which follows:

‘February 8, 1961

‘Builders' Soil Control, Inc.

‘2651 North Main

‘Santa Ana, California

‘Attention: Miss Bagg


‘We are contemplating building a multistory office building in the general vicinity of Seventeenth and Bristol Streets in Santa Ana, California.

‘We understand that Mr. Parsons, Architect, has made inquiry with your organization concerning a soil test on the property. Mr. Parsons informed us that you were ready, willing and able to perform the soil testing in accordance with his instructions for an amount directly related to the depth of the test but in no event to exceed $700.00.

‘This letter is to confirm the engagement on the above terms and it is understood and agreed that you will perform the engagement satisfactory to Mr. Parsons consistent with the above.

‘Mr. Parsons will send you the instructions direct from his office. It is requested that you confirm the above by letter prior to the actual performance.

‘Thank you.

‘Very truly yours,


‘By ________

Richard B. Dodge, President


It is obvious from this letter that Parsons initiated the engagement, and that it was to be performed to his satisfaction which would mean, in other words, according to his direction. The actual work was paid for directly by Bristol, but, from direction in Bristol's letter it cannot sensibly be maintained that Parsons was not an integral part of the scheme of soil sampling. The result of the work required to be done to his satisfaction became and was visible on the property in similar manner as would the engineering markers and mounments in Nolte v. Smith, supra, 189 Cal.App.2d 140, 11 Cal.Rptr. 261, sought to be distinguished by respondents.

Respondent Freeman in his brief points to certain title hazards which he claims would attend the following of plaintiff's contentions to their logical conclusion. As an example he says that any architect who drew plans for a prospective owner would have a mechanic's lien on any lot that was in escrow, that in the ordinary escrow for a subdivision there are engineering studies, surveying, drainage and soil tests, all of which go to determine whether land may be developed for a subdivision and that if plaintiff's contentions were followed, any time a land owner went to escrow he would be liable to all parties conducting any kind of tests or survey for the prospective buyer.

The answer to this contention is that if the parties took the proper legal steps afforded under the law for the protection of their interests the untoward results envisioned could not follow. Our statutes afford protective measures for the land owner as well as for the artisan. They may not all effect a perfect or absolutely just result in all cases but we have not been referred to nor are we aware of any statute, case or theory in the Mechanic's Lien Law field which prefers the owner over the artisan in a situation such as the one at bar.

The judgment is reversed with directions to the trial court to allow plaintiff's requested amendment to his complaint, to determine the amount due to plaintiff under the terms of the contract as here interpreted by further trial if necessary and to declare the amount of said judgment to be a lien upon the real property described in the action.



FINLEY, Justice pro tem.* FN* Assigned by Chairman of the Judicial Council.

COUGHLIN, Acting P. J., and GERALD BROWN, J., concur.