I have dissented from the order denying a rehearing of this cause partly for the reason that a question as to the right of Minnie Chant to recover upon the bond of Beyrle's surety, for a portion at least of her demand is left undecided, and partly for the reason that the opinion of the court goes beyond the necessities of the case in stating a doctrine which imposes what in my opinion is an unauthorized *Page 316 and unjust restriction upon the right of a garnishment in similar cases, involving public improvements, and by consequence abridges the right of lien as well as garnishment in similar cases involving private improvements.
It is stated in the opinion of the court that "the appellants are seeking payment out of a fund due from the city to Beyrle of demands for which neither the city nor Beyrle is personally liable." And this seems to be true except as to a part of the claim of Minnie Chant. So far as it is true that the appellants are seeking payment out of a fund due Beyrle for work done on section 16, of claims for work done for his subcontractors on sections 17, 18, etc., I agree with the court that their position is untenable, and this, except as to the claim of Minnie Chant, was all that was necessary to be said in affirming the judgment of the superior court. But the opinion of this court goes further and will be cited hereafter as holding that where a single improvement — as for instance a house — has been constructed by the same contractor under separate contracts for different parts of the work, and the owner in consequence of garnishments duly served has withheld a sufficient amount of the money due the contractor to pay all claims in full, the fund must nevertheless be apportioned with reference to the application of previous payments to the one contract or the other, and if the result is that the fund assigned to one contract is insufficient to pay claims arising under that contract they must go unpaid and the surplus in the fund apportioned to the other contract go to the contractor's general creditors. I find no warrant in the statute (Code Civ. Proc., sec. 1184) for this construction. The letter of the statute does not sustain it, and certainly it is opposed to the policy of the law, which being remedial in its nature demands a liberal construction in furtherance of its objects. *Page 317