I dissent. The complaint is based upon the contract between the owners of the property and the original contractor, Johndrew. But as that contract was not recorded, it was, under section 1183 of the Code of Civil Procedure, as amended in 1887, “ wholly void.” In such a case, labor and materials shall be deemed to have been done and furnished “at the personal instance of the owner,” and a lien can be had “for the value thereof.” (Stats, of 1887, p. 153.) But the complaint was not drawn upon that theory; and therefore I think that the demurrer to it was properly sustained, and that the judgment should be affirmed.
Moreover, in my opinion, a material-man cannot have a lien for exploded powder after, like the “unsubstantial pageant” in the Tempest, it has “melted into air, into thin air.” It is true that this point is not much argued in the briefs, but it seems to be necessarily involved in the demurrer.