The defendant Bradbury appeals from two judgments against him, — the one in favor of certain materialmen and others foreclosing liens upon his property incurred in the construction of a building thereon, the other a money judgment in favor of the contractor, one Chandler; and he also appeals in each case from an order denying his motion for new trial. With regard to the former judgment, there is no dispute as to the validity or the amount of the liens; but it is found by the court that the agreement for the construction of the building was not reduced to writing, signed by the *Page 330 parties, or filed in the recorder's office, and accordingly judgment was rendered for the whole amount of the liens. In the case of Chandler (besides a similar finding as to the contract), it is found, in effect, that there is due to him, under the agreement as found by the court, the sum of $1,003.36. These findings, it is claimed by the appellant, are not justified by the evidence, and this contention must, we think, be sustained.
With regard to the former finding, it appears from the statement that the written contract, specifications, and drawings under which the house was built — all signed by the parties — were produced at the trial from the recorder's office and put in evidence, and they now appear in the record. It is difficult, therefore, to understand how the court could find as it did; but from the respondents' brief we may gather that the theory of the finding is, that the actual contract was void for want of compliance with statutory requirements. But assuming this to be the case, yet it does not justify the finding. For, with regard to findings, there is a wide difference between a void contract, or contract declared to be void by law, and no contract. For in the former case, where there is an agreement between competent parties, there is, ex vi termini, a contract, and, where the agreement is in writing, a written contract. Hence, where the evidence shows the existence of a contract, the fact, with the facts bearing on its validity, should be found, relegating to the conclusions of law — if the court should be of such opinion — the legal conclusion that it is void. (Code Civ. Proc., sec. 633.)
Nor do we see anything in the contract to justify such a conclusion. It seems to have been drawn by a professional architect, and apparently with care and skill, and the objections urged to it are hardly worthy of serious consideration. One of them is, that, pending the settlement of the terms of the contract, it was agreed — as appears from a memorandum in the specifications — that the old house on the property was to be the property of the contractor, with the privilege of removing it, or of using the material, where suitable, in the new building, and, according to the finding, that the house was to be taken by him at the agreed value of $100, which accordingly was deducted from the contract price originally agreed upon, leaving the amount as in the written contract, *Page 331 $8,052. But we can see nothing objectionable in this. The transfer of the house — which was an executed transaction — was antecedent to the contract as executed, and formed no part of it.
Another objection is, that in the specifications reference is made to the adjoining house of the owner, and to portions of the work thereon or therein, as patterns or samples for portions of the work contracted for; as, for example, in the following provision of the specifications: "All outside finish of every kind and description shall be in strict conformity with that of the adjoining building," — "All inside finish of every kind and description, doors, windows, etc., . . . shall conform in finish and material to the work of the adjoining building on the south, except," etc., — "All closets shall be fitted up in the same manner as closets of adjoining building, with shelves, clothes-hooks, etc., complete," — "The mantels to be of the same pattern, finish, and material as the mantels in the adjoining building, with tile facing and hearth," etc. But to this we can see no objection, but are rather inclined to think it a peculiarly satisfactory mode of specification. Nor do we think the objection tenable that the old house thereby became part of the contract, and hence that the whole contract was not filed in the recorder's office. All written contracts refer to mattersdehors the instrument, but such matters (except where, as in WestCoast Lumber Co. v. Knapp, 122 Cal. 79, the matter referred to is another writing) do not become a part of the instrument. Thus monuments and natural objects called for in a deed cannot with any propriety be said to be part of the deed; nor where goods are sold or contracted to be sold by sample can the sample be said to be part of the contract, though conformity to sample doubtless is. Nor is the case different here, where work is contracted to be done according to a specified pattern or sample.
We are of the opinion, therefore, that the requirements of the law with reference to the execution and filing of the contract were fully complied with. These requirements are either the filing of the contract or of a memorandum as prescribed; and to comply with the former of these alternatives it is sufficient that the contract filed be sufficient, under the ordinary rules of law, to constitute a written contract. *Page 332
In the Chandler case, the court finds the original contract price to be $8,152 (being the amount given in the written contract, with $100 added for the agreed value of the house), and to this it adds $729.68 for changes in the building, and $851 for extra work and materials, less $310.13 for agreed omissions, thus making the total contract price $9,422.55, on which it is found the defendant is entitled to a credit of $8,419.19 for cash paid and for the liens due, thus leaving a balance of $1,003.36 due the plaintiff. But it is claimed by the appellant, and we think rightly, that the item of $729.68 is an improper charge, being merely the contractor's estimate of the value of all changes in construction, and therefore including the cost of all extra work and materials; and it is further claimed, and apparently with justice, that from the amount of $851 for extra work and materials there should be deducted two items improperly charged, — the one for "iron work, $34.26," and the other for "extra mill work, $276.52." Making these deductions, there would remain due to the contractor for extra work and materials the sum of $540.22, which agrees very closely with the amount alleged in his suit for foreclosure, tried together with the suits involved in this appeal, where the amount is given as $542.32. It is very clear, therefore, — without passing definitely upon all the specific items of the account, — that the estimate of the court is excessive.
We do not pass upon the claim of the appellant Bradbury to a credit for the items of work specified in his complaint as omitted by Chandler and done by himself. On the record before us, it is not apparent that he was entitled to these credits, or that the court erred in excluding evidence with regard to them; nor, at least with reference to some of them, is the contrary clear. We leave the question, therefore, to be determined by the lower court on a new trial.
For the reasons given we advise that the judgments and orders appealed from be reversed and the causes remanded for new trial.
*Page 333Haynes, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion the judgments and orders appealed from are reversed and the causes remanded for new trial.
McFarland, J., Henshaw, J., Lorigan, J.
Hearing in Bank denied.
Beatty, C.J., delivered the following dissenting opinion, February 16, 1903: —