I dissent from the order of the court denying a rehearing. As to the case of the lien claimants, I think the position of the respondent has been misunderstood, and is therefore not fairly presented in the opinion of the court. The contract for the erection of the building, as reduced to writing and recorded, stated the contract price at $8,052. But the court found that the real price agreed to be paid for the improvement was $8,152. If the real consideration agreed to be paid was one hundred dollars more than the consideration stated in the written and recorded contract, then it seems to me that the conclusion of the trial court was correct, — that the contract, under section 1183 of the Code of Civil Procedure, was void as to the lienors, and that they were entitled to have a judgment for the full amount of their claims made a lien upon the property of the appellant. The difference between $8,052 and $8,152 is trifling, it is true, but the principle governing the case is just the same as if the difference between the actual price and the stated price was relatively much greater. The reason why the contract price was stated at one hundred dollars less in the written contract than as actually agreed was, that the contractor was to take the old building at a valuation of one hundred dollars, and it was agreed that the price as stated in the written contract should be reduced in that amount. If the property-owner agrees with the contractor that the proper cost of a proposed improvement is five thousand dollars, and because the contractor is already indebted to him in the sum of two thousand dollars proposes, and the contractor agrees, that in consideration of the cancellation of that debt the price in the written contract should be stated at three thousand dollars, no one could doubt that the recording of the contract in that form *Page 334 would be a violation of the spirit and a transgression of the policy of the Mechanics' Lien Law. No distinction can be drawn between the supposed case and this case, except upon principle ofde minimis, and that principle I think we have no right to apply. For this reason I think that the judgment in favor of the lienors should have been affirmed, as well as the order denying a new trial. In the other case I agree with the views of the court, that the judgment is erroneous. But the respondent in his petition for a rehearing has asked the court, instead of reversing the judgment and order in that case, and sending it back for a new trial, to simply modify the judgment by striking out those items which it is held upon the evidence he was not entitled to recover. I see no good reason for denying this request.