have presented some analogy to the one before us. For these reasons the general demurrer should have been overruled. Nor do we think there is anything in the special ground of demurrer that there is a defect of parties defendant, in that the county. superintendent, in his official capacity as such, should have been made a party defendant. Under the statute, the county superintendent is made a member of the board of education (Pol. Code, § 1768); and it is only in the latter capacity that he has any function to perform in the premises counted upon. It was only by reason of his being a constituent part of the board, therefore, that it was necessary to make him a party at all, and, as such, he is made a defendant. It is true that the constitution commits to county superintendents and county boards of education control of the examination of teachers, and the granting of certificates within their respective jurisdictions; but it has left it to the legislature to provide the machinery for putting this power in motion, and prescribe the mode and manner of its exercise and the limitations of the power vested. This the legislature has done, and has seen fit to prescribe that the functions of the superintendent in this regard, except in certain respects not here involved, are to be performed as a member of the board of education. In his separate capacity of superintendent, therefore, the latter was neither a necessary nor a proper party to the proceeding. by the mayor, upon application made to him; under such a state of facts, the case would by petition, signed by a certain number of electors. Before making a call for such election, the mayor was required to determine two things: First, that there was an excess of territory over the limit prescribed by the act; and, second, that at least 50 electors had signed the petition. Application was made to the mayor under the act to call an election, which he refused, and mandamus was sought to compel him to make the call. It was urged that, his function involving the exercise of judgment upon his part in passing upon the matters submitted to him, he could not be required to act in a particular way. It is said by the court: "It is well settled that, if the duty an officer is called upon to perform requires the exercise of an act of judgment on his part, his decision is not subject to be reviewed by a proceeding for a writ of mandamus. Ewing v. Cohen, 63 Tex. 483; Bledsoe v. Railroad Co., 40 Tex. 554; Arberry v. Beavers, 6 Tex. 457; Commissioners v. Smith, 5 Tex. 471; Cullem, v. Latimer, 4 Tex. 329. And it is apparent that, in a proceeding to procure an order for an election under the statute before cited, the mayor is required to determine two facts in order to justify him in making the order for the election: (1) That there is a surplus of territory over the limit prescribed by the statute; and (2) that at least 50 qualified voters of that territory have signed the petition. If there be any controversy as to the existence of these facts, his function is discretionary, and he cannot be compelled to order the election. But taking the facts of the petition to be true, as the demurrer admits, the surplus territory exists, and more than the requisite number of voters have signed the application. In such a case the discretion of the mayor ceases. The act to be done is purely ministerial. His duty becomes absolute, and he can be compelled to perform it. The fact that preliminary to his action he must know that there is an excess of territory beyond the statutory requirements, and that the requisite number of voters have signed the petition, does not invest him with thẻ discretion to refuse to order the election when, as a matter of fact, there is no controversy as to the excess, or as to the number and qualifications of the signers." Many other cases support a like view, but we deem it unnecessary to multiply them. The case of Bailey v. Ewart, 52 Iowa, 111, 2 N. W. 1009, largely relied upon by respondents as supporting their view, we do not regard as in point or as in any way in conflict with the principles above announced. It is apparent from the reading of that case that the certificate was there refused because the applicant was not found qualified; and it was properly held, under the general rule above stated, that this question was a discretionary one, and could not be reviewed. A very different question would have been presented had the applicant been found competent, and the certificate then refused. Had the court reached the conclusion it did It follows that the judgment should be reversed, and the cause remanded, with directions to the lower court to overrule the demurrer. It is so ordered. We concur: GAROUTTE, J.; HARRI (109 Cal. 178) CORBETT et al. v. CHAMBERS et al. (No. 19,417.) (Supreme Court of California. Sept. 25, 1895.) MECHANIC'S LIEN CLAIM SUFFICIENCY-FILING. 1. The provision in Code Civ. Proc. § 1187, requiring the claim filed by a mechanic's lien claimant to state "the name of the owner or reputed owner, if known," means the owner or reputed owner at time the claim is filed. 2. Objections to a mechanic's lien claim that the verification states that the facts stated therein are true, instead of that the claim is true, and that a certain person is the owner of the "premises" instead of the "building," are frivolous. 3. An objection that a mechanic's lien claim was not made or filed by the claimant should be overruled when it appears that the claimant signed the claim, and gave it to another to file, and it was indorsed by the recorder as filed by the claimant. Department 1. Appeal from superior court, San Diego county; E. S. Torrance, Judge. Action by W. C. Corbett and others against W. D. Chambers and others for foreclosure of mechanic's lien. From a judgment for defendants, plaintiffs appeal. Reversed. J. W. Goodwin and Henry J. Stevens, for appellants. Z. Montgomery & Son and F. W. Ewing, for respondents. HARRISON, J. Action for the foreclosure of four mechanics' liens upon certain property in the county of San Diego. When the notices of lien were offered in evidence the defendants objected to their sufficiency, and they were excluded by the court, and judgment rendered in favor of the defendants. Plaintiffs have appealed. have been made under different statutes. In the absence of any qualifying term, a statute must be interpreted according to the natural import of its language. There is no limitation upon the term "owner," as used in the above section of the Code, nor does it refer to the owner with whom the contract for the improvement was made, or to the owner at any other time than at the date of filing the claim. To hold that the notice must state the name of the "owner" who originally entered into the contract under which the work was done would be to require something of the claimant which the statute has not required; and to hold that a statement of the name of the owner at the time of filing his claim is insufficient would be to deprive him of a lien when he has fully complied with the requirements of the statute. The object of requiring the claim to be filed in order to perfect the lien is to give notice of the lien to those interested in the property upon which it is claimed; and, as the owner at the time of filing the claim is the party to be affected thereby, rather than one who has parted with the property subsequent to the making of the original contract, it is reasonable to suppose that the at the time the claim is filed, rather than that of any previous owner. The present mechanic's lien law is an evolution from prior statutes upon the same subject, resulting from the desire of the legisla The complaint alleges "that from about the 1st day of January, 1892, to about the 1st day of May, 1892, W. D. Chambers was the owner of the real property hereinafter described; that, as these plaintiffs are informed and believed, ever since about the 1st day of May, 1892, said property has stood in the name of F. W. Ewing, and that said F. W. Ewing has been the owner thereof." The notices of lien are substantially in the same form, and contain the following statements: "That F. W. Ewing is the name of the owner or reputed owner of said premises; that W. D. Chambers is the name of the person by whom this claimant was employed to work on said premises." One of the objections which the defendants made to the introduc- | legislature intended the name of the owner tion of these notices, and the one which has been chiefly argued in their brief, is that the notices should state the name of the owner at the time the claimant made his contract with Chambers, and should also state that the person for whom the labor was perform-ture to adjust the respective rights of lien ed had some contractual relation with the person named in the notice as the owner of the building, whereas the notices herein merely state the name of the owner at the time of filing the claim of lien, and do not purport to state the name of the owner at the time the contract was made, and that they fail to show any contractual or other relation between the owner and Chambers. The steps which are requisite to the enforcement of a mechanic's lien are entirely of statutory creation, and the same rule which makes it essential that all statutory requirements be complied with in order to perfect the lien renders it unnecessary to take any other step than is thus required. In order, therefore, to determine whether a notice of lien is sufficient, it is only necessary to compare its terms with the terms of the statute which provide for the notice. Section 1187, Code Civ. Proc., requires the claimant to file for record with the county recorder "a claim containing a statement of his demand, after deducting all just credits and off sets, with the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed, or to whom he furnished the materials." The requirements that are made by the statutes in many other states differ from those required in this state, and, as it is only necessary to consider the requirements of the above section, it is unprofitable to consider what decisions may claimants with those of the owners of prop- tion with the claimant, as did the statutes prior to 1862, and, instead of requiring that the notice of claim be personally served upon him, authorizes it to be filed for record with the county recorder. By the act of 1862 the notice was to be given to the "employer" of the orginal contractor, irrespective of any interest he might then have in the property; and the restoration of the term "owner" in 1868 indicates that the legislature deemed that notice to the employer might not be sufficient if such employer was not also the owner. As the main object of giving personal notice of the claim to the owner of the building is to affect him with notice of the lien, and afford him an opportunity of protecting himself against the same in his dealings with the original contractor, it must be assumed that when the legislature substituted the recording of the claim, with the name of the owner therein, for the personal notice previously required to be given to him, it intended the owner of the property who would be affected by the lien, rather than a prior owner, who had authorized the improvement, and who, by an intervening sale, had ceased to have any interest in the property, or in any lien thereon. Another object of having the notice made a matter of public record is for the protection of those who may deal with the owner of the property. By Pol. Code, § 4236 (16), the county recorder is required to keep "an index of notices of mechanics' liens, labelled 'Mechanics' Liens,' each page divided into three columns, headed, respectively, 'Parties Claiming Liens,' 'Against Whom Claimed,' 'Notices When and Where Recorded.'" The same provision is found in section 125 of the several county government acts that have been passed. It is by this index that a subsequent dealer with the property is to be guided in ascertaining whether there are any incumbrances upon the owner's title, and it is apparent that this index would afford no notice to subsequent purchasers or incumbrancers if the owner whose name is to be stated in the claim is one who at some previous time had been the owner, but who had, long prior to filing the claim, parted with all interest in the property. As the claim of lien which is to be filed with the county recorder is not the enforcement of the lien, or any step for its enforcement, but merely one of the acts to be performed in perfecting the lien, it is apparent that it is not essential that this notice shall contain a statement of all the facts essential to establishing the lien, or anything more than is required by the statute. The office of filing the statement is to give notice of the claim, and not to serve as evidence of the lien. statute does not require the claimant to state in his notice that the person to whom he furnished the materials, or for whom he performed labor upon the building, had any contract with the owner, or with the person whose name is given as the owner. The only notice that the claimant is required to give The is the name of the person with whom he dealt or contracted. He may not know the name of the owner, and if he is ignorant of his name he is not required to state it. Lumber Co. v. Newkirk, 80 Cal. 275, 22 Pac. 231. The person with whom he dealt may be unknown to the owner. He may be a subcontractor with whom the owner had no contractual relation, and the statute provides that the laborer may have a lien, irrespective of the existence of a contract on the part of the owner. In the action to enforce the lien, however, the claimant must state in his complaint all the facts essential to a recovery, and show that the person with whom he dealt had authority from the owner, either express or implied, to create a lien upon his property. If the owner who contracted for the improvement has in the meantime parted with all interest in the property, whether before or after filing the notice, the claimant cannot enforce his lien in an action against him alone, but must make as a defendant the owner at the time of bringing the suit. The statute is a remedial statute, adopted in obedience to the requirements of the constitution (article 20, § 15), and is to be liberally construed in furtherance of the purposes for which it was authorized. The persons for whose benefit the statute is enacted are not presumed to be versed in the niceties of pleading, and the notices which, under its provisions, they are authorized to give, have regard to substance rather than form. The terms of the section clearly indicate that it was not the intention of the legislature that in the claim of lien which he files for record the claimant shall state the name of the real owner, at the risk of losing his lien if it shall turn out that he was in error. The provision therein that the claimant shall give the "name of the owner, or reputed owner, if known," implies that, if he does not know the name of the owner, he may state this fact, and perfect his lien without naming an owner (Lumber Co. v. Newkirk, supra); and also that, if in good faith he gives the name of a reputed owner, he shall not lose his lien if he shall afterwards ascertain that some other person was the owner. See Leiegne v. Schwarzler, 67 How. Prac. 130. Under this view of the object of the section, it must be held that the claimant does not fail in perfecting his lien if, as in the present case, he states the name of the owner, or reputed owner, in the alternative. quired to ascertain at his the true owner, and as it is sufficient if he gives the name of the reputed owner, the sufficiency of the notice is not impaired by the same person being designated as owner or reputed owner. In either case it is only the opinion of the claimant upon matters that are not presumptively within his knowledge, but which he has formed from external information; and in that respect the notice which he is to file differs from a pleading in which a fact essential to a recovery must be As he is not reperil the name of definitely averred. The object of this statement in his claim is, as we have seen, to designate the person against whom he seeks to establish the lien, as well as to protect others in their dealings with the property. The purpose of this investigation is to point out the individual who is to be affected thereby, rather than the attribute of ownership; and, if the individual against whose property the lien is claimed is specified, he receives all the notice which is intended by the statute, irrespective of whether he is designated as owner or reputed owner. See Reed v. Norton, 90 Cal. 596, 26 Pac. 767, and 27 Pac. 426. Many other objections were made by the respondents to the introduction of the notice, but they have not been presented in their brief. The court sustained the objections as a whole, without specifying those which it deemed valid. We have, however, examined the record with reference to all of the objections, but do not deem that any of them require further consideration. The objection that in the verification of one of the claims it is stated "that the facts stated therein are true," instead of stating that the claim is true, as well as the objection to another of the notices that it stated that Ewing was the owner of the "premises," instead of stating that he was the owner of the "building," are frivolous. The only objection to the claim of the plaintiff Wellington was that it had not been filed in the recorder's office, or made by the claimant. Wellington, however, testified that he had signed the claim, and given it to Lee to be recorded; and upon this testimony, in connection with the indorsement upon the claim, the objection should have been overruled. The judgment is reversed. A contract providing that for $1.000 down and a yearly rental defendant should furnish plaintiff from "defendant's main canal, or from a branch thereof," a certain amount of water for irrigation, defendant to "place a suitable box or gate in the bank of said main canal, or a branch thereof, at the most convenient point for the conveyance of the water to said land," as soon as plaintiff should commence construction of a ditch, which it was provided he should build "from said box or gate to said and, at his own risk, cost, and expense," for the purpose of taking the water on his land, plaintiff to pay annually to defendant $100, "the first payment to be made the first Monday in September, after the water has been brought upon the said land," is so ambiguous as to whether the yearly payment was to commence the September after plaintiff took the water upon the land through the ditch to be constructed by him, or the September after defendant had brought the water to the land ready for plaintiff, that parol evidence of the surrounding circumstances and the intent of the parties is admissible to aid in the construction. Department 1. Appeal from superior court, Fresno county; M. K. Harris, Judge. Action by Robert Balfour against the Fresno Canal & Irrigation Company. Judgment for defendant. Plaintiff appeals. Reversed. L. L. Cory, for appellant. Geo. E. Church, for respondent. VAN FLEET, J. The parties hereto, in November, 1889, entered into four several contracts, whereby defendant sold and conveyed to plaintiff certain water rights or privileges for the irrigation of a section of land in Fresno county. The contracts were identical in terms, except that each referred to a different quarter section. So far as necessary to be stated, the stipulations were that the defendant, for the consideration of $1,000 paid down and a yearly rental hereinafter mentioned, agreed to furnish to plaintiff from "defendant's main canal, or from a branch thereof," the quantity of water contracted for; that the defendant should "place a suitable box or gate in the bank of said main canal, or a branch thereof, at the most convenient point for the conveyance of the water to said land," as soon as the plaintiff should commence the construction of a ditch, which it was provided he should build "from said box or gate to said land, at his own risk, cost, and expense," for the purpose of taking said water upon his land. It is then provided that plaintiff and his successors, etc., will pay annually to the defendant for a designated period the sum of $100, "the first payment to be made the first Monday in September, after the water has been brought upon the said land." And it is provided that, in case of default in such payment in any year for a space of 30 days after it be comes due, the agreement shall become void at the option of the canal company. Under these contracts defendant, prior to September, 1891, carried its canal to a point accessible to plaintiff's land, and in fact partly upon the line of said land, but plaintiff has not constructed, or commenced to construct, any ditch to take the water from said canal upon his land, nor has he ever otherwise taken or used said water. In due time after the completion of its canal, as aforesaid, the defendant made demand upon the plaintiff for the payment of rent under each of. said contracts for the year 1891, which plaintiff refused; and plaintiff likewise refused a demand for said rent claimed by defendant for the year 1892. Instead, plaintiff brought this action to have it decreed that there is nothing due from him to the defendant under said contracts, and to enjoin defendant from attempting to terminate or annul plaintiff's rights thereunder. Defendant filed a cross complaint, alleging its full compliance with the terms of the contracts, and that the two annual payments of rent for the years 1891 and 1892 were due and unpaid, and asked a decree enforcing the payment of the same. The court found that defendant had fully performed the contracts on its part, and rendered a decree in favor of defendant for the amount claimed, and from said decree, and an order denying a new trial, plaintiff appeals. The whole controversy turns upon the question as to when, under the contracts, plaintiff's obligation to make the annual payments of rent provided for commences, and the solution of this question depends upon the construction to be given that particular clause which provides that the first annual payment is to be made "the first Monday in September, after the water has been brought upon said land." Plaintiff contends that this language, while somewhat ambiguous and uncertain, was used and intended to refer to the taking of the water upon the land from defendant's canal, by the plaintiff, through the medium of the ditch to be constructed by him, and that no annual payment is to become due until such actual taking by plaintiff; while defendant's contention is that the clause plainly has reference to the bringing of the water to the land by the water company, and is in no degree ambiguous; and that, when defendant completed the construction of its canal, and carried the water to said land at an accessible point, from whence it could be conducted upon the land by means of the ditch to be constructed by the plaintiff, the condition upon which depended defendant's right to the annual rent was fully complied with, and that defendant is entitled to said rent, regardless of whether plaintiff was then ready to take or use the water upon his land. In support of the construction contended for by him, plaintiff introduced evidence at the trial tending to show that during the negotiations between the plaintiff and the officers of the defendant, which ended in the execution of the contracts, plaintiff for some time refused to take the said water rights, because he was making no use of the land which required water, and he did not desire to enter into the contracts, and be compelled to pay rent for water that he then had no use for, and so stated to defendant; that the latter was anxious to have plaintiff purchase said water rights, and he was assured by the president of defendant, with whom the negotiation was had, that, if plaintiff would take the contracts, and pay a thousand dollars each, which price was somewhat higher than that for which similar rights had been sold to others, he should not be required to pay rent until such time as he should take the water upon his land for use; that it was with this understanding that plaintiff entered into said contracts, and that this was what the parties intended to express by the language used. The evidence further tended to show that the language above quoted was inserted in writing in a blank left in the printed form of contract used by the water company, and that the clause as there inserted differed from that found in the other water-right contracts made by the company; the provision usually inserted being that the rent should be paid after the 1st of September of a certain year, without reference to when the water was brought on the land; while some of them provided that rent should be paid after the water was brought to the land; but that the contracts sued upwere the only ones providing that the rent should not be paid until the water was brought upon the land. This evidence was admitted by the court against defendant's objection that it was incompetent, as tending to vary the terms of the writing, and because all prior negotiations were deemed merged in the written contract, and could not be shown by parol. The court subsequently adopted this view, and struck the evidence out, and it is upon this ruling that the question involved arises. on If the language of the contract is, as defendant contends, plain and unambiguous, and susceptible of but one construction, then the objection was good, and the evidence properly excluded. If, however, the language employed be fairly susceptible of either one of the two interpretations contended for, without doing violence to its usual and ordinary import, or some established rule of construction, then an ambiguity arises, which extrinsic evidence may be resorted to for the purpose of explaining. This is not allowing parol evidence for the purpose of varying or altering the contract, or of putting a different sense and construction upon its language from that which it would naturally bear, but for the purpose of showing the circumstances under which the language was used, and applying it according to the intention of the parties. "The true interpretation of every instrument being manifestly that which will make the instrument speak the intention of the party at the time it was made, it has always been considered an exception, or perhaps a corollary, to the general rule above stated, that when any doubt arises upon the true sense and meaning of the words themselves, or any difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument itself." Sandford v. Railroad Co., 37 N. J. Law, 1, 3. For the purpose of determining what the parties intended by the language used, it is competent to show not only the circumstances unIder which the contract was made, but also to prove that the parties intended and understood the language in the sense contended for; and for that purpose the conversation between and declarations of the parties during the negotiations at and before the time of the execution of the contract may be shown. Code Civ. Proc. §§ 1860, 1861; City of Atlanta v. Schmeltzer (Ga.) 10 S. E. 543, |