perfections. ""Trivial imperfections,' as used in the code, relates to the question whether or not there has been an actual completion of the building." (Marble Lime Co. v. Lordsburg Hotel Co., 96 Cal. 332.) "What constitutes a 'trivial imperfection' is a question of fact in each instance" (Willamette etc. Co. v. Los Angeles College Co., 94 Cal. 229); and the decision of the trial court thereon cannot be disregarded, unless the party complaining makes it clearly appear to be without any evidence in its support. (Harlan v. Stufflebeem, 87 Cal. 508.) The "trivial imperfections" mentioned in the above section refer to imperfect or defective performance of the work upon a building which is claimed to have been completed, and not to a case in which the building is admittedly uncompleted, and workmen are still engaged in constructing substantial portions thereof. (See Santa Monica etc. Co. v. Hege, 119 Cal. 376.) Neither is the question whether an omitted portion of the building is a trivial imperfection, or is a substantial failure in its completion, to be determined by its relative cost to that of the entire building. If the omissions are so substantial that the contractor would not have a right of recovery upon his contract, he cannot enforce a lien therefor. (See Marchant v. Hayes, 117 Cal. 669.) The court was, therefore, justified in considering that the marble steps by which the basement was to be reached was a substantial portion of the building rather than a trivial imperfection, even though its cost was small in comparison with the cost of the entire building.

2. After the plaintiff had furnished the materials to the furniture company, and before filing his notice of lien, he served upon the owner a notice in writing under the provisions of section 1184 of the Code of Civil Procedure, stating in general terms that he had performed labor and furnished material in the construction of the building, and also the value thereof, and requesting the owner to withhold from the contractor sufficient money therefor. It is contended by the appellant that by virtue of this notice he is entitled to recover from the owner the amount claimed therein, irrespective of the notice of lien filed with the county recorder. The notice authorized by this section has the effect of a garnishment of the moneys coming to the contractor which are in the hands of the owner, and, in the absence of any

claim upon such moneys in behalf of other lien claimants, the owner will be liable to the materialman or subcontractor for the amount of the claim to the extent of his liability to the contractor. (Bates v. Santa Barbara Co., 90 Cal. 543; First Nat. Bank v. Perris etc. Dist., 107 Cal. 55.) This right to garnishee the moneys of the contractor in the hands of the owner is limited by the terms of the section to "the persons mentioned in section 1183," and is but a cumulative or additional remedy given for the purpose of enforcing in another mode the right for which by section 1183 a lien is authorized upon the property upon which the labor has been performed, or for which the materials were furnished. It does not confer upon them a right to collect from the owner any claim they may have against the contractor for labor and materials other than is conferred elsewhere in the chapter, but provides that, instead of filing with the county recorder a notice of their claim of lien, and enforcing the same against the property, they may intercept the moneys in the hands of the owner, to the extent of their claim, by giving him this notice. The remedy thus provided is limited to the cases in which, by section 1183, the property may be made subject to a lien, and the owner is not required, upon receiving such notice, to withhold from the contractor any moneys in his hands, except for materials furnished for or labor performed upon the property.

The controversy at the trial in the present case was chiefly upon the claim of the plaintiff that all the materials furnished by him were used in the construction of the building. A portion of these articles consisted of marble tops for counters, which were to be used by the tenant of the basement, and it was claimed by the plaintiff that these counters were so constructed as to become fixtures in the building and a part thereof, whereas, on the other hand, it was contended that they were in the nature of furniture for the use of the tenant, and were no part of the building. The court found that all of the base and "a portion of the other marble" furnished by the plaintiff was so affixed and adjusted to said building as to become a part thereof, and that the value of the part of said materials so affixed to the building was six hundred and thirty-four dollars and fifty-three cents, and for this amount gave judgment in his favor against the owner. The

court also found that there was due to the plaintiff under the terms of his contracts with the furniture company the sum of nine hundred and sixty-six dollars and seventy-eight cents. The appellant claims that he was entitled to judgment against the owner for this larger amount.

Whether the materials furnished by the appellant were so affixed to the building as to become a part thereof was a question of fact to be determined by the court upon the evidence before it. It was shown that the floor of the basement was of cement, and that the counters were built upon platforms which were made by laying down strips of wood and nailing the floor to them; that the platforms rested by gravity on the cement floor, and could be taken up and carried away, and that the counters stood upon these platforms; that the floor or platforms to which the counters were nailed was loose, and was not in any way attached to the cement floor of the building. The architect testified that he had examined the work of the plaintiff, and that less than one-half was attached to the building. Other testimony was given upon the subject, the effect of which was to create a docided conflict of evidence upon the question before the court, and we cannot hold that the court erred in its conclusion. The judgment is affirmed.

Garoutte, J., and Van Dyke, J., concurred.

Hearing in Bank denied.

[S. F. No. 1416. Department Two.-March 15, 1899.]

MARIA B. OWENS, Respondent, v. ALICE MCNALLY et al.,

Appellants.

CONTRACT TO PROVIDE FOR NIECE-PAROL GIFT OF LAND-DELIVERY OF POSSESSION ADJUDICATION OF OWNERSHIP AGAINST HEIRS.Where an uncle contracted with the mother of his niece to provide for her as his own child, and, in part performance of his

promise, purchased certain real estate, the possession of which he delivered to the daughter, as a parol gift, retaining the legal title in his own name, and the niece cared for him as a daughter until his death, she may, after his death, sustain an action against his administratrix and heirs-at-law to have it adjudged that she is the owner of the land given to her by the deceased. ID.-FORMER ADJUDICATION-CONTRACT TO WILL PROPERTY.-A former adjudication against the enforcement of a contract by the uncle to will property to the niece, is not a bar to the enforcement of the executed gift of the land made to her by the uncle in his lifetime.

APPEAL from a judgment of the Superior Court of Humboldt County. E. W. Wilson, Judge.

The facts are stated in the opinion of the court.

Chamberlain & Wheeler, and George D. Murray, for Appel

lants.

S. M. Buck, and Buck & Cutler, for Respondent.

MCFARLAND, J.-This is an action to have it declared that plaintiff is the owner of a certain lot of land, with a dwellinghouse thereon, situated in the city of Eureka, county of Humboldt, state of California, and known as lot 13, in block 8. The defendants are the widow, Alice McNally (who is also sued as administratrix), and the other heirs-at-law of Lawrence McNally, deceased. Judgment in the court below went for the plaintiff, and the defendants appeal from the judgment.

Some of the facts in the case are stated in the opinion of this court in Owens v. McNally, 113 Cal. 444, although there are other facts in the case at bar which do not appear in the former case. In the case at bar, we are concerned only with the first count of the complaint, which states, in substance, the following facts: In the year 1881 plaintiff, who was then eighteen years of age, lived with her parents in the state of Michigan. The said Lawrence McNally, deceased, was the brother of plaintiff's mother, and lived at that time in the city of Eureka, in Humboldt county, California, where he continued to reside until his death, in 1893. In 1881 the deceased was a bachelor about fiftyfour years old, and was the owner of considerable property in said. Humboldt county, and in that year he visited his sister, Cather

ine Owens, the mother of plaintiff, and sought to have plaintiff come to California and live with him and take care of him. In order to accomplish this purpose he executed and gave to the mother for the benefit of the daughter the following instru

ment:

"I, Lawrence McNally, promise my sister, Catherine Owens, in case of her consenting to allow her daughter, Maria Owens, to return with me to my home in Eureka, California, to remain with me during my life, I promise to provide for her as my own child, and, in case of her remaining single at my death, I promise to bequeath her ($20,000) twenty thousand dollars and real estate the value of which I am unable to state at present.

"Detroit, August 25, 1881.

"LAWRENCE MCNALLY.

"Signed Witness: Mrs. Henry Owens."

Thereupon, in said year 1881, the plaintiff came with the deceased to Eureka, California, and lived with and cared for him as a daughter until January, 1893, when he married the defendant Alice McNally. In the same year, on September 16, 1893, he died. He did not devise or bequeath to the plaintiff any property whatever, but died intestate. However, in part performance of his promise "to provide for her as my own child," in 1887 he purchased the lot and house involved in this action and gave them to plaintiff, although the legal title stood in his own name. The court found the facts to be as averred in the complaint. It found that in 1887, "in partial performance of the terms" of the written promise, "he purchased the lot in controversy and gave the same to plaintiff; and during the following year he furnished the dwelling-house thereon and gave the furniture therein to plaintiff, and placed her in actual possession of said premises; and from thence to the present time plaintiff has been and still is in the actual possession thereof, claiming the same as her own, under and in pursuance of said gift. That from 1888 until the marriage of said Lawrence McNally in 1893 he lived with the said plaintiff upon the lot in controversy, and during said time the said plaintiff, in reliance solely upon the said gift as aforesaid, cared for him as a daughter, attended to his daily wants, cared for him in times of sickness, prepared extra meals for him, was in all things kind. considerate, and affectionate, and generally de