Wyman v. Hooker

[38]

GRAY, P. J.

This is an action to recover the sum of $2,455.66, alleged to be due upon a certain builder’s contract, and to foreclose a mechanic’s lien securing the same. The plaintiff had judgment for $1,665.57, and for costs, and a decree of foreclosure, from all of which, and from an order denying a new trial, the defendant appeals.

The builder’s contract provides that the work shall be done under the direction and to the satisfaction of the architect. It further provides for payments as follows: 1 ‘ $2,000 when walls are up ready to receive the trusses; $2,000 when roof on, copings of wall cemented and rear corrugated iron finished; $2,127.50 when completed and accepted; the final payment of $2,042.50 shall be made thirty-five days after the completion and acceptance of the work.” It was also provided: “That in each case of the said payments a certificate shall be obtained from and signed by said John Parkinson, architect, to the effect that he considers the payment properly due; but no certificate given or payment made under this contract, except the final certificate or final payment, shall be conclusive evidence of the performance of this contract either wholly or in part, and that no payment shall be construed to be an acceptance of defective work or improper materials.”

1. Appellant contends that the complaint contains no allegation that the work was done to the satisfaction of the architect, or that the architect gave the certificate as to the last payment mentioned above. The complaint did state that the contract was fully performed on the part of the contractor, and contained a copy of the contract attached as an exhibit. The answer denied this averment of performance, and there was no special demurrer to the complaint for uncertainty. The allegations of the complaint in this respect were sufficient. (Code Civ. Proc., sec. 457;

Moritz

v.

Lavelle,

77 Cal. 12, [11 Am. St. Rep. 229, 18 Pac. 893].) If the appellant did not regard the complaint as sufficient in this respect, he should have demurred specially for this reason, and the defect, if it was a defect, could have been remedied by amendment. He will not be heard on appeal as to an objection of this character, as such an objection is deemed to be waived when not taken by demurrer to the complaint in the court below. (Code Civ. Proc., sec. 434.)