Lucas v. Rea

Mechanics’ Liens—Foreclosure by Materialman—Void Contract— Pleading.—Where the contract for the construction of a building for a sum exceeding $1,000 is void because not filed with the recorder before the work was begun, and because the specifications which were a part of the contract were not filed with the recorder, the materials are deemed to have been furnished at the personal instance of the owner, and it is sufficient for the complaint so to allege, and to assert a lien therefor directly against the owner, though not in accordance with the actual transaction between the plaintiff and the contractor.

Id.—Pleading—Invalidity of Contract—Proof—Practice.—It is not essential that the plaintiff should set out the contract or allege its validity, and the plaintiff may introduce it in evidence, and show its invalidity. But it is deemed proper practice to allege the facts as they exist, and leave it to the court to draw the conclusion that the property is subject to the lien; and where the contract is void, the plaintiff may pursue that course, or aver a direct agreement with the owners.

Id.—Uncertainty in Complaint—Notice of Lien as Exhibit—Inconsistency — Special Demurrer — Error not Prejudicial.— Though the allegation that the contract was made by plaintiff with the owner is inconsistent with the notice of lien, made part of the complaint as an exhibit, stating that it was made with the contractor, and admitting that a special demurrer for such uncertainty should have been sustained, yet the error in refusing to sustain it will not be deemed prejudicial, nor ground for reversal, where the court justified the ruling on the ground that the law made the contract to be with the owner, and the case was tried on that theory.

Id.—Mistake of Amount Due in Notice of Lien—Absence of Fraud —Complaint for Less Sum.—Where there was a mistake in the amount stated to be due in the notice of lien, and no fraud appears, the fact that the complaint is for a less sum, after deducting payments made, than is called for in the notice is unimportant.

Id.—Immaterial Difference.—There is no material difference between a statement of the whole amount due without setting out the credits, or a statement of the whole amount of the debit side of the account, and also of the credits.

ü>.—Immaterial Variance as to Terms op Contract—Substantial. Truth—Market Value.—The technical doctrine of variance does not apply to the statement of the contract in the notice of lien, all that is required being that the statement of the contract therein shall be substantially true. A statement made as to the terms of the contract which is shown to accord substantially with the-actual market value cannot mislead the owner to his prejudice,, though the contract is merely implied to pay the market value.

Id.—Uncertainty as to Terms op Contract—Harmonious Construction—Lien not Vitiated.—Where the notice of lien is uncertain as to whether the claimants rely upon an express or implied contract, but it merely states that the materials were furnished to the contractor, to be used in the construction of the building,, that there were no conditions attached to the contract, and no-time set for payment, except that payment was to be made when the work was completed, and there was evidence of an account stated thereafter, the notice is to be construed as harmoniously and consistently as possible; and any uncertainty therein cannot vitiate the lien.