Madary v. Smartt

ALLEN, J.

Action to foreclose a mechanic’s lien. Judgment and decree for plaintiff. From the judgment and an order denying a new trial the defendant Kern Valley Bank appeals.

The first question presented upon the appeal is as to the sufficiency of the complaint. The complaint sets out an agreement between the lessee of the owner and the contractor, by which the latter agrees to furnish all the material and labor and to make certain alterations and repairs to a building. It further alleges that he fully completed all of the work agreed to be done. Following this, it is alleged that plaintiff entered into an agreement with said contractor, whereby he agreed to and contracted to furnish him certain specified materials, which were to be used in making such alterations and repairs, and which alterations and repairs were made with the knowledge of the owners. A copy of the lien filed of record is incorporated in the complaint, and, after the usual and ordinary statements, concludes as follows: “Wherefore said M. R. Madary claims the benefit of the law relative to liens of mechanics and others upon real property as found in the Code of Civil Procedure of the state of California.” '

It must be conceded that nowhere in the complaint is found the necessary allegation that the materials were actually used in the building, yet, in view of the conduct of all parties at the trial, such omission becomes unimportant. The transcript shows that the demurrer to the complaint was overruled by consent; that upon the trial, when plaintiff offered his testimony, counsel for defendant bank objected to the introduction thereof, and in such objection stated that it was “on the ground that the complaint does not state facts sufficient to constitute a cause of aetion. In other words, that the pleadings do not show that there has been any declaration of lien filed in the office of the county recorder, as required by law. I object to the introduction of any testimony with the view to prevent a lien being declared

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against the Arlington Hotel, and a decree of foreclosure ordered.” Further along, before the court passed upon the objection, counsel for the bank said: “There are only two propositions I care about in this matter. We deny that they are entitled to a lien to a partition that is mentioned in the complaint, and to the counter, and I am satisfied to try those two questions; to take the testimony upon those two matters and submit the ease. Let the objection stand to all the material, and you may prove that the material set forth in here was furnished.” This statement to the court could have had no other effect than to assure plaintiff and Ms counsel that no question would be raised on account of any defect in the complaint other "than as to the form of lien; that they might prove the fact of use without any amendment in that regard. And to permit the defendant now to raise any objection to the complaint which might have been obviated by a timely amendment would be unfair.