Harmon v. Ashmead

California Supreme Court May 17, 1882 No. No. 7,968Published

Before: McKee

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Holding. A mechanic's lien cannot be foreclosed until the underlying debt has become payable, and a complaint that affirmatively alleges the debt is not yet due fails to state a cause of action. Such a defect is not cured by a defendant's default or failure to demur.

Issues

Whether a mechanic's lien can be foreclosed before the debt for which it serves as security has become payable.
Whether a complaint that admits the debt is not yet due states a cause of action.
Whether a failure to demur or answer waives the defect of a complaint that states a perfect but defective cause of action.

Disposition. reversed

Quotations verified verbatim against the opinion

“It is familiar law that there can be no foreclosure of a lien until the debt for which the lien is made and held as security has become payable.”

“These allegations are not a defective statement of a cause of action; on the contrary, they are a perfect statement of a defective cause of action, and a defective cause of action is not cured by failure to answer or by verdict.”

Synopsis

Foreclosure of Mechanic’s Lien—Lien—Premature Action.—La an action by several plaintiffs (under § 1195, C. C. P.) to foreclose separate mechanics’ liens, it was alleged with reference to each cause of action that the defendant promised to pay the agreed amount “upon the completion of the buildingand also that at the time of the commencement of this action the building was not completed.

Held: There can be no foreclosure of a lien until the debt for which the lien is made and held as security has become payable.

Id.—Pleading—Waiver of Defects Cured by Verdict or Default.— Defects in the statement of a cause of action may be cured by failing to answer or by verdict, but not a defective cause of action.

McKee, J.: In this case eight persons claiming separate mechanics’ liens upon the property described in the complaint, brought a single suit to foreclose them, pursuant to Section 1195 of the Code of Civil Procedure, which permits any number of persons claiming hens upon a building or structure to join, as plaintiffs in one action, to establish and enforce their several liens. Of the defendants to the action Ashmead made default. The others answered by specifically denying some of the allegations of facts which constituted the eight causes of action contained in the complaint.

Substantially, the allegations of each of the causes of action are that Ashmead, being the equitable owner and in possession of the premises upon which it is sought to establish the several liens, was engaged in building a house on the premises; that, at his instance and request, the plaintiffs, severally, verbally agreed to furnish him with building material to be used in its construction, for which he undertook and promised to pay each of them, in gold coin, “upon the completion of the building,” the market value of the materials at the time they were furnished and delivered. Each of the plaintiffs performed his agreement by delivering to Ashmead, [441]from time to time, between April, 1877, and April 1,1878, the materials which he contracted to furnish, and they were used by Ashmead in the construction of the building; that, at the time they were delivered, they were of the market value of the sum specified in the complaint; that this sum was unpaid April 1, 1878, and, to secure payment thereof, each of the plaintiffs, on April 6, 1878, and “within sixty days after the completion of said building,” filed and recorded his claim of a mechanic's lien duly verified according to Section 1187, C. C. P.; but it is also alleged “that, at the time of the commencement of this action (June 24, 1878), the building -or structure was not completed.”

There is no denial of the last allegation by the answer on file, or of the terms of the contract between the builder and the material-men. The issuable averments on those subjects are therefore admitted by all parties to the controversy. Ho reason is assigned for the non-completion of the building. It is not alleged that Ashmead abandoned the work, or broke the contract between him and the material-men; or that he and they, subsequently to the making of the same, changed or modified it in any respect. The pleader admits that it was unchanged and unaltered, and that, at the commencement of the action, the debt had not become due according to the terms of the contract; there was therefore no breach of contract and no cause of action.

Harmon v. Ashmead

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