Frazer v. Barlow

Per Curiam. Appeal from a judgment upon demurrer entered after plaintiff had declined to amend.his complaint.

The action was against three defendants—: Barlow, Cronkite, and Ellis—to foreclose a mechanic’s lien for a balance due for lumber and materials furnished and used in the construction of a dwelling-house on a lot of land in the city of Sacramento.

The notice of lien was included in and made part of the complaint. The notice contains the statements that Cronkite and Ellis were the reputed owners of the land upon which the house was builded; that the materials which were used in its construction were furnished to Barlow, Cronkite, and Ellis, by the plaintiff. It contains no statement of the date when the building was completed, but it does state that thirty days had not elapsed since the completion of the building. On the other. ■ hand the complaint itself alleges that Ellis was the sole owner of the land; that the materials were furnished to Barlow and Cronkite, who had paid the cost of the same, except a balance which remained due and unpaid on the 31st of October, 1881, and that the house in the construction of which the materials were used “ was completed November, 1881,” and the notice of lien was filed “ December 2, 1881.” These inconsistent and contradictory statements made the complaint ambiguous, uncertain, and demurrable.

Judgment affirmed.