Wagner v. Hansen

Temple, C. This action was brought to enforce a mechanic’s lien. Plaintiff had judgment, and defendant M. Hansen appeals from the judgment and from an order refusing a new trial.

In his complaint plaintiff avers that he agreed with defendants “ to furnish, and did furnish, the labor at their special instance and request in completing the foundation of said premises, build the chimneys, laying wall-plates, laying out building, underpinning walls, building scaffolding, carrying brick, completing brick walls and brick foundation upon said dwelling-house, upon said lot of land, and for all which said work, labor, and materials said defendants agreed to pay said plaintiff the sum of $163.”

[106]It is again alleged that plaintiff agreed with defendants to perform the work and labor, and defendants “ agreed to pay plaintiff the sum of $163 in the gold coin of the United States, but that no time was specified for the payment other than that said defendants were to pay plaintiff when said work was completed.” In the notice of lien which is set out in the complaint plaintiff, to show compliance with section 1187 of the Code of Civil Procedure, states the terms, time given, and conditions of his contract as follows:

“I, Ferdinand Wagner, am the contractor for the brickwork and foundation and extra work, who, on the ninth day of April, 1889, as such contractor for the brickwork and foundation, entered into a contract with said M. Hansen and Margaret Hansen, under and by which I completed said foundation, and brickwork, and extra work, and the following is a statement of the terms, time given, and condition of said contract, to wit: ‘I, Ferdinand Wagner, was to furnish the labor and materials in completing the foundation of said premises, build the chimneys, laying wall-plates, laying out building, underpinning wall, building scaffolding, carrying brick, completing brick walls and brick foundations, for which I was to receive upon said completion of said work the sum of $163 in United States gold coin for said extra work.’ ”

The complaint was demurred to for insufficient facts, and as being uncertain, also for ambiguity, and under each head it was specified that it could not be ascertained from the complaint whether plaintiff was to be paid $163 for work and materials or for work only, nor for what work he was to be paid. Also, that the complaint averred that he was to be paid $163 for work only, while his claim of lien stated that he was to be paid $163 for work and materials furnished.