No. 15832 | Cal. | May 23, 1895
Under a contract with appellant the respondent did, and caused to be done, the work of painting a building and other structures situated on a parcel of land, the property of appellant, in the city and county of San Francisco. The work was completed March 9, 1891. For this appellant owed respondent $703, of which sum $345 was paid; and respondent brought this action to enforce a lien asserted by him against the premises where the work was done for the unpaid balance of $358. His complaint contains an allegation that an amount specified is a reasonable allowance for attorney’s fees in the action, which averment defendant denied; the court made no finding on this issue.
Respondent sublet a portion of the work to one Sta
1. It has been established by the decisions of this court that no allegation need be inserted in a complaint for the foreclosure of a mechanic’s lien relative to the claim of the plaintiff for attorney’s fees; that an allegation on that subject if made does not bind even the party making it. (Mulcahy v. Buckley, 100 Cal. 490; Pacific Mut. Life Ins. Co. v. Fisher, 106 Cal. 224" court="Cal." date_filed="1895-03-08" href="https://app.midpage.ai/document/pacific-mutual-life-insurance-co-v-fisher-5447504?utm_source=webapp" opinion_id="5447504">106 Cal. 224.) Therefore, the issue made by the pleadings here on that question was immaterial, and the failure of the court to find upon the same was not error.
It is said that there was no evidence before the court as to the value of respondent’s counsel fee. Since the above-cited cases determine that the attorney’s fee is to be fixed by the court, irrespective of any averment in the complaint, and that such averment is immaterial, it
2. It was the duty of the respondent to protect the appellant’s property against any lien preferred by subcontractors, laborers, or materialmen employed by him. (Code Civ. Proc., sec. 1193.) Under the same section the owner was entitled to deduct from any amount due to respondent the amount of the Stapleton judgment and costs; and this, of course, includes the attorney’s fees recovered by Stapleton. Respondent could have prevented the accumulation of such expenses by the simple expedient of paying the sum due to Stapleton; it was his debt, and not appellant’s. (Covell v. Washburn, 91 Cal. 560" court="Cal." date_filed="1891-10-28" href="https://app.midpage.ai/document/covell-v-washburn-5445570?utm_source=webapp" opinion_id="5445570">91 Cal. 560.)
It does not affect the case that an order was given upon appellant for the amount of Stapleton’s claim before that action was begun, and that he refused payment of the order. The respondent could not split his demand, and by assignment of a portion thereof impose upon appellant without his consent the legal obligation of paying the assignee. (Thomas v. Rock Island G. & S. M. Co., 54 Cal. 578" court="Cal." date_filed="1880-07-01" href="https://app.midpage.ai/document/thomas-v-rock-island-g--s-mining-co-5439663?utm_source=webapp" opinion_id="5439663">54 Cal. 578; Grain v. Aldrich, 38 Cal. 514" court="Cal." date_filed="1869-07-01" href="https://app.midpage.ai/document/grain-v-aldrich-5437021?utm_source=webapp" opinion_id="5437021">38 Cal. 514; 99 Am. Dec. 423.) Respondent refers us to Adams v. Burbank, 103 Cal. 646" court="Cal." date_filed="1894-09-01" href="https://app.midpage.ai/document/adams-v-burbank-3307870?utm_source=webapp" opinion_id="3307870">103 Cal. 646. But that case differed from this in
It results that the judgment must he modified as of the date of its entry by striking therefrom the sum of $128.75, the excess of Stapleton’s judgment paid by appellant above the sum allowed as a credit to appellant in this action, and, as so modified, the judgment and the order denying a new trial should be affirmed.
Vanclief, C., and Belcher, C., concurred.
For the reasons given in the foregoing opinion the judgment is modified by striking therefrom the sum of $128.75, as of the date of entry thereof, and as so modified the judgment and the order denying a new trial are affirmed.
McFarland, J., Temple, J., Henshaw, J.