Cox v. Western Pacific Railroad, No. 3,995

No. 3,995 | Cal. | Jul 1, 1873

By the Court:

Upon the former appeal, we held that the contract entered into between McLaughlin and Cox, Myers & Co. was an entire contract; that the contractor was only entitled to one lien, and for this purpose his claim must be filed within the time specified in the statute after completion of the work; and that the lien must be filed upon the whole work.

Upon the return of the case to the Court below, the complaint was amended by inserting therein an averment that the defendants prevented the completion of the contract; that McLaughlin completed the twenty miles of road upon which a lien is sought to be charged on or before October 15th, 1866; and a prayer for a judgment against McLaughlin personally. To the complaint as amended, each of the defendants separately demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The court sustained these demurrers, and, the plaintiffs declining further to amend, judgment was rendered that the plaintiffs take nothing, and dismissing the action.

The former decision has become the law of the case, and there can be no doubt that the demurrers interposed by the defendant companies were properly sustained. As against them the amended complaint is in no respect better than the original complaint. It still counts on an entire contract, and seeks the foreclosure of a lien which was filed before the completion of the work, and on a portion only of the road.

But it is claimed by the appellant that the complaint at least states a good cause of action for a personal judgment against McLaughlin, and that the court erred in sustaining the demurrer interposed by him. If the plaintiffs were prevented from completing the contract by the defendants they were fully justified in abandoning it, and had then a right to be paid a fair compensation for the work they had performed. Disregarding all those parts of the complaint which look to a foreclosure of the lien, we do not perceive wherein it fails to state all the facts necessary for a recovery against McLaughlin. It is true, that the averment that the plaintiffs were prevented from completing the contract does not show how or by what means. they were prevented, but we think it sufficient in this respect when tested by a general demurrer. The question, then, is whether a complaint, which states a good cause of action for the recovery of money, is demurrable on the ground that it does not state facts sufficient to constitute a cause of action, because there was also an ineffectual effort to state in the complaint a cause of action for the foreclosure of a lien to secure the same money. It was earnestly argued at the bar by counsel for respondent, that under our statute,' in relation to liens, the personal action cannot be joined with the equitable one, and that if the equitable action fails the personal one must fail also. But whether such a joinder of causes of action is proper or not we do not find it necessary now to decide, for, if improper, the objection should be taken by a special and not a general demurrer. Misjoinder of causes of action is one of the grounds of demurrer provided by statute, and it is deemed to be waived unless specially taken by demurrer or answer.

The question whether the Court erred in allowing the complaint to be amended is not before us. So far as the record shows, it was amended without objection.

As against McLaughlin, we hold, then, that the complaint states a cause of action, and that the demurrer filed by him should have been overruled.

The judgment in favor of McLaughlin is reversed, and the cause remanded with directions to overrule the demurrer filed by him. In other respects the judgment is affirmed.

Eemittitur forthwith.

Wallace, C. J., and Crockett, J., being disqualified, did not participate in the decision.