Plaintiffs brought this action in equity praying for an order discharging of record an alleged void mechanic’s lien specifically waived by defendant in writing for a valuable consideration; the recovery of a money judgment for the refusal- of defendant to release the lien after notice; and such other and further relief as may be just and equitable. De
The trial court entered decree finding, in substance, that defendant, for a consideration of $1,045.12, executed and delivered to plaintiffs a written waiver of its right to a mechanic’s lien but notwithstanding thereafter filed a lien in the amount of $790.90 ; that the lien was void and a cloud on plaintiffs’ title; ordered it released and discharged of record; and found that defendant, although given statutory notice, failed to release and discharge the mechanic’s lien to plaintiffs’ damage in the sum of $250. The court also made an accounting between the parties and found and adjudged that there remained due and owing from plaintiffs to defendant the sum of $790.90 for material furnished, and awarded defendant a personal judgment for $540.90, the difference between the damages suffered by plaintiffs and the amount due defendant, and ordered that each party pay their own costs.
Plaintiffs appeal from the judgment awarded defendant, and defendant cross-appeals from the allowance of damages to plaintiffs. No bill of exceptions was filed, therefore, this court will determine only whether the law and the pleadings sustain the judgment of the trial court. Wheeler v. Boiler,
Plaintiffs contend that, since they were not parties to their contractor’s arrangements with defendant to furnish the material involved, it was error to award a personal judgment against them. The law does not support this contention. The rule is that, where the sufficiency of an answer to support a counterclaim is not questioned until after
Plaintiffs’ exhibit “A” (defendant’s waiver of mechanic’s lien), attached to and made a part of their petition, upon which they must rely for any recovery, both as the basis for discharging the lien of record and for the recovery of damages, states unequivocally that defendant was employed by plaintiffs and their contractor to furnish materials for the home erected upon plaintiffs’ property.
In Carey v. Zabel,
A party may at any and all times invoke the language of his opponent’s pleading, on which a case is being tried, on a particular issue, and in doing this he is neither required nor allowed to offer such pleading in evidence In the ordinary manner. Provident Savings & Loan Ass’n v. Booth,
Section 52-103, Comp. St. 1929, reads in part: “Nothing herein contained shall be taken to prevent the ascertainment by proceeding at law, or otherwise, of the amount actually due for such * * * material * * * .” We have held that- on the foreclosing of a mechanic’s lien plaintiff may take a personal judgment against the party personally liable for the debt. McHale v. Maloney,
Under our Code the chancery practice has been justly so enlarged that an answer in the nature of a cross-petition may properly seek affirmative relief beyond that which is merely defensive, and such relief sought need not necessarily be based on equitable grounds if germane to the original action. Armstrong v. Mayer,
No contention is or can be made that defendant’s waiver of a mechanic’s lien destroyed its right to recover by whatever remedy available any balance due for material furnished to plaintiffs either before or after the execution and delivery of the waiver. 40 C. J. 367. We conclude that even though the mechanic’s lien affirmatively pleaded in defendant’s answer failed of foreclosure, the court did not err when it made an accounting between the parties and awarded a personal judgment against the plaintiff owners, they being personally liable for the material furnished by defendant. 40 C. J. 494, 495, 498;
By failure to appeal therefrom defendant recognizes the validity of the court’s decree finding that the mechanic’s lien filed was void and a cloud on plaintiffs’ title and should be discharged of record, but seeks to avoid payment of damages for its refusal to release upon proper notice. Defendant’s claim that no recovery can be had because plaintiffs did not use the word “damages” in "their petition but only asked for a money judgment, one-half the amount of defendant’s claimed lien, is without merit. The statute itself does not use the word “damages.” Section 52-112, Comp. St. 1929, reads in part: “And if such person having received such satisfaction as aforesaid, by himself or attorney, * * * shall not, within ten days after request in writing, lodge a notice (of release) in writing with the clerk, as is prescribed in this section, he or they neglecting or re
We are unable to make the distinctions asserted by defendant in connection with the contention that plaintiffs did not come within the terms of the act. Where, by reason of tender, payment or otherwise a mechanic’s lien has become satisfied or extinct, but still remains of record and an apparent cloud on the title, the owner may, even in the absence of statutory authority compel its discharge of record when, on request, the lienor refuses to act. 40 C. J. 327. In Deering & Co. v. Miller,
Defendant’s all-inclusive waiver was in fact an unconditional agreement to look only to the personal responsibility of the owner or contractor and not to the property. Brown v. Williams, 120 Pa. St. 24,
The right of plaintiffs to demand release of the mechanic’s lien is not a doubtful or disputed question as the record comes to this court. Plaintiffs did not seek to recover a penalty, as defined in Department of Banking v. McMullen,
The trend of all recent decisions is to hold that mechanic’s lien statutes are cumulative and remedial 'in nature requiring a liberal construction so as to effectuate their objects and purposes and protect all claimants within their scope as well as to promote substantial justice. 40 C. J. 51, 367. See, also,
The trial court awarded plaintiffs $250 damages and in the absence of a bill of exceptions the amount cannot be questioned, because the presumption is that it was supported by the evidence. Prokop v. Mlady, supra.
Cases relied upon by defendant to establish that section 52-112, Comp. St. 1929, is unconstitutional by reason of permitting an award of punitive or exemplary damages are not applicable here. The enactment is a cumulative statute, remedial in nature, which permits recovery of actual damages in a civil action but limits the amount of such damages to one-half the amount of the claimed lien. The presumption 'is that the statute is constitutional. We find nothing in the act itself and no authority has been cited or found requiring us to hold otherwise.
The law and the pleadings sustain the judgment of the trial court. We find no error in the record, and the judgment is affirmed.
Affirmed.