68 Cal. 321 | Cal. | 1885
— The denial in the answer of the allegation in the complaint, that the interests or claims of
Conceding that the denial of the defendants raised an issue, we think it was one of which they had the affirmative, and as they introduced no evidence to support it, the court was justified in finding that their lien was subordinate and subject to the plaintiffs’.
It is stated in the liens and alleged in the complaint that the defendant Ashmead agreed to pay for the materials furnished by plaintiffs upon the completion of the building. And it is further alleged in the complaint that, at the date of the commencement of this action, the building had not been completed; and that said defendant did not intend to complete it; and that he had •notified plaintiffs to that effect. Thereupon the sum which said defendant had agreed to pay for said materials doubtless became due. It is unnecessary to state in a lien that a building in the construction of which materials have been furnished and labor performed, has been completed. Biit the liens filed in this case did so state. That was doubtless done for the purpose of showing that the sum which the owner had agreed to pay for said materials had become due. The sum had become due, but not for that reason. There was a misstatement, but not of a material fact. In either event, the sum claimed to be due was due. And that was the material fact. Whether due for the reason stated in the lien or for the one stated in the complaint, the rights of
We think the name of the owner of the premises is stated in the liens as fully as the law required it to be.
In other respects we think the liens filed were substantantially in conformity with the statute.
Judgment and order affirmed.
McKee, J., Thornton, J., and Myrick, J., concurred.
Rehearing denied.