298 P. 104 | Cal. Ct. App. | 1931
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *396 This is an action for the foreclosure of two mechanics' liens for labor and material furnished by plaintiff and his assignor, A.H. Joffee, in the construction of a duplex residence on the property known as 6208 West Sixth Street, Los Angeles. In addition to the respondent Dale, A.C. Jenking and wife, who were alleged to be the "owners or reputed owners" of the property, were made defendants, and as to such alleged owners the complaint contains the allegations usual in such an action. The judgment recites that the action was dismissed as to the defendants Jenking on motion of plaintiff; that defendant Dale moved that no evidence be received as to him and that evidence be excluded as to him upon the ground that the complaint stated no cause of action against him, which motion was granted; that defendant Dale then moved for judgment "upon the pleadings and upon all of the record and proceedings in said action", which motion was likewise granted by the court, judgment following in favor of the moving party. Plaintiff appeals.
[1] A motion by the defendant for judgment on the pleadings tests the sufficiency of the complaint. "All the facts alleged in the complaint are admitted for the purposes of the motion, and the court is to determine whether those facts constitute a cause of action." (Hibernia S. L. Soc. v. Thornton,
Appellant apparently contends (1) that Dale was a joint venturer in the construction of the building with the Jenkings, although a beneficiary under a trust deed on the property, (2) that he is estopped from setting up his title under foreclosure of his trust deed; and (3) that his property is liable under an agreement made with the defendants Jenking for the benefit of plaintiff and his assignor.
Appellant relies upon the case of City Lumber Co. v. Brown,
[6] As to appellant's third contention, evidently based upon the allegation that Dale would upon the completion of the building cancel his trust deed and "negotiate a larger trust deed" sufficient to pay off his own "and the unpaid material and labor bills" and free said property from all encumbrances except such larger trust deed and the building loan, and the further allegation that at the time the lease was made to him by the Jenkings respondent paid Mr. Jenking $200 cash and agreed to pay the necessary bills to complete the building, such promises would seem to be personal only, and we fail to see how that could make Jenking Dale's agent so that his contracts would bind him as to any future interest in the property which he might obtain by a sale under his trust deed; and there is no allegation that plaintiff and his assignor knew of such agreements, and relying thereon either began or continued work under such contracts, so no estoppel in that regard is alleged. [7] So far as the right to proceed against Dale personally is concerned, it is sufficient to say that, even assuming such a cause of action is sufficiently alleged, appellant in his brief expressly says that "no personal judgment has been asked against respondent, although the appellant was undoubtedly *401 entitled to ask and receive a personal judgment", and that "the sole question presented is as to whether the interest of Dale in the property is subject to appellant's liens".
Judgment affirmed.
Craig, Acting P.J., and Thompson (Ira F.), J., concurred.