Hicks v. Murray, 43 Cal. 515

Hicks v. Murray

43 Cal. 515 | Cal. | 1872

Lead Opinion

*521By the Court,

Wallace, C. J.:

First—Upon a careful consideration of the Act of March 30th, 1868, securing a lien to mechanics and others, in connection with the facts of this case, we are of the opinion that the objections made in argument, as to the constitutionality of the Act, cannot be maintained.

Second—The objection that the claim of Browne is npt signed by him cannot be supported. His signature to the verification attached thereto is a sufficient signing of the claim within the intent of the Act.

Third—But we think that the amended answer and cross complaint of Browne is radically defective and insufficient to support the judgment he obtained. The statute (section five) requires that the claim for the benefit of the lien shall state, among other matters, the name of the owner or reputed owner of the premises, if known. The statement of the name of the owner or reputed owner is material—not less so than the statement of the amount of the demand after the deduction of just credits and offsets—the statute requires both and makes them equally indispensable. The pleading of Browne wholly omits to aver that his claim as filed contains the required statement upon the point of ownership. The averment, even had there been such, that the premises are those purchased by Murray of Mrs. Lewis, and are the same premises occupied by him, is not in substance an allegation upon the point of ownership or reputed ownership. But there is no such averment in the answer and cross complaint of Browne. The only allegation found there in this respect is an allegation that in his claim as filed he described the premises as those so purchased and occupied by Murray. Upon general demurrer this must have been held insufficient as a substantial allegation of ownership, or reputed ownership, of the premises at the time of the commencement of *522the action. It is true that we can see that the statement itself is not defective in the particular of ownership—but this will not aid the pleading upon the point. By the tenth section of the Act the pleadings in such cases as this are required to be the same as in other cases. It has so often been determined that unless the facts essential to the support of the case be alleged upon the record, evidence upon such omitted facts cannot be heard or considered, that a citation of authority upon the point is unnecessary. Evidence of , facts, or stipulations as to the facts of a case, cannot make the case broader than it appears by allegation, nor can a party by mere force of facts admitted or proven become entitled to relief to which he would not have been entitled had his case been resisted only by general demurrer interposed to the pleadings upon which he relies.

The judgment is reversed and the cause remanded for further proceedings.

Dissenting Opinion

Crockett, J.,

dissenting, in part:

The claims or statements filed in the Becorder’s office by the material men and laborers, for the purpose' of securing their liens, were substantially in compliance with the statute. When materials are furnished and labor performed under one contract for a gross sum, it is not only unnecessary but would be impossible to specify in the statement or notice of lien how much of the sum due accrued for materials furnished, and how much for labor performed. The contract being that the whole were to be paid for by a gross sum it is unnecessary to apportion the amount between the two. (Heston v. Martin, 11 Cal. 41; Brennan v. Swasey, 16 Cal. 141; Selden v. Meeks, 17 Cal. 128; Davis v. Livingston, 29 Cal. 283.) Hor is it necessary that the statement should be signed by the claimant, provided it appears in the body of the statement who the claimant is and by whom the materials were fur*523nished or the labor performed; and provided, also, the statement is verified by the claimant. These would sufficiently identify the claimant and authenticate the statement without the actual signature of the claimant to the body of the statement. No useful purpose could be subserved by his signature to the body of a statement which he verifies with his oath. Nor is it essential that it should appear on the face of the statement in express terms that the materials furnished were actually used in the construction of the building. The language of the first section of the statute is that any person “ furnishing materials of any kind to be used in the construction, alteration,” etc., “ of any building,” etc., shall have a lien thereon; and the fifth section prescribes the method by which the lien is to be secured. It requires the person claiming the lien “ to file with the County Recorder of the county in which such building or other improvement, or some part thereof, shall be situated, a claim containing a true statement of his demand, after deducting all just credits and offsets, with the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed or to whom he furnished the materials, and also a description of the property to be charged with said lien sufficient for identification, which claim shall be verified by the oath of himself or of some other person. (Stats. 1867-8, p. 589.) In Davis v. Livingston, 29 Cal. 283, a similar question arose under the Act of 1862, and it was held that the notice from the material man to the owner need not specify that the materials furnished were actually used in the building. The statute we are considering does not require that the statement shall aver in terms that the materials furnished were actually used in the building. But if it did, I think it sufficiently appears from the verified statement of the defendant Browne that the lumber furnished by him was in fact used in the building. It appears on the face of the statement that he commenced to furnish the lumber in November, *5241869, and that the greater portion thereof was furnished before the 10th day of March, 1870, on which day the owner of the building entered into a written contract to pay Browne for all the lumber furnished by him for the building within six months from the 10th day of February, 1870. I think the inference is irresistible that the lumber furnished by Browne was actually used in the building. It is claimed, however, on behalf of the appellants, that the averments in Browne’s cross-complaint are so defective, in substance, as not to support the judgment in his favor. The alleged defect consists in the omission to aver in the pleadings that his statement filed in the Recorder’s office set forth the name of the owner of the building or land. The agreed statement of facts on which the action was tried, shows that the verified statement was not defective in this particular; and, if the pleading was not as full and explicit as it might, and perhaps should have been, in setting forth the contents of the verified statement in this respect, it is too late, after judgment, to raise this point for the first time in this Court.

The averments of the cross-complaint in respect to the contents of the verified statement filed by Browne are, that it contained “a true statement of his demand against said defendant Murray, after deducting all credits and offsets, with a correct description of the premises to be charged, which said description is as follows, to wit: the two-story frame or wooden dwelling house or building, divided into eleven rooms, with eighteen doors and eighteen windows, erected, upon the lots or lands heretofore named, and here more particularly described as the land purchased by said R. J. Murray of Mrs. A. Lewis, and situated at the junction of Lewis and Railroad streets, in said Town of Gilroy, and on the east side of said Railroad street, and running sixty-four feet along the same, one hundred and forty feet along the south side of said Lewis street; said building and premises being the same now occupied by the said Murray and *525his family.” The cross-complaint, it is true, contains no direct averment that the verified statement set forth the name of Murray as the owner, or reputed owner, or that the owner was unknown; nevertheless, it sets forth the description of the premises as contained in the verified statement in which the lot is described “ as the land purchased by said B. J. Murray of Mrs. A. Lewis,” and it further shows that “the said building and premises” are “the same now occupied by the said Murray and his family.”

The statute prescribes no formula for the verified statement; but simply directs that it shall contain “ a true statement of his demand, after deducting all just credits and offsets, with the name of the owner, or reputed owner, if known,. and also the name of the person by whom he was employed or to whom he furnished the materials, and also a description of the property to be charged with said lien sufficient for identification.”

The verified statement, as described in the cross-complaint, sets forth that the lot is the same purchased by him of Mrs. Lewis, and the natural inference is that Murray continued to be the owner; and more particularly when this is coupled with the further fact that Murray caused the building to be erected, and on its completion occupied it with his family, all of which facts appeared from the verified statement as described in the cross-complaint.

If the pleading was defective in the particular referred to, it was defective in form only and not in substance. Such defects can be reached by special demurrer only, .and the objection to such a pleading cannot be raised for the first time in this Court. I am, therefore, of opinion that the cross-complaint is sufficient to support the judgment.

We are also urged to hold the Act of March 30th, 1868, securing a lien to mechanics and others, to be unconstitutional in several of its provisions; but after a careful consideration of the argument of counsel, I see no reason to doubt *526the constitutionality of the statute in the particulars which are specified; and even though I entertained a grave doubt on the subject, this would, not justify me in holding the Act to be void. Statutes are set aside by the Court as unconstitutional only in clear cases, where there is no room for reasonable doubt.

I am of the opinion that the judgment should be affirmed.