130 P. 972 | Mont. | 1913
delivered the opinion of the court.
This action was brought to foreclose a statutory lien for a balance alleged to be due to plaintiff for services rendered'by him under a contract, by the terms of which he agreed to clear certain lands, situated in Ravalli county, belonging to defendant at a stipulated price of $25 per acre. Subsequent to the making of the original contract, its terms were, by mutual consent of the parties, extended so as to include other lands. The complaint alleges “that on the twentieth day of April, 1910, plaintiff entered upon the performance of said contract, and the defendant actually completed all of the work and labor to be by •him performed under said contract and did all of the things in said contract of him required to be done; that by reason of said work and labor performed defendant became indebted to said plaintiff for the clearing of eighty-eight acres at $25 per acre, making g total sum of $2,200, of which said amount defendant paid to the plaintiff $949, leaving a balance due- and owing and unpaid of $1,251, no part of which has been paid.” It then alleges the filing of the notice of lien with the clerk and recorder of the county within ninety days after completion of the work, as required by section 7291, Revised Codes. A copy of the notice of lien is attached to the complaint as an exhibit. The issue tried was whether the work had been performed by the plaintiff in accordance with the terms of the contract and had been so accepted by the defendant. The court found for the plaintiff, and that there was due him a balance of $651. It rendered a decree declaring this amount to be a lien on defendant’s lands, and ordered them to be sold to satisfy it. The appeal is from the decree.
It is contended that the complaint does not state facts sufficient to constitute a cause of action, in that it alleges “the defendant actually completed all of the work,” etc. This contention is without merit. It is apparent that the pleader, in
It is also argued that the complaint does not allege the performance of the contract on the part of plaintiff in terms sufficiently direct and certain. If the pleading be construed
The last contention is that the decree does not conform to the allegations of the complaint, and hence that the relief granted
Under the findings the plaintiff is entitled to a personal
The cause is therefore remanded to the district court, with' directions to set aside the decree, and, upon further proceedings not inconsistent with the suggestions herein, to ascertain what portion of the lands, if any, are sufficiently described in the notice to identify them. That court will then enter a decree declaring the balance found due plaintiff a lien thereon. If, upon such further proceedings, the description contained in the notice is found insufficient to identify any portion of the lands, the court will render and enter a personal judgment against the defendant for the amount found due, with costs.
Remanded, with directions.