125 Cal. 224 | Cal. | 1899
Action to recover for balance due on contract for repairs, labor, et cetera, and to have the same declared a lien on premises described in complaint. Judgment for plaintiff. Defendant appeals from the judgment on the judgment-roll alone. The principal point on which defendant relies is the order of the court below overruling defendant’s demurrer to the complaint. The complaint was in two counts, and alleged in substance: That on the twenty-fifth day of August, 1896, the plaintiff entered into a written contract with defendant by the terms of which plaintiff was to make certain improvements and changes in the building known as the Baldwin Hotel, situate in the city and county of San Francisco, upon the premises described in the complaint, for the sum of three thorn sand dollars, to be paid as follows: Seven hundred and fifty dollars when the basement should be ready for plastering, seven hundred and fifty dollars when the plastering should be completed, seven hundred and fifty dollars when all should be completed and accepted, and the final payment, “seven hundred and fifty dollars, thirty-five days after completion and date of acceptance, provided said building and premises were free and clear from any and all liens and incumbrances arising from or created or placed thereon by the said contractor or any person claiming to have furnished him labor or materials for the erection and completion of said work.” That the work was fully completed, according to the contract, on December 8, 1896, and that fifteen hundred dollars had been paid, and no more. That on the fourth day of January, 1897, plaintiff duly filed his notice of lien with the county recorder, which notice stated the statutory requirements. That the premises described in the complaint were necessary for the convenient use and occupation of the building thereon. The second count alleged that the plaintiff did certain extra work at the request of defendant of the reasonable value of two hundred and seventy-five dollars, no part of which had been paid, and contained like allegations as to description, filing of lien, et cetera. The complaint and each count thereof was demurred to upon the ground that it did not state facts sufficient to constitute a cause of action.
Moreover, the demurrer was general, and in such case it should be overruled if the complaint entitles the plaintiff to any relief. (Fleming v. Albeck, 67 Cal. 227.)
It appears to us that this appeal is entirely devoid of merit, .•and we advise that the judgment be affirmed.
Gray, C., and Chipman, C., concurred.
For the reasons given in the foregoing opinion the judgment is affirmed.
Garoutte, J., Van Dyke, J., Harrison, J.