Logan v. Attix

7 Iowa 77 | Iowa | 1858

Wright, C. J.

The errors assigned relate alone to so much of the plaintiffs’ case, as asks a mechanic’s lien, and the action of the district court establishing the same.

The petition of plaintiffs did not entitle them to a mechanic’s lien, and it was error to establish it as prayed. We shall refer to but one defect, substantial, as we think, in its character. No contract is set forth, sufficiently showing the foundation of the plaintiffs’ right to a lien. It is stated .that a contract was made, but when — what were its terms — what work was done — what work was to be done— or what materials furnished — is not stated, nor attempted to be. No account, or bill of particulars, is attached to the petition. The absence of such an averment left the petition defective. Greene & Bro. v. Ely, 2 G. Greene, 208. The giving of the notes would not defeat the right to a lien ; and they may be properly taken as the amount actually due, and of the time of payment; but the contract under which the work was done, and the materials furnished, is a different thing; and it is that which the law requires to be set forth. Code, section 985. It is from this that the court is to judge whether the applicant comes within the law, and is entitled to a lien. The remedy given by the statute is in derogation of the common law, and should be strictly followed. 2 G. Greene, 510; Redman v. Williamson et al., 2 Iowa, 488; Dewey v. Fifield, 2 Wisconsin, 73; 2 Ib., 224. As the petition is a statement of the facts upon which the plaintiffs rely, it should state all the circumstances substantially necessary for the support of the action.

Without noticing the other points made, we think, for the reasons above stated, that the judgment should be reversed, and cause remanded, with leave to amend.