Pearce v. Albright, No. 1046

No. 1046 | N.M. | Mar 3, 1904

OPINION OF THE COURT.

MILLS, C. J.

This is a suit brought to foreclose a mechanics’ lien for work and labor done and the furnishing of materials used in repairing a house. The work and labor was done and the materials furnished at the instance of one Dolly Monbars, lessee of the appellant, Mrs. Albright, who owned the property. The evidence shows and the court below found, that the owner of the property knew that the materials were being furnished and the repairs being made, and that she did not post the notice on the property within three days required by section 2226 of the Compiled Laws of 1897, that she would not be responsible for the same.

To the complaint a demurrer was filed, of which it will be necessary for us to consider only two of the grounds set up in it, to-wit:

(1) That the notice of lien was defective, in that it did not contain a statement of the terms, time given, and condition of the plaintiff’s alleged contract, and (2), that the alleged notice was not signed with the legal name of any person, it being signed by F. L. Pearce.

If the first ground of demurrer was true in fact the complaint should have been dismissed, but an examination of the lien discloses that- it does contain a statement of the terms, time given, and condition of the contract. It shows that the contractor Pearce, on or about December 20, 1900, entered into a verbal contract with Dolly Monbars, the occupant of the premises, to perform the. labor and furnish the materials for the repair of the property in question for the sum of $200, and that after-wards, at her request, be did other work and furnished additional materials outside of the contract price to the extent of $14.25; and that all of said labor was done and materials furnished between December 20, 1900, and January 30, 1901. That payments were to be made as the work progressed, and the balance on the completion of the contract. That $122 bad been paid on account, leaving a balance due of $92.25, after allowing all just credits and off-sets. This lien is sworn to by F. L. Pearce, and a statement of bis account is attached thereto. We think that this notice of lien meets the objections raised by appellant.

2 As to the second ground of the demurrer the appellant does not produce a single authority to sustain bis contention, that the notice of lien is bad, because when it was signed and verified, the appellee used the initials of bis Christian name, instead of signing it in full. Christian and surnames are used to identify individuals, and to distinguish them from each other, and the initials E. L. when the surname is written out in full sufficiently identifies the party using them.

We are aware that at common law a pleading describing parties by the initials only of their Christian names, was bad on special demurrer, but we think that this is not the modern rule, and that no written instrument should be regarded as a nullity, solely because the Christian name is designated by initials instead of being-written out in full. Ferguson v. Smith, 10 Kan. 396" date_filed="1872-07-15" court="Kan." case_name="Ferguson v. Smith">10 Kan. 396. The use of initials only instead of writing out the Christian name of a person in any legal instrument is a practice not to be commended.

The court purposely overruled the demurrer, and after the overruling of the demurrer the defendant below (appellant herein) filed an answer, and the attorney for the appellee filed a motion to strike out the greater part of it, and a demurrer. This motion and demurrer were in one paper, and so far as the record shows were never acted on by the court, as the next step taken in the case, as shown by the transcript, was the hearing of evidence by the court. This hearing was on November 29th, and December 2, 1902. The evidence was gone into quite fully.

3 Two of the objections raised by the appellant are that the court below erred in hearing the cause and giving judgment while the motion to strike out parts of the answer and the demurrer to the answer were pending. This motion and the demurrer were not filed by appellant, but by the appellee, and by the failure of the court to pass upon them the appellant was not injured and can take no exception to the court’s not having done so. The appellee alone could have objected to the action of the court in going to trial leaving this motion to strike out and the demurrer undisposed of. Orange County Fruit Exchange v. Hubbell, 10 N. M. 58; Bethel v. Matthews, 13 Wall. 1" date_filed="1872-02-12" court="SCOTUS" case_name="Bethell v. Mathews">13 Wall. 1.

4 This case was tried by the court without a jury, neither party objecting or excepting, although both were present personally and by attorney, and presumably they wished for a hearing. Attorneys for each side examined and cross-examined the several witnesses placed on the stand, and after hearing the entire evidence the court found the issues in favor of the plaintiff. As no objection was taken or exception saved to proceeding with the trial without a jury, it is too late for the appellant to first raise the point on appeal to this court that the record does not show a jury was waived.

5 There is nothing in the. objection that the court erred in giving judgment for attorneys’ fees when there was no evidence introduced to show.what was a reasonable attorney’s fee. All the judges now on this bench have been practicing attorneys in the past, and they are presumed to know something as to the value of attorneys’ fees. The value of attorneys’ fees can be found by the court in the absence of any evidence on that point. Pac. Mutual Life Ins. Co. v. Fisher, 106 Cal. 224" date_filed="1895-03-08" court="Cal." case_name="Pacific Mutual Life Insurance Co. v. Fisher">106 Cal. 224; Watson v. Sutro, 103 Cal. 169" date_filed="1894-06-19" court="Cal." case_name="Watson v. Sutro">103 Cal. 169.

6 We incline to the opinion that the court below erred in ordering execution to issue against Frank E. L. Al-bright, if the property on which the lien attached, when sold did not bring enough to satisfy the judgment, for there is nothing in the record to show any personal liability on the part of Mrs. Albright. This error is however cured, by reason of the appellee having filed a disclaimer waiving any personal judgment against Mrs. Franc. E. L. Albright.

There is no error in the judgment complained of and the case is hereby remanded to the district court of Bernalillo county with instructions to modify the judgment heretofore entered in this cause so as to conform with the disclaimer filed by the defendant, and it is so ordered.

Parker, and McFie,-JJ., concur. Baker, A. J., having tried the case below, took no part in this decision.