99 Cal. 617 | Cal. | 1893
This is a consolidation of eight actions to foreclose liens under the mechanic’s lien law against defendant, Thomas Norton, the owner of the building in question, and Thomas Helm, original contractor. Judgment went for all the plaintiffs except Knight, and Norton appeals from the judgment and from an order denying his motion for a new trial. The case was here on a former appeal. (Reed v. Norton, 90
As a fact the complaints—all except that of Schwartz, Beebee & Co.—■ expressly aver that there was no contract between Norton and Helm. The averments are that the last-named persons did sign a written contract by which Helm was to construct the building for five thousand five hundred dollars, but that neither the contract nor a memorandum thereof was recorded before the work was commenced, or at any time; and that Helm was merely the “agent” of Norton, and as such agent bought tire materials for which the liens were filed. When the remittitur went down after the first appeal the complaints were not amended so as to aver a valid contract between defendants Norton and Helm; but for the purpose of furthér fortifying the original position that there was no such valid contract, each of the complaints was amended by adding thereto a clause averring that “ said defendants mutually agreed to and did abrogate, cancel, and annul said contract”; that after work had been commenced Norton filed in the recorder’s office “what purported to be a memorandum thereof, but which was not a memorandum of the same,” and that they merely conspired together to pretend that the contract price was only five thousand five hundred dollars, whereas the reasonable value of the materials aud labor was nine thousand dollars. At the trial
We do not see how the judgment can be affirmed Avithout violating well-settled principles. “A plaintiff must recover, if at all, upon the cause of action set out in the complaint, and not upon some other, which may be developed by the proofs.” (Mondran v. Goux, 51 Cal. 151.) “The consequence of a variance between the averments in a pleading and the proof are the same under our system of practice as at common law, except that they may be, to a great extent, obviated by amendments to pleadings, which are allowed with great liberality.” (Stout v. Coffin, 28 Cal. 65. See also Johnson v. Moss, 45 Cal. 515; Goss v. Strelitz, 54 Cal. 641.) In the complaints in the case at bar the respondents’ causes of action are based upou averments
The respondents, Schwartz, Beebee & Co., aver in their complaint that they sold the materials for which they claim their lien directly to the appellant Horton, and contracted with him personally. The court finds this averment to be true. It also finds all the other issues as to the liens of these respondents in their favor; and as there is a fair conflict of evidence as to these issues, the judgment so far as it relates to these respondents should stand.
The judgment and order denying a new trial are reversed and the cause remanded, except as to that part of the judgment which is in favor of respondents, L. Schwartz, W. L. Beebee, and A. Jones, and as to said last-named respondents, the judgment and order appealed from are affirmed.
De Haven, J., and Fitzgerald, J., concurred.
Hearing in Bank denied.