The facts are stated in the opinion. Action to enforce a lien for labor performed by plaintiff upon the "Two G." mine described in the complaint. Appeal from judgment and order overruling defendant's motion for a new trial. The following facts are undisputed: When plaintiff performed the work, and up to and including the time of trial, defendant was the owner of the legal title to the premises in question, the same having been conveyed to him by sheriff's deed. Before plaintiff commenced work, Henry Roddick entered into a contract with N. S. Trowbridge Co., whereby the latter agreed to furnish the Two G. mine for the use of the former, who undertook to extract ores upon certain agreed terms. Roddick worked the mine under the contract. He had charge of the mine and work; employed and discharged the men, including the plaintiff. Defendant and the other members of the firm had knowledge of the contract, and of the work and improvements being done on the mine, but no notice was ever posted as required by section 9 of the lien law, (Gen. Stat., 3816) In the lien claim filed, and in the complaint, it was stated and alleged that defendant, N. S. Trowbridge, was the owner, and that plaintiff was employed by Roddick as the agent of defendant. In his answer defendant denied that he was owner, or that Roddick was his agent, or the agent of N. S. Trowbridge Co., or that plaintiff performed any work for him or the firm, in or upon said mine, or that he was employed by either; but he admitted that Roddick, having charge and control of the mine under the agreement, employed plaintiff upon certain terms stated, and that plaintiff performed the labor for Roddick. He alleged that plaintiff was employed by Roddick to work for him, and not for defendant or the firm, and that plaintiff so understood his contract of employment, and that he performed his work knowing that Roddick was not the agent of defendant or of the firm. In addition to the above, defendant alleges, in substance, as follows: That, at the times mentioned in the complaint, N. S. Trowbridge, Morton C. Fisher, and J. M. English were partners carrying on mercantile business under the firm name of N. S. Trowbridge Co.; that, prior to the execution of said contract between the firm and Roddick, N. S. Trowbridge Co. purchased said property at sheriff's sale, and, before plaintiff had concluded his work, received a deed therefor, *110 duly executed and delivered by the sheriff; that ever since said time said firm has owned, and now owns, said property; that defendant now holds, and at all times has held, the title to said property in his name, in trust for the firm of N. S. Trowbridge Co., and that plaintiff knew the same; that said property was purchased at sheriff's sale with, and paid for out of, the partnership funds of N. S. Trowbridge Co., and for partnership uses and purposes. The answer showed that at the time the lien was filed the partnership no longer existed, the period during which it was to continue having passed. There is no allegation or proof of any partnership indebtedness.
1. On motion of plaintiff the court struck out the portion of the answer alleging the partnership, the ownership of the mine by the firm, the holding of the title by defendant in trust for the partnership, and the knowledge thereof by plaintiff, on the ground that the same constituted no defense to the action. The action is against defendant, one of the alleged partners, for the purpose of enforcing the lien against defendant's interest in the premises described. True, a personal judgment against defendant, in case of deficiency, was prayed for in the complaint, and granted by the court in the original judgment; but the personal judgment is not contained in the judgment as modified from which the appeal is taken. Would proof of the allegations struck out have defeated plaintiff's action, in whole or part, or did the expunging of those allegations deprive defendant of any material defense that he was entitled to make? We shall not stop to inquire whether defendant, being in the situation stated, is such a representative of the other persons named, his former partners, as that a decree against him, and a sale thereunder, would be binding upon them as well as himself. That question is not in the case. In Gould v. Wise,
Our lien law makes no provision concerning parties. It only provides that "said liens may be enforced by an action in any court of competent jurisdiction on setting out in the complaint the particulars of the demand, with a description of the premises to be charged with the lien;" but the provisions of the civil practice act are applicable to actions of this kind, as they are in cases for the foreclosure of mortgages. A mechanic's lien is a charge on real estate, created by law, in the nature of a mortgage, to secure the payment of money due for work done thereon, or materials furnished therefor. (Otis v. City ofBoston, 12 Cush. 441.) The foreclosure of a mechanic's lien is subject to the same rules as foreclosure of a mortgage, as respects parties. *113
(Whitney v. Higgins,
Our opinion is that defendant's former partners were not necessary parties defendant in this action to enforce plaintiff's lien against defendant's interest, and that proof that other persons were equitable owners would not have defeated the action. Defendant was the "owner" of the entire legal title, and the "owner," in law and equity, to the extent of his interest in the partnership; and plaintiff had the right to enforce his claim against such interest if he was satisfied to do so. (Garrett v. Stevenson, 3 Gilman, 280; Miller v. Faulk,
2. The statute provides that when the notice designates, as the ground upon which the motion for a new trial will be made, insufficiency of the evidence to justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient and that if no such specification be made, the statement shall be disregarded. (Civil Pr. Act, Sec. 197.) The authorities are uniform to the effect that, under this statute, the statement must particularly specify the errors relied on, and wherein the evidence is insufficient, and that only the points so specified can be considered on *116
appeal. Outside of the authorities this must be as stated, because the statute also provides that "the statement shall contain so much of the evidence, or reference thereto, as may be necessary to explain the particular points thus specified, and no more." This is so even though the statement contains all the evidence, as in this case. (Brumagim
v. Bradshaw,
Referring now to the first specification of insufficiency of evidence, and admitting, for the sake of the argument, that in order to sustain the decision the court must have found as a fact that "Henry Roddick was the agent of defendant in the management of the mine," still the two findings are not inconsistent or contradictory. The facts stated in both findings are (1) that Roddick and Trowbridge Co. entered into the contract testified to by defendant, that is to say, Roddick agreed, upon certain terms, to take out ore, and deliver it to Trowbridge Co.; and (2) that, while so engaged, he was agent of defendant in the management of the Two G. mine. It is not denied that the first finding referred to is correct. It is what defendant sought to establish. But the claim is that the second one is not correct, and is inconsistent with the first. The first is the result of undisputed testimony without reference to the statute; and the second results from the fact, also undisputed, that plaintiff performed his labor at the instance, and under the employment of Roddick, who had charge and control of the mine, and whom, for that reason, section 1 of the statute made the owner's agent. Roddick did perform all his work under the contract, but, so far as plaintiff is concerned in the matter of the lien, he was the agent of any and all owners of the mine. Roddick did not have authority to employ plaintiff for Trowbridge Co. directly; but he had *118 power to complete the employment for himself; and thereby bind the interest of all owners and claimants if they did not post the notice provided by section 9 of the lien law.
Finding No. 2 of the jury is supported by uncontradicted evidence. As to No. 3 there was a conflict. But on the hearing of the motion for a new trial the court was of the opinion that that finding was wrong; that plaintiff was informed of the contract, and that he did perform his work thereunder. To correct the result of the error the court proposed to grant a new trial, unless plaintiff consented to a modification of the judgment so as to allow him three dollars a day, that being the amount plaintiff was entitled to receive according to the court's construction of the Roddick contract. Plaintiff consented to this modification and to the striking out of the personal judgment against defendant, in case of deficiency, and thereupon a new trial was denied. It is claimed that the judgment as modified is not correct, that plaintiff was entitled to receive only two dollars and seventy-nine cents a day. We think this view is correct, and will dispose of the matter further on.
Our conclusion is that none of the assignments of error on the ground of insufficiency of evidence, etc., are well taken, except as to No. 3, and it follows that we must presume in all other respects there was sufficient evidence to support all findings that, under the pleadings, must be implied in order to support the decision.
3. It is next urged that, for certain reasons given, the court erred in permitting plaintiff to testify as to the value of his services. The statement contains the following record: "Question. What was the work reasonably worth? Objected to by defendant. Overruled, and excepted to." The statement also shows that the grounds of all the exceptions of the defendant taken upon the trial are contained in the assignment of errors herein." It is by no means certain that an objection to this question should have been sustained, even though it had been properly taken, (Parker
v. Savage Mining Co.,
4. The court did not err in striking out the following question asked plaintiff on cross-examination, together with his answer thereto: "Do you not know for a fact that the same parties who comprised the firm of N.S. Trowbridge Co., at the time you worked, owned the Two G. mine? Yes." In the first place it was immaterial that plaintiff then knew the fact to be as stated. That would not have tended to show that he knew it when he did the work, when he filed his claim of lien, or when he brought suit. But if our conclusions are correct in relation to the court's order striking out a portion of the answer, it must follow that it was not error to strike out this question and answer also, or to refuse to allow defendant to answer the question, "Who are the owners of the Two G. mine?"
5. In view of the order we shall make touching the amount due plaintiff, and for which he may have a lien against defendant's interest, it is unnecessary to consider the errors of law specified in defendant's sixth assignment.
6. Defendant offered in evidence the written contract between N.S. Trowbridge Co. and Roddick referred to above, but the court refused to admit it. In view of the allegations in defendant's amended answer, and of his claim that plaintiff's per diem was to be governed by that contract, we think the court erred. But the record shows that subsequently, without objection at the time, defendant testified to the terms of the contract, — the same as those set forth in the written contract, that thereupon plaintiff objected to this testimony, and the objection was sustained. But there was no motion made to strike out the oral testimony of the terms of the written contract, nor was it stricken out. The record also shows that one of the questions submitted to the jury was, "Did N. S. Trowbridge Co. make and enter into a contract with one Henry Roddick with the terms as testified by the defendant, N. S. Trowbridge? *120
Yes." Thus it is shown that the oral testimony of defendant was considered by the jury, that they found in favor of defendant upon the question, and that the court adopted the finding of the jury. The defendant could not have been injured by the rejection of the written contract. (Richardson v. Hoole,
7. The court did not err in refusing to permit Roddick and Brown to testify to the, effect that they gave plaintiff personal notice that neither defendant nor N. S. Trowbridge Co. would be responsible for any indebtedness contracted or accruing for work done under the Roddick contract. It is said if such notice was given it was not necessary to post written notice on the mine, as required by section nine of the lien law, and that, if plaintiff continued work after receiving personal notice, he waived his lien. We do not think so. The statute declares that the interest of every owner or claimant shall be subject to any lien filed in accordance with its provisions, unless such owner or claimant, after obtaining knowledge, etc., shall, within a certain time, post a certain notice in a place specified. The legislature has seen fit to limit persons owning or claiming any interest in property mentioned in section nine, to one method of giving notice if they wish to escape the effect of liens. We cannot supply others. This question has been decided in many cases, and, so far as we know, against the views of counsel for defendant. (Gay v. Hervey,
8. Acting in accordance with the provisions of section 198 of the practice act, which requires the court or judge granting or refusing a new trial to state, in writing, generally, the grounds upon which the new trial is refused or granted, the court stated as follows: "I think, as a matter of law and fact, plaintiff knew of the contract between N. S. Trowbridge Co. and H. Roddick, and performed the work herein under such contract, and thereby became entitled to his lien for such labor rendered, as was proven in this cause to-wit, one hundred and thirty-one and one half days at three dollars per day, the same being the amount that N. S. Trowbridge Co. were to pay the employees of H. Roddick who worked and performed labor in extracting *121
ore from the Two G. mine." This opinion, or these reasons, given by the court, are in no sense findings. The court had no power at that time to change its findings. But it had the right, and such was its duty, to grant a new trial for any material error committed at the trial, or, by plaintiff's consent, to modify the judgment so as to remove all possible injurious effects of the error. (Hawkins v. Reichert,
The court undertook to modify the judgment as to the amount plaintiff was entitled to receive according to the terms of the Roddick contract, but it did so in part only. According to that, and the uncontradicted testimony as to the amount and value of the ore taken out by Roddick, plaintiff was entitled to receive only two dollars and seventy-nine cents per day. The court reduced the judgment from two hundred and fifty-six dollars and twenty-eight cents to one hundred and ninety dollars and eighty-eight cents, when, from the court's view of the facts, it should have been reduced to one hundred and fifty-six dollars and twenty-eight cents.
9. It is urged that the court, in its decree, should have limited plaintiff's lien to defendant's interest in the property, and that only such interest should have been ordered sold to satisfy the judgment. It is certain that plaintiff is not entitled to a sale of anything beyond defendant's interest in the property described. It does not seem that, under the statute, (Gen. Stat. 3253, 3882,) any interests other than defendant's can be sold, or that the purchaser can acquire anything beyond the "right, title, interest, and claim" of the judgment debtor, (McCormack v. Phillips, 34 N. W. Rep. 60;) but it is best to remove all doubts in the premises.
It is ordered that plaintiff have fifteen days within which to file, in the court below, consent in writing, to a modification of the judgment appealed from, as hereinbefore expressed; and, upon such consent being filed, the court below is directed to modify the judgment accordingly, and, also, in the decree and order of sale to limit the property to be sold to the right, title, interest, and claim of defendant, N. S. Trowbridge; but, in default of filing such consent, that the judgment of the court below, and the order denying a new trial, be reversed, and a *122 new trial granted, defendant to recover his costs in either event.
I concur in the judgment.
I concur in the opinion, except the portions relating to the question of sufficiency of the notice to remove the property from the operation of the lien law. This question I do not consider presented, and upon it express no opinion.