Dickson v. Corbett , 11 Nev. 277 ( 1876 )

By the Court,

Beatty, J.:

This is the same case in which a motion to dismiss the . appeal was overruled at the January term, (10 Nev. 439.) Tbe appeal is from tbe judgment, and but one question arises upon tbe record: Did tbe court err in sustaining tbe motion of plaintiffs for judgment on tbe pleadings?

Tbe suit is to foreclose a mechanic’s lien and was commenced in a justice’s court. It is not pretended that tbe complaint does not state a case for tbe relief decreed. It alleges inter alia that tbe work was done and tbe materials furnished at tbe special instance and request of one J. J. Dennett, tbe agent of tbe defendant. No allegation of tbe complaint is denied in tbe answer, tbe defendant relying solely on tbe following plea: “Plaintiffs ought not to be allowed to maintain this action for that on tbe-day of May, 1875, they obtained a judgment for tbe same debt 'against J. J. Bennett in this court.” Tbe defendant bad judgment in tbe justice’s court, but on appeal to tbe district court the plaintiffs recovered a judgment on tbe pleadings, from which tbe defendant appeals; and the sole question for our decision is whether tbe plea, admitting it to be true, avoids tbe original liability which the defendant lias admitted by failing to deny tbe allegations of tbe complaint? We think it does not. Tbe fact that plaintiffs have recovered a judgment against Bennett only proves that Bennett made himself also personally liable on tbe contract which be entered .into on behalf of bis principal, which be may have done by failing to disclose bis agency or by tbe form of tbe contract. In such case Corbett is also liable, and an unsatisfied judgment against Bennett is no bar to an action against Corbett. Especially"is this so when tbe object of this proceeding is not to obtain a personal judgment against Corbett, but to enforce tbe lien upon bis property. He does not deny that bis property was subject to tbe lien, but plants liimself upon tbe bald proposition that tbe lien is extinguished by an unsatisfied judgment against bis agent. We have been cited to no authority, and we know of none which supports such a view. Appellant suggests in bis argument that Bennett was not bis agent, but bis tenant, and bad no authority to bind him or bis estate. If this is true, it should have been so stated in tbe answer. As tbe record stands, Bennett’s agency is admitted, and we can look to nothing else.

It is said to have been an error in the district court to make the decree without any testimony as to the part of the premises subject to the lien. But as to this matter, we think the complaint was sufficiently specific, and the decree follows it.

Judgment affirmed.