Palmer Lumber Co. v. Stern ( 1910 )

Kruse, J.:

The action is to foreclose a mechanic’s lien. The defendant owner demurs to the plaintiff’s complaint upon the ground that it fails to state facts sufficient to constitute a cause of action. The County Court sustained the demurrer, and the plaintiff appeals.

The precise ground upon which the demurrer was sustained is, as I understand it, that the complaint fails to allege specifically that the amount of plaintiff’s claim or some part of it was unpaid at the time the notice of lien was filed, or that it was earned after the filing of the notice, the plaintiff having furnished material to the defendant contractor who erected the building on the premises in question for the defendant owner.

It seems to me that the complaint states facts sufficient to show that the plaintiff, is entitled to the foreclosure of its lien and the relief asked for as against the owner, as well as the contractor considering the complaint as a whole. It alleges that the defendant contractor entered into a contract with the owner' for erecting the house, and that the contractor should be paid therefor $6,252.50; that the plaintiff entered into a contract with the defendant contractor whereby it agreed to furnish and deliver to it certain lumber for the sum of $1,234.10, which the defendant contractor agreed to pay therefor upon delivery ; that the lumber was so furnished and delivered and used in the construction of the building except to the amount of $86.80; that $600 was paid on the bill on October 27, 1909, and that there remains due and unpaid the sum of $547.30, which became due on the 30th of October, 1909, and is now due the plaintiff. It alleges the filing of the lien on the 6tli of November, 1909 ; that the contractor duly performed all the conditions of its contract and so far completed the same as to be entitled prior to the commencement of the action to receive thereon a sum in excess of the amount of plaintiff’s claim, and that prior to the commencement of t-lie action there was due to the defendant contractor from the defendant owner a sum in excess of the amount of the plaintiff’s claim.

I do not think it was necessary tó allege that the amount or some part of it was unpaid at the time the notice was filed, nor that it was earned after the filing of the notice, because if it was unpaid at the commencement of the action (which was after the lien was filed) the plaintiff is entitled to enforce its claim against the owner, whether it was earned before or after the notice of lien was filed.

Neither do I think it necessary to allege the exact amount which is unpaid and due the contractor. As regards the plaintiff it is only necessary that there is due and unpaid to the contractor an amount equal to the plaintiff’s claim.

The complaint alleges that no other persons have filed liens and that there are no subsequent liens or claims by judgment, mortgage or conveyance against the property.

The demurrer should be overruled, with costs, with leave to defendant to plead over on the usual terms.

All concurred, except Spring and Robson, JJ., who dissented, in an opinion by Spring, J.