Ensele v. Jolley

THE COURT. This appeal is by the defendant from a judgment in plaintiff’s favor in an action to foreclose a materialman’s lien upon certain real estate described in the complaint as the northeast quarter of northwest quarter of section 3, township 43 north, range 6 west, M. D. M. The plaintiff alleged in his said complaint that he was the owner and proprietor of a certain retail lumber business known as the Grenada Lumber Company, under which name he was doing business; that he had furnished the defendant certain building materials for the erection of a barn and completion of a dwelling-house upon said premises, under an oral agreement with the defendant that the plaintiff was to furnish said materials for such purposes and that the defendant was to pay for the same the reasonable value .thereof. The plaintiff further alleged the completion of *299 said buildings, the amount and reasonable value of the materials furnished therefor, the failure of the defendant to pay for the same, the due filing of his lien upon the said lands and premises of the defendant, a copy of which lien was attached to and made a part of the complaint; and finally alleged the fact that the whole of the defendant’s lands and premises were required for the convenient use and occupation of the buildings so erected thereon. The defendant did not demur to the plaintiff’s complaint, but filed his answer thereto, and in his said answer, and as his first defense, denied that the plaintiff was the owner or proprietor of the business known as the Grenada Lumber Company, but that one A. L. Harlow was the owner of said business and was doing business under said name. The defendant followed this averment with specific denials that he had ever entered into any agreement with the plaintiff for the furnishing of any building material whatever for the erection of buildings. upon his said premises, or that said plaintiff had ever furnished any such materials, or that he had ever agreed to pay the reasonable or any value thereof. These specific denials ended in the following affirmative statement: “and defendant shows that all of the materials furnished or labor furnished defendant for the erection of buildings upon the property described in plaintiff’s complaint was furnished by one A. L. Harlow, all of which plaintiff well knows.” The answer of the defendant made no denial of the sufficiency in form or of the due filing of the claim of lien, nor did the defendant deny the plaintiff’s averment that the whole of the described premises would be required for the convenient use and occupation of the said buildings erected thereon. The cause went to trial upon the issues thus presented, at the conclusion of which the trial court made its findings of fact and conclusions of law in the plaintiff’s favor, following in its said findings specifically the averments of the plaintiff’s complaint, and adding the general finding that all of the allegations of said complaint were true. Judgment was entered upon said findings for the establishment and foreclosure of the plaintiff’s lien upon the whole of the premises described in the plaintiff’s complaint. From such judgment this appeal has been taken by the defendant upon the judgment-roll alone. The following three *300 contentions are urged upon this appeal: First, that the complaint does not state facts sufficient to constitute a cause of action; second, that the findings 'are not sufficient to support the judgment; and, third, that the judgment is against law in the respect that it adjudges that the whole of defendant’s premises should be subjected to the plaintiff’s lien. In support of the first of these contentions the appellant alleges that the complaint fails to sufficiently allege that the materials furnished by the defendant were actually used in the construction of the buildings in question, as the statute requires. [1] There can be no question that in order to entitle a materialman to a lien as against the owner of premises upon which a structure has been erected the materials must not only have been furnished to be used in such structure but must also have been used therein. (Code Civ. Proe., sec. 1183; Silvester v. Coe Quartz Mine Co., 80 Cal. 510 [22 Pac. 217]; Roebling Sons Co. v. Bear Valley I. Co., 99 Cal. 488 [34 Pac. 80]; Bennett v. Beadle, 142 Cal. 329 [75 Pac. 843].) [2] It is also well settled that the complaint whereby a lien for such materials is sought to be established and enforced must contain substantial allegations to the effect that the said materials were furnished for and to be used in, and that they were used in, the buildings in question. (Cohn v. Wright, 89 Cal. 87 [26 Pac. 643]; Wilson v. Nugent, 125 Cal. 280 [57 Pac. 1008].) [3] But, while these essential requirements of the statute must be shown to have been complied with in the plaintiff’s pleading, it is not necessary that the pleading should aver their existence in the precise terms or language of the statute. It is sufficient if, from a reading of the complaint as a whole, it can be fairly deduced that the plaintiff has conformed to the requirements of the statute in the respect that his materials under his agreement with the defendant were to be furnished for the designated structure, and that such materials were actually used in the construction thereof. Looking to the four corners of the plaintiff’s complaint in this action, we think that this deduction may be fairly drawn. He alleges that on or about the first day of May, 1919, he “entered into an oral agreement with defendant wherein and whereby the said plaintiff agreed to furnish certain building materials for the erection for the defendant of certain buildings [describing them] upon the lands and premises *301 hereinafter described.” He further alleges “that said buildings have been completed under said contract and all the materials agreed to be furnished by plaintiff have been furnished and said contract has upon the part of plaintiff been fully kept and performed.” He then alleges “that the lands upon which said buildings were so erected under said contract are situate,” etc. (here follows description), “that at the date of said contract mentioned abov§ and at the date of the furnishing of said materials and the performing of said labor as aforesaid othe said defendant Jolley was the owner of the lands hereinabove described; . . . that the said buildings were erected thereon, and defendant knew that plaintiff was furnishing materials as hereinbefore set forth.” Finally, he alleges “that plaintiff furnished said materials for said buildings between the first day of May, 1919, and the twenty-eighth day of July, 1919, and that all of said materials were furnished prior to the completion of said buildings and that the said buildings were completed on or about the first day of August, 1919.” [4] We deem the foregoing allegations sufficient, in the absence of a special demurrer upon the ground of uncertainty, to enable a reasonable inference to be drawn that the materials in question were agreed to be furnished for and were furnished for and were used in the construction of the designated structures upon the premises of the defendant sought to be charged with this lien. In addition to the foregoing averments in the body of the complaint, the plaintiff’s claim of lien was attached to it as an exhibit and expressly made a part thereof. In such claim of lien it was asserted that the materials for the value of which said lien was sought were furnished by the claimant to the owner of the described premises under an agreement to supply the same for the purposes of constructing and erecting a building or buildings upon said premises, and that the claimant did furnish such materials “to be used and which were actually used in the construction of said building or buildings.” [5] The answer of the defendant does not deny that the materials in question were furnished or that they were used in the construction of the buildings upon his premises, but merely denies that the plaintiff was the person who furnished the same, and in that behalf the defendant alleges that the owner or proprietor of the Grenada Lumber Company was *302 not the plaintiff, but was one A. L. Harlow, who was doing business under that name and “that all of the materials furnished defendant for the erection of buildings upon the property described in plaintiff’s complaint were furnished by one A. L. Harlow, all of which plaintiff well knows.” Such being the form and content of defendant’s answer, we think that whatever uncertainty there may have been in the plaintiff’s complaint in the respects indicated in the defendant’s present contention was waived by the defendant’s failure to present a special demurrer upon that ground, and we are further of the opinion that whatever infirmities there may have been in such complaint in that respect were eked out by the form and substance of the defendant’s answer. Turning to the authorities cited by the appellant in support of his contention, we find that in the ease of Cohn v. Wright, supra, upon which the defendant chiefly relies, there was a special demurrer to the complaint upon the ground of uncertainty in the precise respect in which the complaint herein is asserted to be insufficient, and that this court based its decision upo.n the ground that such demurrer should have been sustained. In each of the other eases cited by the appellant upon this point it was the sufficiency of the plaintiff’s proof, not of his pleading, which was the subject of review. On the other hand, in the case of Reed v. Norton, 90 Cal. 590 [26 Pac. 767], the complaint alleged that “said firm sold and delivered to said Norton certain hardware and building material to be used in the erection and construction of said building and affixed and attached thereto.” This allegation was held to be sufficient to show that the materials were used in the building,' in the absence of a special demurrer. We conclude that there is no merit in the appellant’s first contention. This conclusion has application, also, in determining the appellant’s second contention as to the sufficiency of the findings to support the judgment. [6] This appeal, being upon the judgment-roll alone, no question can arise as to the sufficiency of the evidence to sustain the averments of the complaint and to justify the findings of the court. [7] It is .a well-established principle that whatever uncertainties may exist in the findings of the court are to be so resolved, if reasonably possible, to support the judgment rather than *303 to defeat it. (Breeze v. Brooks, 97 Cal. 72 [22 L. R. A. 257, 31 Pac. 742]; Warren v. Hopkins, 110 Cal. 506 [42 Pac. 986]; Krasky v. Wollpert, 134 Cal. 338 [66 Pac. 309]; People v. McCue, 150 Cal. 196 [88 Pac. 899]; Murphy v. Stelling, 8 Cal. App. 702 [97 Pac. 672].) The findings in the instant case follow substantially the wording of the complaint and, in addition to so doing, specifically find generally that all of the allegations of said complaint are true. Having determined that the asserted defects in said complaint are at the most mere uncertainties, it follows, under the foregoing authorities, that such uncertainties are to be resolved, if it is fairly reasonable so to do, so as to sustain the judgment. Applying this rule, we think that the inference may be fairly drawn from such findings that the materials furnished by the plaintiff to the defendant under his agreement so to do were used in the construction of the buildings upon the premises upon which the plaintiff claims and is awarded a lien. [8] The appellant’s final contention to the effect that the judgment is erroneous in its imposition of said lien upon the whole of said defendant’s lands, we find to be without merit. The complaint alleged that the whole of the defendant’s described premises were required for the convenient use and occupation of said buildings. The answer admitted this averment by failing to deny the same. The evidence must be presumed to have fully supported this averment, even if it had not been admitted to be true. The findings expressly state that the whole of the described premises is required for the use and occupation of the buildings erected thereon. This state of the record leaves no room for the application of the cases of Tunis v. Lakeport etc. Assn., 98 Cal. 285 [33 Pac. 63, 447], and Coman v. Griffith, 108 Cal. 224 [49 Am. St. Rep. 82, 41 Pac. 42], cited by the appellant to the facts of the case at bar, since in each of those cases the supreme court had the evidence before it and held the same insufficient to support the judgment. Judgment affirmed. Richards, J., pro tern., Shaw, C. J., Lawlor, J., Wilbur, J., Waste, J., Shurtleff, J., and Sloane, J., concurred.