Lewers & Cooke, Ltd. v. Fernandez

OPINION OF THE COURT BY QUARLES, J. The defendant Fernandez (hereinafter called the contractor) constructed under contract a residence and servant's quarters for his co-defendant Waterhouse (hereinafter called the owner) upon certain premises situated in Honolulu. The plaintiff sold and furnished to be used in the construction of said buildings certain materials, and which were used in constructing the buildings. The contractor failing to pay for the materials so furnished by it, plaintiff filed a notice of lien under the provisions of chapter 162 R. L., served a copy of the notice of lien on the de [745] fendant owner, after which it commenced this action to enforce its lien on the premises upon which the said buildings are located. The trial court found in favor of plaintiff and judgment was entered as prayed for in the complaint. The case comes before us upon numerous exceptions, but under the conclusion we have reached it will not be necessary to pass upon all of them. At the trial the plaintiff was permitted to amend its complaint by adding an allegation that the said owner “contracted with the defendant Joe Fernandez for the erection of said buildings and structures.” Thereupon the defendant owner filed a demurrer to the complaint as amended upon the ground that the amended complaint does not state facts sufficient to constitute a cause of action nor entitle plaintiff to the relief demanded, specifying among other particulars, that it does not appear from said amended complaint that any demand was made upon the defendants. The demurrer was overruled and the defendant owner excepted. The evidence failed to show that any demand was made upon the owner for the amount claimed in the notice of lien and when plaintiff rested its case the defendant owner moved for judgment of nonsuit upon various grounds, the sixth being as follows: “That it does not appear that any demand for the amount, either in whole or in part, for which the lien is claimed by the plaintiff, was ever made by the alleged lienor, plaintiff herein, to the owner, Mrs. Waterhouse.” The motion for nonsuit was denied and the defendant excepted. Section 2867, found in chapter 162 R. L., provides, among other things: “The liens hereby provided may after demand and refusal of the amount due, or upon neglect to pay the same upon demand, be enforced by proceedings in any court of competent jurisdiction, by service of summons, as in other cases.” Section 2864 R. L. requires that a notice of lien be filed and served upon the owner. Sections 2865 and 2866 R.L. relate to keeping records of liens of mechanics and material746 men and to priorities of such liens. Section 2868 provides that the owner, when a lien is filed, may retain from the amount payable to the contractor sufficient to cover the lien. These statutes relate to the duties, obligations and rights of the owner and not to those of the contractor. It is urged upon behalf of the plaintiff that the demurrer was properly overruled; that the motion for a nonsuit was properly denied; and that the decision in favor of plaintiff and judgment for the enforcement of its lien were proper as demand upon the owner was not necessary, service of á copy of the notice of lien upon the owner being sufficient under these various statutes. We are unable to agree with this contention but take the view that under the provisions of section 2867, supra, that after the notice of lien is filed and copy thereof served upon the owner demand upon the owner for the amount claimed under the lien is a condition precedent to bringing suit for its enforcement, and the fact of making such demand must be alleged and proven. To hold otherwise would be to eliminate material terms of the statute. The object and purpose of these statutes is to provide protection to one who furnishes labor or materials used in the construction of a building which he may have enforced upon certain conditions precedent, one of which is demand for payment upon the owner of the building. Looking at the purpose and intent of these statutes there is no doubt that the person upon whom demand must be made before commencing an action is the owner of the building .or structure upon which the lien is claimed. “A cause of action is often dependent upon a demand being made. Where this is so the complaint must allege demand.” 4 Ency. PL & Pr. 612. The general rule as to alleging the performance of a condition precedent is stated as follows: “When a specific act is to be done by the plaintiff, or any number of acts, by way of condition precedent, he must [747] show in the pleading precisely what he has done by way of performing them.” 4 Ency. Pl & Pr. 632. A. L. Castle and Marguerite Ashford (Castle & Withing-ton and Marguerite Ashford on the brief) for plaintiff. E. C. Peters for the defendant Waterhouse. The exceptions to the refusal to grant the motion of defendant for a nonsuit and to the decision and judgment against the defendant owner are sustained and the cause is remanded to the circuit court with instructions to set aside the order denying appellant’s motion for a nonsuit, to set aside the judgment against the appellant and to enter judgment of nonsuit in favor of the defendant owner.