G. B. Shaw & Co. v. Bryan

Ellison, J. This is an action against defendant Bryan as contractor and defendants Uihlein and Mueller as owners of a' certain lot and house erected thereon. Bryan made a contract with Mueller to build á house on the lot and plaintiffs furnished the lumber and material to Bryan which was used in the construction of the house. [526] The preliminary notice was served on Mueller. Bryan made default and judgment was given for the enforcement of the lien against the house. Defendants Uihlein and Mueller appeal. The first objection is as to the admission of the testimony of one Mueir as to the correctness of the account. It appears that he knew nothing of the account except what he learned from plaintiffs’ books. Though this was not competent testimony, yet its reception has worked no harm, as by the uncontradicted testimony of Bryan it appears clear enough that the account was correct. There was enough in Bryan’s testimony upon which to base a finding that the account was correct and unpaid. A demurrer to the evidence offered for plaintiff was made and overruled. It was argued that inasmuch as the testimony for plaintiff failed to show that either Uihlein or Mueller were the owners of the property that the demurrer should have been sustained. Grant this, and defendant cannot urge it here for they have remedied the defect by introducing Mueller in their behalf who testified, on cross-examination, that Uihlein was the owner and he his agent, and that as such agent he made the contract with Bryan, the builder. By introducing testimony in their own behalf, defendants waived their demurrer and we will look to the whole evidence. The further contention is urged that since it was established that Uihlein was the owner of the property and Mueller was his agent, and that service of the ten days’ notice of the intention to file the lien was made upon Mueller as owner and not as agent, it was not the required notice. We are not inclined to sustain this position. The statute requires the notice to be served upon either the owner or agent. In this case it was in fact served on the agent though he was called the owner. It seems to me that the object of the statute has been fulfilled. The proper party has been notified and put in [527] possession of those facts which the statute has provided for his protection. Counsel state in their argument that the petition does not allege service on Uihlein or his agent. Of this we cannot say as the petition is not set forth in the abstract. We perceive no error substantially affecting the merits of the action and we affirm the judgment. All concur.