Duby v. Hicks

RAND, J. The defendant contends that the complaint does not state facts sufficient to constitute a cause of suit. The plaintiffs contend that the complaint is good after decree and this is the only question necessary for decision. — 30 — A complaint which seeks to foreclose a lien must affirmatively allege the facts upon which the validity of the lien depends. “It must affirmatively appear from the complaint that the notice filed contained all the essential provisions required by statute; that it was proper in form, verified as required and filed within the time prescribed.” Pilz v. Killingsworth, 20 Or. 432, 437 (26 Pac. 305); Coffee v. Smith, 52 Or. 538, 540 (97 Pac. 1079); Equitable Savings & Loan Assn. v. Hewitt, 55 Or. 329, 335 (106 Pac. 447); Craig v. Crystal Realty Co., 89 Or. 25, 32, 33 (173 Pac. 322); Christman v. Salway, 103 Or. 666 (205 Pac. 540, 547). It was therefore necessary for the complaint to allege, and for the plaintiffs to prove a substantial compliance with all of the essential requirements of the statute, and that the lien notice, as filed, contained every statement which, by the terms of the statute, must appear upon the face of the lien notice. If the complaint failed to allege any such fact, then the complaint failed to state.a good cause of suit. An inspection of the complaint discloses that it fails to allege that any of the statements above quoted from Section 10273, which said section requires to be stated in the lien notice, were stated therein. The lien claimed was purely a statutory lien, and the sole relief sought was its foreclosure. Being a creature of the statute, its validity depended entirely upon a substantial compliance with the terms of the statute which created it. The statute having expressly directed that certain prescribed statements must be contained in the lien notice, there could be no compliance with the statute unless those statements were contained therein. Without a substantial — 31 — compliance with the statute the right to a lien was lost. It is essential to the validity of a lien of this character that the lien shall he a charge upon property for the payment of a debt, and the right which the statute confers is to have that debt satisfied out of a particular chattel. It must be obvious to everyone that, unless there was some debt to be secured, in the nature of things there could be no lien. Under the provisions of our statute, a valid lien notice must disclose that a debt does exist and must show the amount of the debt for which the lien is claimed, and if the lien notice fails to disclose those facts, the lien is invalid. The complaint affirmatively alleged that certain facts were disclosed by the lien notice in question, but from the allegations contained it appears that the lien notice as filed contained no statement of the amount for which the lien was claimed or that the plaintiffs were entitled to a lien for any amount. There is no allegation or fact stated to be found in any pleading of the defendant by which the allegation lacking in plaintiff’s complaint is supplied or the defect cured. Neither the original lien notice nor a certified copy thereof was offered or received in evidence. There is, therefore, neither allegation nor proof that the lien notice contained those statements which, by the statute, are essential to the existence of a lien. The complaint, therefore, was fatally defective and did not state a cause of suit. There is a marked distinction between an imperfect or defective statement of facts in a pleading which goes to make up a cause of action, and which, because not properly pleaded, makes the pleading subject to demurrer or motion, and a pleading which — 32 — fails to state some material and essential fact which goes to the gist of the action and must he pleaded in order to constitute a canse of action. In the first instance, if the pleading is not moved against or demurred to, the defect will be cured by verdict; while in the other, the defect is not cured by verdict; nor is it ever cured at all unless the adverse party in his pleadings has alleged or admitted the omitted fact. The present case clearly falls within the latter class. It was necessary, undei the statute, that the lien when filed should contain a statement of the facts recited in Section 10273. The complaint alleges that certain other statements required by Section 10273 were recited in the lien, but not the ones above referred to. It thus in effect affirmatively appears from the complaint that these statements were omitted from the lien, and being omitted, the lien was invalid; or if not omitted therefrom, then, as. the complaint failed to allege that these facts were stated in the lien notice, the complaint failed to allege a necessary and material fact, without which it failed to state a cause of suit. The law on this subject is so well settled in this state thht the question presented here is no longer open. In fact, we know of no question that has been more frequently considered and discussed,' or one upon which the decisions of this court have been more uniform, or where the prevailing law on the subject in other jurisdictions has been more in accord with the decisions of this court, than the one presented in the present case. “A verdict will cure an imperfect statement, or the omission of formal allegations, although it will not supply a total omission to state some fact essential to the cause of action.” Madden v. Welch, 48 Or. 199, 200 (86 Pac. 2). — 33 — “A verdict aids an informal statement of facts in a pleading, but will never supply a material averment that goes to the gist of the action.” Philomath v. Ingle, 41 Or. 289, 292 (68 Pac. 803). "Where the complaint fails to state facts sufficient to constitute a cause of action, or suit, the defect is never waived or cured by a verdict or decree. Keene v. Eldriedge, 47 Or. 179, 181 (82 Pac. 803). If a material allegation going to the gist of the action is wholly omitted, it cannot be presumed that any evidence in reference to it was offered or allowed on the trial, and hence the pleading is not aided by the verdict. Madden v. Welch, supra. “The general rule in such cases is ‘that wherever facts are not expressly stated which are so essential to a recovery that, without proof of them on the trial, a verdict could not have been rendered under the direction of the court, there the want of the express statement is cured by the verdict, provided the complaint contains terms sufficiently general to comprehend the facts in fair and reasonable intendment.” Nicolai v. Krimbel, 29 Or. 76, 84 (43 Pac. 865). “Now, a verdict will cure all mere formal defects in the pleadings, and will aid a defective statement of a good cause of action or defense, although it will not cure the omission of a material allegation.” Creecy v. Joy, 40 Or. 28, 32 (66 Pac. 295). “3. Where no motion or demurrer has been interposed to a pleading, every reasonable inference should be invoked in its support, and every legitimate intendment indulged in its aid, after verdict.” Syllabus, Patterson v. Patterson, 40 Or. 560, 564 (67 Pac. 664). “The rule is settled in this state that, while a verdict will never supply the omission of a material averment, it will aid informal defects in the pleading that do not go to the gist of the action.” Patterson v. Patterson, supra. — 34 — In McCall v. Porter, 42 Or. 49 (70 Pac. 820, 71 Pac. 967), it was held that where the defect is one of form and not of substance, when no objection is made thereto, either by motion or demurrer, the defect is waived by pleading over. “Findings made by a court upon the facts in an action tried before it without the intervention of a jury are deemed a verdict (B. & 0. Comp., § 159), and, though a verdict will not supply the omission to state some fact essential to the cause of action, it will cure all formal defects in a pleading, and establish every reasonable inference that can be drawn from the facts stated: Houghton v. Beck, 9 Or. 325; David v. Waters, 11 Or. 448 (5 Pac. 748); Bingham v. Kern, 18 Or. 199 (23 Pac. 182). ‘The extent and principle of the rule of aider by verdict,’ says Mr. Justice Bean, in Booth v. Moody, 30 Or. 222 (46 Pac. 884), ‘is that whenever the complaint contains terms sufficiently general to comprehend a matter so essential and necessary to be proved that, had it not been given in evidence, the jury could not have found the verdict, the want of a statement of such matter in express terms will be cured by the verdict, because evidence of the fact would be the same whether the allegation of the complaint is complete or imperfect. But if a material allegation going to the gist of the action is wholly omitted, it cannot be presumed that any evidence in reference to it was offered or allowed on the trial, and hence the pleading is not aided by the verdict.’ ” “Where facts which entitle the plaintiff to the relief sought are set out in the complaint and sustained by the testimony, the relief will, after answer and trial, be granted, notwithstanding the complaint may lack some of the requisites of a technical pleading.” Carlyle v. Sloan, 44 Or. 357, 369 (75 Pac. 217). “No demurrer to the complaint was interposed, in the absence of which every reasonable inference deducible from the pleadings will be invoked in favor of a general verdict, which, though it will not sup — 35 — ply the omission of a material averment, cures a defective statement, if the issue joined necessarily required proof of the facts imperfectly alleged.” Scott v. Christenson, 49 Or. 223, 224 (89 Pac. 376, 124 Am. St. Rep. 1041). “Where an essential fact has been omitted from the complaint, an issue as to such fact made by the answer and reply cures the defect in the complaint.” Easton v. Quackenbush, 86 Or. 374, 378 (168 Pac. 631); Treadgold v. Willard, 81 Or. 658 (160 Pac. 803). Mr. Justice Burnett, in Minter v. Minter, 80 Or. 319 (157 Pac. 157), quoted with approval from Bates v. Babcock, 95 Cal. 479, 482 (30 Pac. 605, 29 Am. St. Rep. 133, 136, 16 L. R. A. 745, 748), an excerpt of which a part is as follows: “It is only when there is in the complaint an entire absence of averment of fact essential to a recovery, so that no evidence of that fact could be received at the trial, that a judgment in favor of the plaintiff cannot be sustained; but, if the objection be merely that such fact is defectively alleged, evidence received under such averment, if sufficient, will sustain the judgment. In Portland v. New England Casualty Co., 96 Or. 48, 51 (189 Pac. 211), Mr. Justice Benson quoted with approval an excerpt from Booth v. Moody, supra, as follows: “A verdict will cure formal defects in a pleading, such as an imperfect statement, or the omission of formal allegations, and establishes every inference .that can be drawn from the facts stated.” “It is general and well-established rule that the failure of a complaint to state a cause of action may be cured by an answer or other pleadings in which the omitted facts are stated; for facts alleged by one party need not be pleaded by the other.” 21 R. C. L., p. 492. — 36 — “If a necessary allegation is omitted from a pleading and the missing allegation is either alleged or admitted by the pleading of the adverse party, the defect 'is eared * * bat a party’s pleading is not aided by his own allegations or admissions appearing elsewhere in the record.” 31 Cyc., p. 716. The objection that the complaint does not state facts sufficient to constitute a cause of action, whether demurred to or not under Section 72, Or. L., is never waived. It has always been the law in this state that this objection, whether raised in the lower court or not, could be taken advantage of successfully on appeal. The fact that the objection is raised for the first time on appeal does not in the slightest degree detract from the force of the objection, if the same is well taken. Upon this point it is unnecessary to cite authorities, but see Whitney Company, Limited, v. Smith, 63 Or. 187, 191 (126 Pac. 1000). For the reason stated, the decree appealed from should be reversed, and the cause remanded with permission to the plaintiff to apply to the court below for leave to amend his complaint in case the lien notice contains all of the statements required by the statute. Reversed and Remanded. Rehearing Denied. Objections to Cost Bill Overruled. Mr. Chief Justice Burnett, Mr. Justice Brown and Mr. Justice Harris concur.