Child Lumber & Manufacturing Co. v. Page

Citations

• 28 Wash. 128
• 68 P. 373
• 1902 Wash. LEXIS 466

Syllabus

<p>MECHANICS’ LIENS-PLEADING-DEPARTURE.</p> <p>In an action to foreclose a lien for materials furnished under contract for the construction of a house, in which the answer sets up the contract in haec verba and alleges a breach of the conditions thereof, the fact that the reply admits the contract as set forth in the answer and sets up matter in avoidance of the alleged breach does not constitute a departure, since the facts alleged in the reply do not show a different contract from that set up in the complaint, and evidence of facts alleged, in the reply could be received under the allegations of the complaint.</p> <p>SAME-VARIANCE.</p> <p>Where a complaint alleges that a contract for furnishing materials for the construction of a building was fully performed by the delivery of the materials and the actual use thereof in the building, any showing of an extension of time for the delivery of the materials would not amount to a failure of proof under the allegations of the complaint, but would be no more than an immaterial variance.</p> <p>SAME-COMPLAINT-PERFORMANCE OF CONTRACT-- ALLEGATION OF SATISFACTION.</p> <p>In an action upon a contract for furnishing materials fora building, which provided that they should be of a quality satisfactory to the owner, an allegation in the complaint that, the materials were received and used by the owner is equivalent to an allegation of satisfaction.</p> <p>SAME — -ACCEPTANCE OF MATERIALS.</p> <p>Where the owner of premises does not object to the materials furnished for the construction of a building thereon, or condemn them, as provided in the building contract, hut allows them to be used in the building, he cannot thereafter refuse to pay therefor on the ground that they are inferior and unsatisfactory.</p> <p>SAME-ARBITRATION-NECESSARY BEFORE SUIT.</p> <p>Where a building contract gives the owner the right to fix and determine the amount of damages sustained by reason of the contractor’s delay in the construction of a building,