Clancy v. Plover

Citations

• 107 Cal. 272
• 40 P. 394
• 1895 Cal. LEXIS 745

Syllabus

<p>Mechanic’s Lien—Foreclosure—Pleading—Attorney’s Fees—Immaterial Issue—Finding.—No allegation need be inserted in a complaint for the foreclosure of a mechanic’s lien relative to the claim of Che plaintiff for attorney’s fees; and an allegation on that subject, if iriade, does not bind the party making it, and an issue made by the pleadings on that question is immaterial, and the court need not find uponi it.</p> <p>Id.—Evidence—Value oe Counsel Fee—Power oe Court—Discretion. The attorney’s fee in an action for the foreclosure of a mechajnic’s lien is to be fixed by the court irrespective of any averment in the eomplaint, and no evidence need be produced or appear in the record as to she value of the fee; nor is the court bound by testimony touching its\\ value, though such testimony is admissible and may properly be considered by the court, the only limitation being that it shall not abuse the discretion committed to it by the statute.</p> <p>Id.—Duty of Contractor—Deduction by Owner—Amount of Foreclosed Lien—Costs.—It is the duty of the contractor to protect the property of the owner against any lien preferred by subcontractors, laborers, or materialmen employed by him; and the owner is entitled to deduct from any amount due to the contractor the amount of judgment and costs, including attorney’s fees, recovered upon foreclosure of the lien of a subcontractor.</p> <p>Id.—Order for Payment of Subcontractor Before Suit.—The fact that an order was given upon the owner by the contractor to the amount of the subcontractor’s claim before action was begun to foreclose the lien, the payment of which was refused, does not affect the obligation of the contractor to pay the debt together with all expenses and attorney’s fees for the foreclosure of the lien.</p> <p>Id.—Assignment by Contractor—Splitting of Demand.—The contractor cannot split his demand against the owner, and by assignment of a por. tion thereof impose upon the owner, without his consent, the legal obligatio