Gibson v. Wheeler

Citations

• 110 Cal. 243
• 42 P. 810
• 1895 Cal. LEXIS 1049

Syllabus

<p>Mechanic’s Lien — Claim of Materialman—Pleading—Variance. — In an action to foreclose the lien of a materialman, in which the complaint alleges that a balance of the contract price is still in the hands of the owner of the building, and bases a right of recovery upon that ground only, the plaintiff cannot recover upon proof of the mere assumption by the owner of a debt of the contractor, or his agreement to pay such debt, which would not carry or create a right of lien, and which is not alleged in the complaint, and there can be no recovery against the owner, where the court finds as a fact that he had paid out more than the contract price of the building prior to the. commencement of the action, and owed the contractor nothing.</p> <p>Id.—Materials Furnished to Owner not Pleaded—Finding Outside of Issues.—Where the complaint alleges only that materials were furnished to the contractor, the court cannot enforce a lien against the owner upon proof that materials were bought by the owner directly from the plaintiffs, and were used in the construction of the building, nor adjudge the recovery of a lien for the amount of materials thus bought; and a finding of any contract with the owner not pleaded is outside of the issues made.</p>