Green v. Clifford

Citations

• 94 Cal. 49
• 29 P. 331
• 1892 Cal. LEXIS 633

Syllabus

<p>Mechanics’ Liens — Abandonment of Original Contract — Completion of Work by Surety—Agency for Owner — Findings—Appeal. —Where the evidence is not before the appellate court, and the court below has found, in an action to foreclose mechanics’ liens upon a house, that the original contractor for the erection of the house abandoned the contract and fled the country, and that the surety on his bond thereafter completed the building merely as the agent and foreman for the owner, and, as such agent, ordered the labor and materials for which the liens were claimed, the findings must be taken as true, and the contention, cannot prevail, upon appeal by the owner of the house, that the surety carried out the contract, and that the rights of the lien-holders must be measured by the contract.</p> <p>Id.— Assigned Liens—Pleading—Separation of Counts — Reference to First Count. — Where a plaintiff in an action to enforce mechanics” liens is also the assignee of several other lien-holders, it is necessary to. state the cause of action upon each lien in a separate count; but where the first count is divided into paragraphs designated by Roman numerals,, and each subsequent count commences with a reference to paragraph I. of the first count, which contains averments necessary to each count, as¡ to the land on which the building was erected, and such paragraph is. expressly made by the reference a part of the cause of action stated in each subsequent count as if incorporated therein, the judgment will not he reversed because such paragraph was not written in full in each of the counts.</p> <p>Id.—Parties — Contractor—Amendment after Statutory Time — Owner not Prejudiced. — The contractor is not a necessary party to an action by a material-man to enforce his lien against the owner of premises for materials furnished the contractor, so far as the rights of the owner of the building are concerned; and an amendment by the plaintiff to his complaint, making the contractor a party, afte