Kelley v. Plover

Citations

• 103 Cal. 35
• 36 P. 1020
• 1894 Cal. LEXIS 714

Syllabus

<p>Foreclosure of Mechanic’s Lien.—Parties—Trial as to Owner Without Objection—Judgment.—In an action to foreclose a mechanic’s lien against the owner of the building, where the contractors and several fictitious persons were named as defendants, but were not served and did not appear, and no objection was made ,to proceeding with the trial of the cause, the court is authorized under section 579 of the Code of Civil Procedure to render judgment against the owner, without determining the liability of the other defendants.</p> <p>Id.—Notice of Lien—Terms of Payment.—Where the claim of lien filed in the recorder’s office stated that the terms, time given, and condition of the contract, were “cash on completion of contract,” the statement of the terms is sufficient.</p> <p>Id.—Defense Not Pleaded—Guaranty of Contract—Breach by Con- ‘ tractors.—Where the answer of the owner does not plead as a defense that the plaintiffs had guaranteed the performance of the contract, and that the contractors did not complete the work agreed, and that the work performed was badly done, the owner cannot avail himself of such defense upon appeal, notwithstanding evidence given on his part . tending to prove it.</p>