McPherson v. Hattich

Citations

• 10 Ariz. 104
• 85 P. 731
• 1906 Ariz. LEXIS 106

Syllabus

<p>1. Contracts — Breach—Non-Payment—When Allegations oe Necessary.— When one enters into an agreement with another to-draw plans and superintend the construction of- a building for an agreed compensation, and afterwards refuses to allow the latter to-perform the services agreed, and fails to pay, the breach consists-in the non-payment and not in the mere refusal to allow performance, and in an action to recover on the contract and to enforce a lien for the agreed compensation, such non-payment must be alleged and proved.</p> <p>2. Pleadings — Exhibits—Cannot Supply Omissions in. — A statement in an exhibit filed with and made a part of the complaint, cannot be taken as a substantive allegation and supply omissions in the-complaint.</p> <p>3. Same — Sami;—Same—Notice oe Lien — Non-Payment—Statement Only Applies to Time oe Filing. — Even if the statement in a notice of lien filed with and made a part of a complaint as an exhibit, that a certain amount was due as compensation under a-contract might be considered as an allegation of the complaint, still it is insufficient as allegation of non-payment, since what may-have been true as to the non-payment at the time the lien was filed; may not have been true at the time the suit was brought.</p> <p>4. Trial — Verdict—Directed—For Failure oe Complaint to State. Cause oe Action. — Where a complaint is fatally defective in that it fails to state a cause of aetion the trial court is warranted in. directing a verdict for defendant.</p>