Schmid v. Busch

Citations

• 97 Cal. 184
• 31 P. 893
• 1893 Cal. LEXIS 507

Syllabus

<p>Mechanic’s Lien—Contract Payable in Land—Admissions of Pleadings'— Nonsuit.—In an action to foreclose a laborer’s lien for $163, where the complaint alleged that the owner of the land entered into a contract with a contractor to repair a building thereon, and that at the date of the completion of the work under the contract there remained due the contractor from the owner a sum of money more than sufficient to pay the amount due the plaintiff for work done by him for the contractor in repairing the building, and the plaintiff proved the labor performed by him, and the amount and value thereof as averred, and the answer of the owner set up a written contract substantially the same as that alleged in the complaint, except that it provided that the work was to be paid for by a conveyance of land, and alleged that the contractor agreed that the land should not be conveyed to him until he paid the owner twenty-five dollars borrowed money, but admitted that the value of the work to be performed by the contractor was four hundred dollars, and that that sum, less the twenty-five dollars, had not been paid, by a transfer of the land, or otherwise, the plaintiff is entitled to rely upon the admission of the answer; and a denial in the answer that any sum was due the contractor upon the completion of the work, pursuant to the contract or otherwise, must be treated as a denial only that any sum was due under the contract; and the failure of the plaintiff to offer evidence as to the terms of the contract between the owner and contractor, or that there was any contract between them, does not entitle the owner to a nonsuit.</p> <p>Id. —Lien under Contract Payable Otherwise than in Money. — A laborer is entitled, under sections 1183, 1184, and 1201 of the Code of Civil Procedure, to foreclose a lien for work done for the contractor, although the contract price is less than one thousand dollars, and is made payable in something other than money, where it has not in fact been paid