Briggs v. Bruce

• Decision Date: 01 June 1886
• Parties: BRIGGS v. BRUCE.
• Court: Colorado Supreme Court

11 P. 204

9 Colo. 282

BRIGGS v. BRUCE.

Supreme Court of Colorado

June, 1886

Appeal from county court, Weld county.

This was a proceeding to enforce a mechanic's lien upon certain premises situate near the town of Erie, in Weld county. The plaintiff, John Bruce, in his complaint alleges that he entered into a contract with the defendant, Henry Briggs, on or about the first day of December, 1881, to do certain work by the day, and as a mechanic, upon a building owned by the defendant, for the sum of $75; that he began the work about December 1, and finished about December 20, 1881 and that there remains unpaid and due on said contract the sum of $64.25. The complaint also alleges that plaintiff made and filed a claim for a lien against the premises as provided by law. The prayer is for a lien against the property for the said sum of $64.25, for interest thereon from December 20 1881, and for costs, including the sum of $4.20, the expense of making and recording the lien claim; also that execution issue against the premises. The defendant's answer admits the contract as stated, and that, in addition to the $75, the plaintiff performed other work of the value of $1, making $76 in the aggregate. Defendant denies that there remains due and owing plaintiff the sum of $64.25, but avers that the balance then remaining due and unpaid was the sum of $26 only specifically averring payment of all indebtedness exceeding that sum before suit brought. In his third defense he alleges payment to the plaintiff of the sum of $50 on account of said work before the commencement of the action, leaving the sum of $26, and no more, due to plaintiff. No replication was filed to this answer, and upon the close of the plaintiff's testimony the defendant moved that the action be dismissed, save as to the sum of $26, for failure of the plaintiff to reply to the second and third defenses set up in the answer. The court overruled the motion, and permitted the plaintiff to amend his complaint so as to conform to his proof. The defendant then introduced his testimony, and the court, upon consideration of the case, found that defendant was indebted to the plaintiff in the sum of $41.70, and rendered judgment for said sum, and costs of suit; ordering that the judgment be made a lien against said property. Upon the trial the plaintiff claimed that he had performed extra work upon the building, the same consisting of 14 days' labor, at the sum of $3.50 per day, and admitted payment by the defendant of the sum of $50.

BECK, C.J.

The first error assigned is the refusal of the court to dismiss the action as to...