Harris v. Harris

• Decision Date: 14 December 1896
• Citation: 47 P. 841,9 Colo.App. 211
• Parties: HARRIS et al. v. HARRIS et al.
• Court: Colorado Court of Appeals

47 P. 841

9 Colo.App. 211

HARRIS et al. v. HARRIS et al.

Court of Appeals of Colorado

December 14, 1896

Appeal from district court, Arapahoe county.

Action by James Harris and others against John H. Harris and others to enforce a mechanic's lien. From a judgment for defendants on the pleadings, plaintiffs appeal. Reversed.

A judgment on the pleadings is not warranted where the statement of the cause of action, though defective, might be made good by amendment.

The action was brought to enforce a mechanic's lien against certain lots and a building. At the time the contract for building was filed, also at the time of the filing of the petition for a lien, the title to the lots was in John H. Harris. The property was, it appears, conveyed to Maud N. Harris, the other appellee. On the 5th of March 1893, John H. Harris, the record owner, made an agreement with William Miller to erect a building upon the lots. March 6, 1893, Miller made a contract with appellants by which they, for the sum of $250, were to furnish the material and plaster the building. It is alleged that Miller completed the building according to agreement, and appellants fulfilled their contract of plastering, finishing it on September 16 1893; that appellants had been paid $125 upon the contract the balance remaining unpaid; that on October 14, 1893, they filed their statement of lien. Appellants further alleged that, on or about the 10th day of July, 1893, John H. Harris personally promised to pay the contract price of $250 on the contract made by Miller, and that, at the time of the purchasing the material performing the labor, and the filing the lien statement, John H. Harris was indebted to Miller in an amount greater than the sum due the appellants. Prayer for a personal judgment against John H. Harris, based on his alleged promise to pay for $125, for a lien and foreclosure upon the premises, and an attorney's fee of $50.

As the judgment was upon the pleadings, it becomes necessary to set out the answer of John H. and Maud N. Harris at some length, in substance as follows: They admit record title to the lots to be as charged in complaint, but claim that defendant Maud N. Harris was at all times the real owner, and that said real estate was bought, and the building thereon erected, with her money; that, on or about May 13, 1893, the defendant John H. Harris entered into a written contract (copied in full in the answer) with one William Miller, whereby said Miller agreed to build, upon a portion of the lots described in the complaint, a brick house, to be completed by July 31, 1893, for a consideration of $3,848, to be paid by the owner in installments upon the architects' certificate, less 20 per cent. to be retained until the final payment; that said contract provided that, should said contractor fail in the performance of any of the agreements therein on his part, then, on certificate of the architects, and three days' written notice to the contractor, the owner should be at liberty to provide such labor or materials, and to deduct the cost thereof from any money then due or to become due the contractor, and to terminate the contract, and to enter and take possession of all materials, and employ any other person to finish the work, holding the contractor liable for the expense thereof. The said contract further provided that, if there should be any lien or claim for which the owner or premises might be liable, the owner should have the right to retain, out of any payment then or thereafter due, an amount sufficient to indemnify him against the same; and if there should prove to be any such claim, after all payments are made, the contractor should refund to the owner all moneys paid to discharge such claims. That said William Miller proceeded to construct said house, and entered into various subcontracts in respect thereto, and as to whether he entered into a contract with the plaintiffs, as set forth in their complaint, or any contract whatever, defendants have no knowledge or information upon which to base a belief. That from time to time said Miller drew money from the defendant John H. Harris to apply on said contract price, until he had so drawn $2,975, representing, and with the distinct understanding, that said Miller should apply the same upon his said subcontracts; but that, being called to account, said Miller was unable to show how said money had been applied, excepting $1,800 thereof, and said Harris then and there charged him with having fraudulently disposed of about $1,100 of said money at play. That said Miller, on or about the 20th day of July, 1893, confessing his inability to replace or refund said $1,100 so squandered, terminated said contract, and, by losing said money in gambling, he subjected said premises to various mechanics' liens, to the great injury of defendants. That at the abandonment of said contract the value of the improvements and materials upon the ground did not exceed $1,800, and that said Miller had overdrawn about $1,200, and, at the time plaintiffs filed their lien, said defendant Harris was not indebted to the said Miller, but the said Miller was indebted to him about $1,200. That said Harris completed said house by making direct contract, etc., and, although the specifications were modified and the expense reduced, he paid out a total excess above the contract price of about $2,500. Defendants admit that defendant John H. Harris paid to plaintiffs $125 upon the order of said Miller, but deny that the said Harris, at any time, promised to pay the balance to plaintiffs, as set forth in the alleged lien claim in plaintiffs' complaint; and, for want of information, deny that said Miller is still indebted to plaintiffs $125, or any other sum; deny that $50 is a reasonable attorney's fee for foreclosure; deny that plaintiffs are entitled to recover any attorney's fees; deny that all of said lots are necessary for the convenient use of said building. Defendants further say that the pretended act of the legislature of the state of Colorado to repeal the act approved March 2, 1883, and incorporated in the Session Laws of 1889, beginning on page 247, and ending on page 253, is not, and never was, the law in this state, for the reason that the same was never passed (setting out in detail the history of said act through both houses, the failure to enter the yeas and nays upon the report of the conference committee upon the journal of the house, etc.). The amendment to the answer alleges that the pretended promise of John H. Harris personally to pay the claim of plaintiffs is collateral, and not evidenced by any writing whatsoever, and that plaintiffs made their contract with defendant William Miller. The replication specifically denied the allegations of the answer. The case was reached and called for trial May 22, 1895, when counsel for defendants (appellees) filed the following motion: "Let the record show that, the case being called for trial, the defendants John H. and Maud N. Harris move for judgment on the pleadings against the plaintiff and the cross complainants, for the reason that, by the allegations of the complaint and the cross complaints, it is shown that they are entitled to no relief, and that the defendants should have judgment for costs." The motion was sustained, judgment entered for the defendants upon the pleadings, an exception taken, and an appeal prosecuted to this court.

stuart & Murray, for appellants.

Clay B. Whitford and H.A. Lindsley, for appellees.

REED, P.J. (after stating the facts).

The only question for determination is the correctness of the judgment of the court in finding and entering judgment for the defendants upon the pleadings. In Rice v. Bush, 16 Colo 484, 27 P. 720, it is said: "In passing upon the motion by one party for judgment upon the pleadings after issue joined, all the material allegations of the opposite party must be taken as true; and if the pleadings of the opposite party, though defective in form, are nevertheless sufficient in substance to sustain a judgment in his favor, the motion should not be granted. In general, a motion for...