Pearce v. Albright.
| Decision Date | 03 March 1904 |
| Citation | 76 P. 286,12 N.M. 202 |
| Parties | PEARCEv.ALBRIGHT. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. In this case the notice of lien does contain a statement of the terms, time given, and conditions of the plaintiff's contract.
2. Because the Christian name of the person who signed the notice of lien was not written out in full, but was designated by initials, the notice of lien is not a nullity. But the use of initials only, instead of writing out the Christian name of a person, in legal instruments, is a practice not to be commended.
3. An appellant cannot take advantage of the fact that the court did not pass upon a motion and demurrer filed by appellee, as he is not injured thereby. The appellee alone could have objected to the action of the court in going to trial without having disposed of them.
4. When a case is tried by the court, without the intervention of a jury, neither party objecting or excepting, and when both parties appear and produce witnesses, presumably they desired a hearing, and it is too late for the appellant to first raise the point on appeal to this court that the record does not show the jury was waived.
5. The value of attorney's fees can be found by the court in the absence of evidence on that point, other than the record of the proceedings.
6. It was error in ordering that execution issue against the appellant if the property in which the lien attached did not bring enough to satisfy the judgment, but this error is cured by appellee having filed a disclaimer, waiving any personal judgment against appellant.
Appeal from District Court, Bernalillo County; before Justice Baker.
Action by F. L. Pearce against Franc. E. L. Albright. Judgment for plaintiff. Defendant appeals. Modified.
That the Christian name of the person who signed a notice of lien was not written out in full does not render the notice of lien a nullity.
T. N. Wilkerson, for appellant.
John H. Stingle, for appellee.
This is a suit brought to foreclose a mechanic's lien for work and labor done and the furnishing of materials used in repairing a house. The work and labor was done and the materials furnished at the instance of one Dolly Monbars, lessee of the appellant, Mrs. Albright, who owned the property. The evidence shows, and the court below found, that the owner of the property knew that the materials were being furnished and the repairs being made, and that she did not post the notice on the property within three days, required by section 2226 of the Compiled Laws of 1897, that she would not be responsible for the same.
To the complaint a demurrer was filed, of which it will be necessary for us to consider only two of the grounds set up in it, to wit: (1) That the notice of lien was defective, in that it did not contain a statement of the terms, time given, and condition of the plaintiff's alleged contract; and (2) that the alleged notice was not signed with the legal name of any person, it being signed by F. L. Pearce.
If the first ground of demurrer was true in fact, the complaint should have been dismissed, but an examination of the lien discloses that it does contain a statement of the terms, time given, and condition of the contract. It shows that the contractor, Pearce, on or about December 20, 1900, entered into a verbal contract with Dolly Monbars, the occupant of the premises, to perform the labor and furnish the materials for the repair of the property in question for the sum of $200, and that afterwards, at her request, he did other work and furnished additional materials outside of the contract price to the extent of $14.25, and that all of said labor was done and materials furnished between December 20, 1900, and January 30, 1901; that payments were to be made as the work progressed, and the balance on the completion of the contract; that $122 had been paid on account, leaving a balance due of $92.25, after allowing all just credits and offsets. This lien is sworn to by F. L. Pearce, and a statement of his account is attached thereto. We think that this notice of lien meets the objections raised by appellant.
As to the second ground of the demurrer, the appellant does not produce a single authority to sustain his contention that the notice of lien is bad because when it was signed and verified the appellee used the initials of his Christian name, instead of signing it in full. Christian and surnames are used to...
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