Peccole v. Luce & Goodfellow

• Decision Date: 08 December 1949
• Docket Number: No. 3562,3562
• Citation: 212 P.2d 718,66 Nev. 360
• Parties: PECCOLE et al. v. LUCE & GOODFELLOW, Inc., et al.
• Court: Nevada Supreme Court

Page 718

212 P.2d 718

66 Nev. 360

PECCOLE et al. v. LUCE & GOODFELLOW, Inc., et al.

No. 3562.

Supreme Court of Nevada.

Dec. 8, 1949.

Jones, Wiener & Jones, Las Vegas, for appellants.

Harvey Dickerson, Las Vegas, for respondents.

WATSON, District Judge.

This is an appeal from a judgment decreeing foreclosure of liens: 'A', $1,055.36 to Luce & Goodfellow, Inc., an electrical company; 'D', $382.70 to F. W. and Allen L. Sharpe, painters and decorators; 'E', $798.50, to Tommy Roberts doing business as Roberts Roofing & Floor Company; awarding $600.00 attorney fee, and decreeing said sums to be a lien on the property described.

A joint action was filed by six claimants for more than $14,000.00, and copies of their respective lien claims were attached as a part of the complaint as Exhibits 'A' to 'F' inclusive. It was stipulated at the trial that evidence adduced should apply to claims other than 'A', 'D' and 'E' above only in the event the others were not compromised. The court below found that other claims had been compromised and settled, and 'E' is dismissed on this appeal by request of appellants on admission that the findings below were correct with reference thereto.

The appeal then is from the judgment and order denying new trials as to 'A' and 'D' claims only, insofar as we are concerned here.

The contention of defendants differing as to the two causes, they for the most part must be treated separately, but discussion herein as to either cause which is decisive as to both causes, is so intended.

Paragraphs I and II of the complaint allege that Luce & Goodfellow in the capacity of electricians furnished material and labor on the premises at the instance and request of Christie, lessee of owners Peccole and others, on his, Christie's, Promise to pay the reasonable value thereof; that the materials were used in improving the building; that the owners, Robert and Peter Peccole and Louis Wiener, Jr., were cognizant of and had notice of the installation of the electrical work and wiring; that $1,364.56 was the reasonable value of the labor and materials, and that payment had been refused on demand, and so forth.

The answer and separate defense admit I and II, except to aver substantial compliance by May 16, instead of June 18, 1947, to deny furnishing of material or labor after the former date, and to deny the reasonable value to be more than $1,000.00, on which credit is claimed of $300.00. We think this is answered by undisputed evidence of Albright, salesman and estimator for plaintiff, and Exhibit, C2, ledger sheet showing the conection of an electric heater May 19, 1947, certain electrical work as contracted for, and a balance due as of that date of $1,355.36, on which claimed credit of $300.00 was allowed by the judgment of $1,055.36. In any event there was substantial evidence to sustain the findings in these respects. Nor should the fixing of interest on the judgment as of June 18th be complained of as it benefits no one but defendants.

Defendants admit that lien claim 'A' was filed as required by law on June 18 as alleged in Paragraph XV, and the only claim filed within ninety days, and admit that as alleged therein all claims were filed according to law on various dates, including 'D' filed as of August 23rd. The answer denied the balance of that paragraph in which it is alleged that each claim was filed within ninety days from completion of work and furnishing of materials, and in which particulars of compliance with our lien laws are enumerated; we point out that this denial was qualified by the wording of the answer, Paragraph XXIII, '* * * and allege the fact to be that all plaintiffs herein, save and except Luce & Goodfellow, Inc., filed their lien claims more than ninety days after the completion of the work to be performed and/or materials furnished by said plaintiffs * * *'. Nor does the separate defense point out any defect in this or the other liens except to repeat as to other liens, failure to file within the ninety days.

The special denial as to time of filing only, we think created only that issue. Material allegations not properly denied, stand admitted. 49 C.J. 341, p. 275, and cases there cited, note 74. Applying the general rule that what should be and is not traversed or denied is admitted, generally speaking a special denial of one or more allegations admits all others well pleaded. Pleading, Section 346, 49 C.J., p. 281 and cases there cited, note 42, under which is cited Shamlian v. Wells, 197 Cal. 716, 242 P. 483, 484, an action for occupancy of realty. Defendant Caine there denied generally the allegations of the complaint, but specially denied that he unlawfully retained possession and harvested crops during the period. The court said in substance: 'The denial last referred to must be taken as an admission of retention of possession, harvesting crops and appropriation of the proceeds of sale thereof' as alleged in the complaint. 'The only issue raised was as to the lawfulness of appropriation and possession.'

A general demurrer was filed herein to the complaint as a whole, same being overruled by consent on time being given to answer. There was no objection at the trial to introduction of evidence in support of lien 'A' because of its failure to comply with Section 3739, N.C.L.Sup.1931-41, pertaining to Mechanics' Liens. The matter was submitted on brief and there for the first time appellants argued that lien 'A' failed to contain 'also the name of the person by whom he was employed or to whom he furnished the material'.

That is appellants' principal contention here, that 'A' was fatally defective in this respect, invalid and did not support the judgment and therefore a new trial should have been granted.

Section 3739, N.C.L.Sup., provides that the lien claim shall contain, also, the name of the person by whom claimant was employed or to whom he furnished the material. Lien claim 'A' gives notice that Luce & Goodfellow, Inc., 'under and pursuant to the laws of the State of Nevada relating to liens of mechanics and others, claim a lien upon that certain real property * * *', giving location and description; 'that said lien is claimed for material and labor furnished in the installation of electrical work and wiring installed in the building situated upon the above described lots'; 'that Robert Peccole, Peter Peccole and Louis Wiener, Jr., are now, and at all times herein mentioned were the owners and reputed owners of the real estate described, and that S. D. Christie is the lessee of said owners'. It sets out the value of the materials and labor, date of completion and that the whole of said property was necessary for the convenient use and occupation of said building.

Though the only parties in interest as appears by the pleadings and the proof are named as owners and lessees, the failure to identify in so many words one or the other, as the employer or person to whom materials were furnished, seems the basis of appellants' contention here. As to the cases most relied on by appellants, we do not find Nofziger Bros. Lumber Co., 2 Cal.App. 219, v. Shafer, 83 P. 284, in point. Hooper v. Flood, 1880, 54 Cal. 218, properly held: Demurrer for misjoinder should have been sustained as to defendant Flood alleged in the complaint and nominated in the lien claim to have been the agent of Irvine, the owner; that the word 'cash' does not state terms, time given and conditions of contract, no longer required by 1187, Code of Civil Procedure, Baird v. Ocequeda, 8 Cal.2d 700, 67 P.2d 1055; that statement of intervener 'that materials were furnished for Irvine and Lien was claimed on his interest in the land and buildings', was not a statement of owner or reputed owner. In Norton v. Bedell Engineering Co., 1928, 88 Cal.App. 777, 264 P. 311, where neither complaint nor lien claim stated, as required by 1187, C.C.P., kind of materials furnished or work done, objection to evidence was sustained without leave to amend despite 1203, C.C.P., 'where complaint stated none of the material matters in the lien claim and did not attach or contain a copy of lien claim.' The court there said it could not be ascertained from the complaint as to contents of lien notice, whether compensation was sought for lumber, hardware, paint, plaster or brick nor whether work performed was that of a carpenter, plumber, painter or brick mason. In Hogan v. Bigler, 1908, 8 Cal.App. 71, 96 P. 97, strictly interpreting the statute as so many earlier cases did under statutes similar to our own, the court held that required statement, among other things, 'the name of the person to whom he furnished the materials', was not met where lien stated and complaint alleged that lumber was sold to Crawford and evidence without conflict shows sale to one Hambleton, and the lower court so found. The court there said: 'It appears clear that if a notice of claim of lien states that materials were furnished to a particular person, when, as a fact, they were sold to a different person, and not to the person named, such claim would be more objectionable and defective than if the claim of lien had contained no statement.' 'In the one case no information is given, and in the other information is given which is untrue and misleading.' Madera Flume & Trading Co. v. Kendall, 1898, 120 Cal. 182, 52 P. 304, 65 Am.St.Rep. 177. cited therein says, that statement in lien, that one Price was contractor, fails to name person to whom materials were furnished, where statement is consistent with their having been furnished to some one other than Price. We feel the court there followed the harsh trend of the then decisions in holding that though the complaint alleged Price as the person to whom materials were furnished, the lien could not be amended in this respect.

We point out that Johnson v. Smith, 1929, 97 Cal.App. 752, 276 P. 146, interpreted section 1203, C.C.P., differently than did Norton v. Beddell Engineering, supra,...