Rourk v. Miller

• Decision Date: 10 November 1891
• Docket Number: 293
• Parties: ROURK v. MILLER.
• Court: Washington Supreme Court

27 P. 1029

3 Wash. 73

ROURK v. MILLER.

No. 293

Supreme Court of Washington

November 10, 1891

Appeal from superior court, Pierce county; CARROLL B. GRAVES, Judge.

Action by John H. Rourk against F.C. Miller to foreclose a mechanic's lien. Judgment for plaintiff. Defendant appeals. Reversed.

A. A Knight, for appellant. Town & Likens, for respondent.

SCOTT J.

It appears by the findings of fact that "this cause came on regularly for trial on the 14th day of January, 1891." "When the case was called, the plaintiff's counsel made a motion for judgment upon the pleadings, except as to the counter-claim of twenty-five dollars, referred to in the defendant's answer. Arguments were made by the attorneys of the respective parties for and against the motion. Previous to the announcement of the decision of the court upon the motion defendant's counsel applied for permission to amend his answer, which application of the defendant was denied, and the motion of the plaintiff was granted." An exception was taken. Testimony was introduced upon the issue formed by the answer and reply as to the counter-claim. The court found thereon that the defendant was entitled to an offset against the plaintiff of $14.60, which he deducted from the amount stated to be due the plaintiff in the complaint, and rendered judgment in his favor for $160.40, - the balance. It was error to thus render judgment for the plaintiff upon the pleadings. The first and second paragraphs of the complaint are as follows: " First. That on or about the 1st day of October, 1888, at Tacoma, Pierce County, Washington Territory, the above-named plaintiff entered into an oral agreement and contract, with F.C. Miller, the above-named defendant, whereby the said plaintiff was to do certain carpenter work upon, and furnish certain material to be used in the construction of, a certain building upon the lands hereinafter described; and the said defendant, F.C. Miller, promised and agreed to pay to the plaintiff therefore the sum of five hundred and fifty dollars ($550) on or before the 15th day of March, 1889. Second. The plaintiff further alleges that he did and performed the work and labor upon the said buildign, and furnished the material to be used in the construction of the said building, between the 1st day of October, 1888, and the 15th day of March 1889, both das inclusive; and that he kept and performed the said agreement in all things to be kept and performed by him but the said defendant has not paid the said sum of $550, or any part thereof, except the sum of $375, and there is now due and owing from the said defendant F.C. Miller, to this plaintiff, on said contract, the sum of $175, and interest thereon from the 1st day of October, 1888." The remainder of the complaint related to the lien claimed. The material parts of the defendant's answer to be considered are as follows: "As regards the first paragraph in plaintiff's petition the defendant denies that he entered into the agreement with the plaintiff on...