Page images
PDF
EPUB

answer of justification with evidence on the trial to sustain it, the plaintiff may prove his general character in rebuttal.20 Whether a defense in an answer contains a justification must be determined by the language used in it, and it cannot be aided, enlarged, or improved by an introductory clause, characterizing it or expressing its purpose; 21 such a clause is irrelevant, and may be stricken out.2 But allegations in the answer that the plaintiff is not the real party in interest, but the action is prosecuted by some one else in the plaintiff's name, are not irrelevant.23 Where the words set out in the complaint are actionable per se, an answer setting up, by way of defense, that they were privileged, need not allege that they were uttered without malice. The plea of justification is no aggravation of the wrong unless it be used by the defendant maliciously, with a knowledge of its falsity; 25 and mere inability to establish a justification is no evidence of malice, and will not warrant the inference of malice by a jury.26 It is held to be proper for the defendant, in an action for defamatory words published concerning the plaintiff, to answer the allegation of intent, or innuendo, in the complaint or petition, by denying the slanderous intent imputed to him in the use of the words.27

1 See Harper v. Harper, 10 Bush, 447.

2 Thrall v. Smiley, 9 Cal. 529; Merk v. Gelzhaeuser, 50 Cal. 631.

3 Harper v. Harper, 10 Bush, 447. And see Fink v. Justh, 14 Abb. Pr N. S. 107; Kelly v. Taintor, 48 How. Pr. 270; Hager v. Tibbits, 2 Abb. Pr. N. S. 97; Bush v. Prosser, 11 N. Y. 347; Dolevin v. Wilder, 34 How. Pr. 488; 7 Robt. 319.

4 Harper v. Harper, 10 Bush, 447.

5 Sunman v. Brewin, 52 Ind. 140; Duval v. Davey, 32 Ohio St. 604; Boaz v. Tate, 43 Ind. 60.

6 Willover v. Hill, 72 N. Y. 36; Blanchard . Tulip, 32 Hun, 638. But see Duval v. Davey, 32 Ohio St. 604; N. Y. Code Cfv. Proc. § 536. 7 Castle v. Houston, 19 Kan. 417.

8 Baum v. Clause, 5 Hill, 196; Root v. King, 7 Cowen, 619; 4 Wend. 113.

9 Wachter v. Quenzer, 29 N. Y. 547; Buddington v. Davis, 6 How. Pr. 401; Anibal v. Hunter, 6 How. Pr. 255; Castle v. Houston, 19 Kan. 417; Sunman v. Brewin, 52 Ind. 140,

10 Tilson v. Clark, 45 Barb. 178; Maretzek v. Cauldwell, 19 Abb. Pr. 35; 2 Robt. 715; Billings v. Waller, 28 How. Pr. 97; Robinson v. Hatch, 55 How. Pr. 55.

11 Van Wyck v. Guthrie, 4 Duer, 268; 17 N. Y. 190.

12 Castle v. Houston, 19 Kan. 417.

13 Van Wyck v. Guthrie, 4 Duer, 268; 17 N. Y. 190.

14 Kimball v. Fernandez, 41 Wis. 329.

15 Talmadge v. Baker, 22 Wis. 625.

16 Smith v. Tribune Co. 4 Biss. 477; Herr v. Bamberg, 10 How. Pr. 128. And see Palmer v. Smith, 21 Minn. 419.

17 Loveland v. Hosmer, 8 How. Pr. 215. See Jaycocks v. Ayres, 7 How. Pr. 215.

18 Downey v. Dillon, 52 Ind. 442; Spooner v. Keeler, 51 N. Y. 527. 19 Downey v. Dillon, 52 Ind. 442. cock, 4 McLean, 113.

20 Downey v. Dillon, 52 Ind. 442.

And see United States v. Bab

21 Kelly v. Waterbury, 87 N. Y. 179. 22 Kelly v. Waterbury, 87 N. Y. 179. 23 Moody v. Libbey, 1 Abb. N. C. 154.

24 Robinson v. Hatch, 55 How. Pr. 55. See Hamilton v. Eno, 16 Huh, 599; 81 N. Y. 116.

25 Klinck v. Colby, 46 N. Y. 427; Bisbey v. Shaw, 12 N. Y. 67: Distin v. Rose, 69 N. Y. 122; 7 Hun, 83; Bush v. Prosser, 11 N. Y. 366.

26 Aird v. Fireman's Journal Co. 10 Daly, 254.

27 Wilkin . Tharp, 55 Iowa, 609. See Fry v. Bennett, 5 Sand. 54; 1 Code R. N. S. 238

2 165. Lien, mechanic's-Complaint.-A suit to enforce a mechanic's lien is essentially a suit in equity, and strict proof of all that is essential to the creation of the lien is required;1 this includes proof of the commencement of the work, the character of the work, and when it was completed. The existence of a lien is absolutely necessary to confer jurisdiction upon the court, and when no valid lien has been filed, the court cannot entertain the proceeding for the purpose of granting a personal judgment. The complaint or petition must set forth the facts which show that the plaintiff has a lien and the right to enforce it; it must show a full compliance with the statute in all respects. There can

be no enforcement of a lien until the debt for which the lien is made and held as security has become payable; and a complaint or petition which fails to state that something was due for the services on which the lien was founded at the time the suit was commenced is fatally defective. But it is held that an amendment may be made in this respect; and that although the complaint itself does not state that the debt is due, yet if that fact is stated in the petition which is embodied in and made a part of the complaint, it is sufficient.9 So the complaint may be amended so as to correct an erroneous description of the property." And an error in the name of the owner in the notice of claim may be corrected in the complaint by setting forth the mistake and averring the true owner. The complaint must aver that the labor was performed under a contract, express or implied, but it is not necessary to name the contract, when the facts stated amount to a contract: 12 so it must be shown that the contract was made with the owner or his agent.13 And it is not sufficient to allege in the complaint that a person contracted with the plaintiff, to entitle the plaintiff to make him a party defendant, and recover a personal judgment against him; he only is a contractor who contracts with the owner of the premises.15 But under a complaint to enforce a mechanic's lien, alleging that the defendant is the owner of the land on which the building was erected, proof that the defendant is the owner of the building, with a right to remove it, and tenant for years of the land, is not a fatal variance, and will justify a decree for the sale of the building and term.16 The complaint should aver that the lien was filed within the time limited, before the commencement of the action; 17 but the omission is one which should be taken advantage of by demurrer, and is cured after trial and

verdict.18 So the complaint should describe the property to be charged, and allege that the defendant had an interest in the property.19 It should allege that the materials were furnished for the building sought to be charged with the lien, and it is not sufficient to aver that they were furnished to the contractor or owner, and were used in the construction of the building.20

1 Davis v. Alvord, 94 U. S. 545; Willer v. Bergenthal, 50 Wis. 474; Huse ". Washburn, 59 Wis. 414. A proceeding to enforce a mechanic's lien in New York is not an action within the meaning of the Code, but a special proceeding: Hallahan v. Herbert, 57 N. Y. 409; Leavy v. Gardner, 63 N. Y. 624.

2 Davis v. Alvord, 94 U. S. 545; Willamette Falls etc. Co. v. Smith, 1 Oreg. 171; Rowley v. James, 31 İll. 298.

3 Childs v. Bostwick, 65 How. Pr. 146; Weyer v. Beach, 79 N. Y. 412.

4 Conkright v. Thompson, 1 Smith, E. D. 661; Foster v. Poillon, 2 Smith, E. D. 556; Mason v. Heyward, 5 Minn. 74; Tinsley v. Boykin, 46 Tex. 599; Shaw v. Allen, 24 Wis. 564; Pool v. Sanford, 52 Tex. 621; Gault v. Soldani, 34 Mo. 150; Hicks v. Murry, 43 Cal. 515; Hoffman v. Walton, 36 Mo. 613.

5 Pool v. Sanford, 52 Tex. 621; Kechler v. Stumme, 4 Jones & S. 337; Ark. etc. R. R. Co. v. McKay, 30 Ark. 68%.

6 Harmon v. Ashmead, 60 Cal. 439. 7 Roberts v. Campbell, 59 Iowa, 675; Iowa, 280; Bailey v. Johnson, 1 Daly, 67; How. Pr. 130; 10 Daly, 547.

Stubbs v. Railroad Co, 62
Leiegne v. Schwarzler, 67

8 Leiegne v. Schwarzler, 67 How. Pr. 130; 10 Daly, 547.

9 Huse v. Washburn, 50 Wis. 414. But see Stubbs v. Railroad Co. 62 Iowa, 280.

10 Mann v. Schroer, 50 Mo. 306; Duffy v. Brady, 4 Abb. Pr. 432; Huse v. Washburn, 59 Wis. 414. And see McGee v. Piedmont Manuf. Co. 7 S. C. 263.

11 Leiegne v. Schwarzler, 67 How. Pr. 130; 10 Daly, 547. And see Hubbell v. Schreyer, 15 Abb. Pr. N. S. 304. Compare McElwee v. Sanford, 53 How. Pr. 89.

12 Nolan v. Lovelock, 1 Mont. 224. And see Fulton Iron Works v. Smelting Co. 80 Mo. 265.

13 Wilcox v. Keith, 3 Oreg. 372; Peck v. Bridwell, 6 Mo. App. 451; Clark v. Raymond, 27 Wis. 456; Porter v. Tooke, 35 Mo. 107; Shaw v. Allen, 24 Wis. 563; Clark v. Schatz, 24 Minn. 300.

14 Gothard v. Lavalle, 4 N. Y. Month. Law Bull. 30.

15 Gothard v. Lavalle, 4 Y. N. Month. Law Bull. 30. Wilcox v. Keith, 3 Oreg. 372.

16 McCarty v. Burnet, 84 Ind. 23.

And sec

17 Peck v. Hensley, 21 Ind. 344; Dean . Wheeler, 2 Wis. 224; McCrea v. Craig, 23 Cal. 522; Ark. etc. R. R. Co. v. McKay, 30 Ark. 682. And see Hamilton v. Naylor, 72 Ind. 171; Lawton v. Case, 73 Ind. 60.

18 Skyrme v. Occidental Mill etc. Co. 8 Nev. 219.

19 Shaw v. Allen, 24 Wis. 563; Knox v. Starks, 4 Minn. 20; McCarty v. Van Etten, 4 Minn. 461. And see Thomas v. Smith, 42 Pa. St. 68; Harman v. Cummings, 43 Pa. St. 322.

20 Crawfordsville v. Barr, 45 Ind. 258; Hill v. Sloan, 59 Ind. 181; Lawton v. Case, 73 Ind. 60.

? 166. Lien, mechanic's — Answer. — In a suit to enforce a mechanic's lien, it is held to be a good defense to the owner that there are liens upon the premises prior to that of the plaintiff, exceeding in amount the sum due from the owner. And where the defenses were: (1) That the agreed price was payable by installments, and that the notice of lien was not filed within six months after the first installment became due; and (2) that there was an action at law pending to recover the same amount, it was held that the defenses were not irrelevant or frivolous.2 Where the defendant in his answer denied all knowledge of the plaintiff's furnishing any materials, and that he gave him any notice of his lien, and then, as a counter-claim, alleged that the plaintiff guaranteed that the contractor should erect the building in a workmanlike manner, and complete it by a certain date, and asserted that neither condition was fulfilled, and claimed damages for their breach, it was held that this defense was admissible as a counter-claim, and was not inconsistent with the prior defenses. And where the answer set up the failure of the plaintiff to complete the work according to the written contract, and enumerated some of the particulars in which the work was defective, and claimed to recoup damages therefor, it was held that the plaintiff must prove performance in accordance with the written contract to entitle him to recover. The demand and refusal to pay, averred in the plaintiff's affidavit to foreclose a merchant's lien, may be traversed and denied by the defendant's counter-affidavit, and form an issue to be tried,

« PreviousContinue »