with the original. The judgment is reversed, with directions to the superior court to dismiss the action.

We concur: DE HAVEN, J.; FITZGERALD, J.

(103 Cal. 104)

WAGNER v. HANSEN et al. (No. 15,403.) (Supreme Court of California. June 13, 1894.) MECHANIC'S LIEN-NOTICE OF CLAIM - ENFORCEMENT-VARIANCE.

1. Code Civ. Proc. § 1187, requires the statement for a mechanic's lien to be essentially true. Held, that a notice of lien was insufficient where it stated that the claim was for labor and materials, while only labor was furnished.

2. Where the complaint and claim of lien state that the work was done for an agreed price, and the evidence shows no price was agreed on, there is a fatal variance.

Commissioners' decision. Department 2. Appeal from superior court, San Francisco county; John Hunt, Judge.

Action by Ferdinand Wagner against Margaret Hansen and another to enforce a mechanic's lien. Judgment for plaintiff, and defendants appeal. Reversed.

Morrison & Foerster, for appellants. Henry H. Davis for respondent.

TEMPLE, C. This action was brought to enforce a mechanic's lien. Plaintiff had judgment, and defendant M. Hansen appeals from the judgment and from an order refusing a new trial. In his complaint plaintiff avers that he agreed with defendants "to furnish, and did furnish, the labor, at their special instance and request, in completing the foundation of said premises, build the chimneys, laying wall plates, laying out building, underpinning walls, building scaffolding, carrying brick, completing brick walls and brick foundation upon said dwelling house, upon said lot of land, and for all which said work, labor, and materials said defendants agreed to pay said plaintiff the sum of $163." It is again alleged that plaintiff agreed with defendants to perform the work and labor, and defendants "agreed to pay plaintiff the sum of $163 in the gold coin of the United States, but that no time was specified for the payment other than that said defendants were to pay plaintiff when said work was completed." In the notice of lien which is set out in the complaint, plaintiff, to show compliance with section 1187 of the Code of Civil Procedure, states the terms, time given, and conditions of his contract, as follows: "I, Ferdinand Wagner, am the contractor for the brick work and foundation and extra work, who, on the 9th day of April, 1889, as such contractor for the brick work and foundation, entered into a contract with said M. Hansen and Margaret Hansen, under and by which I completed said foundation and brick work and extra work, and the following is a state

ment of the terms, time given, and condition, of said contract, to wit: I, Ferdinand Wagner, was to furnish the labor and materials in completing the foundation of said premises, build the chimneys, laying wall plates, laying out building, underpinning wall, building scaffolding, carrying brick, completing brick walls and brick foundation, for which I was to receive upon said completion of said work the sum of $163 in United States gold coin for said extra work,'"

The complaint was demurred to for insufficient facts and as being uncertain, also for ambiguity, and under each head it was specified that it could not be ascertained from the complaint whether plaintiff was to be paid $163 for work and materials or for work only, nor for what work he was to be paid; also, that the complaint averred that he was to be paid $163 for work only, while his claim of lien stated that he was to be paid $163 for work and materials furnished. The demurrer was overruled, and that ruling is now complained of. I think the demurrer should have been sustained. Such a notice and claim of lien does not contain a true statement of the terms of the contract, as required by section 1187 of the Code of Civil Procedure. There was no other statement as to the nature of plaintiff's demand in the claim of lien. There was no account of services rendered. The purpose of the record and statement must be to inform the owner, in case of a contractor and laborers rendering service under such contract, as to the extent and nature of a lienor's claim, to facilitate investigation as to its merits. Such a statement as the above would be misleading. The lienor is required to verify the statement. In all essential particulars it must be true. See, on this point, Frazer v. Barlow, 63 Cal. 71; Malone v. Mining Co., 76 Cal. 578, 18 Pac. 772; Eaton v. Malatesta, 92 Cal. 75, 28 Pac. 54. Respondent's only reply to this objection is that it is a mere technicality. Plaintiff's claim to a lien is a mere technicality. He is given a right upon condition that he complies with the statute, and there must be a substantial compliance with all these conditions to the right. Wood v. Wrede, 46 Cal. 637.

On the trial, plaintiff testified that, except as to one item, amounting to only $18, there was no agreed price for any work done; that there was no agreement to pay for plaintiff's labor, or for labor and materials, $163, or any other specified sum. No other evidence was given upon the subject. Defendants moved for a nonsuit on the ground that there was a fatal variance between the evidence and the statement in the complaint and ir the claim of lien, in both of which it was stated that the work was done under a con tract by which he was employed to do speci fied work at a price agreed upon. The nonsuit should have been granted. This was not only a variance, but it showed that the stat ute had not been complied with, and that

to conceive of any terms of the contract of employment more material than this. In the case of a laborer employed by a contractor, the owner might well venture to pay a claim, where the amount had been agreed upon as between the laborer and the contractor, without further evidence than the lienor's oath. Had the statement shown that the value of the service was left open, the owner would be compelled to agree with the contractor, and perhaps with other lienors, as to the amount, or to pay such sum only as he could undertake to show was reasonable. There was no contractor here between the lienor and the owner, but the statute has made one rule for all, and that must be determined in view of all cases likely to arise under the statute. I think the judgment and order should be reversed.

We concur: SEARLS, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed.

(103 Cal. 132)

HART V. CARNALL-HOPKINS CO. (No. 15,467.)

(Supreme Court of California. June 16, 1894.) JUSTICE OF THE PEACE JURISDICTION-TITLE TO LAND-WHEN PUT IN ISSUE CONSTRUCTION OF PLEADINGS-APPEAL TO SUPERIOR COURT.

1. Plaintiff alleged that defendant agreed to locate him on vacant government land, which it failed to do. Defendant admitted the contract, and alleged that it did locate plaintiff on vacant government land; "that defendant is informed and believes that plaintiff claims that said lands were not vacant government lands, but that they were in the possession of some other person; and that defendant alleges that they were not in the possession of some other person at the time of the location of plaintiff thereon." Held, that the title and possession of real property was not necessarily put in issue by the pleadings, so as to deprive a justice of the peace of jurisdiction.

2. On appeal from a justice of the peace to the superior court, the latter court, on determining that the justice had no original jurisdiction, because title to land was involved, may properly try such question of title as a court of original jurisdiction.

3. If the issue of title or possession of land is so involved that it must be decided in order to determine the case, although only "inciden tally" involved, the superior court has original jurisdiction.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; J. C. B. Hebbard, Judge.

Action by James D. Hart against the Carnall-Hopkins Company for damages for nonperformance of a contract. Judgment for plaintiff, and defendant appeals. Affirmed.

Wm. II. Chapman, for appellant. Edwin L. Forster, Fisher Ames, and S. V. Costello, for respondent.

to recover damages consequent upon the alleged nonperformance of an agreement. It was alleged in the complaint that, in consideration of $100, the defendant agreed “to locate the plaintiff on certain vacant government land in the county of San Benito, state of California; but this plaintiff avers that said defendant failed to carry out and fulfill said contract and agreement, in that they [it] failed and neglected to locate this plaintiff on said or any lands pursuant to their said contract." A copy of the contract is set out in the complaint as follows: "San Francisco, July 22, 1892. Received of J. D. Hart, Esq., one hundred ($100) dollars, in full payment for ten (10) shares of the capital stock of the San Carlos Oil Company, and our services for locating the said J. D. Hart, Esq., on the limit of the number of acres allowed by the homestead law, not to exceed one hundred and sixty (160) acres. Said location to be on vacant government land in San Benito county, California. The Carnall-Hopkins Co., by Gibbs and Zimmerman, Mngs. C. A. Dep."

*

Those parts of the verified answer of the defendant pertinent to the questions raised on this appeal are substantially as follows: (1) Defendant alleges "that the determination of this action will necessarily involve the question of title and possession to real property, to wit, the title and possession of the northwest quarter of section 27, township 16 S., of range 10 E., county of San Benito, state of California." (2) Admits the execution of the instrument of July 22, 1892, above set out, and the receipt of $100 therein mentioned; and alleges "that defendant did locate plaintiff on vacant government land in San Benito county, Cal., and said location was on the northwest quarter of section 27, township 16 S., R. 10 E., in said county, and said property was at said time open to location, and no other person had any valid claim thereto. * That defendant is informed and believes that plaintiff claims that said lands were not vacant government lands, but that they were in the possession of some other person; and defendant alleges that they were vacant government lands, and not in the possession of any other person at the time of the location of plaintiff thereon; and, in consequence thereof, the determination of this action involves the title and possession of real property. 容 Wherefore defendant asks that judgment be rendered and entered in favor of defendant for its costs, that plaintiff take nothing herein, and that this court suspend all further proceedings herein." The docket of the justice of the peace shows that the action was tried January 3, 1893, the parties being represented by their attorneys; that three witnesses testified on behalf of plaintiff, and that no evidence was offered on behalf of the defendant; and that the cause was submitted by the parties, and that judgment was rendered in favor of the plaintiff for

the sum of $165 damages and for costs. From this judgment the defendant appealed to the superior court of the city and county of San Francisco "upon questions of both law and fact." The cause was tried de novo in the superior court, where plaintiff again recovered judgment against the defendant for the sum of $168.85 and costs, from which, and from an order denying its motion for a new trial, the defendant appealed to this court.

Respondent moved in department 1 of this court to dismiss the appeal on the ground that the judgment of the superior court was final. On this motion an opinion denying it was written by Mr. Justice Paterson, concurred in by Mr. Justice De Haven. 35 Pac. 633. Mr. Justice Harrison concurred in the order denying the motion, but, after alluding to the averments of the complaint and answer above set out, said: "From these averments we cannot determine whether the title or possession of real property is necessarily involved. What significance must be given to the term 'locate' must depend upon the sense in which it was used by the parties to the agreement, and whether the property upon which the defendant claims to have 'located' the plaintiff in purported performance of its agreement was 'open to location,' or whether any person had a 'valid claim' thereto, may present questions involving the title or possession of real property. Upon the present motion we are limited to the averments in the pleadings, and cannot look at the evidence introduced in support thereof. If, upon the hearing of the appeal on its merits, it shall appear that the case before the court below did not involve the title or possession of real estate, we can then dismiss the appeal. But upon the matter as now presented the motion should be denied." Upon the whole record, including the evidence brought up in the bill of exceptions on which the motion for a new trial was made, the sense in which the word "locate" was used, understood, and acted upon by the parties is quite apparent. It is that the defendant was to lead or direct the plaintiff to, and point out to him, public land of the United States, which was subject and open to be settled upon and entered as a homestead by any person having the qualifica tions required by law to settle upon and enter such land. Of course, the settlement and entry were to be made by the plaintiff himself, according to the laws of the United States, which will not permit these acts to be done for him by another, and so the plaintiff understood and acted upon the contract. After the northwest quarter of section 27, township 16 S., had been pointed out to him by defendant, the plaintiff applied at the United States land office "to file upon" that quarter section under the homestead laws, and paid the requisite fees, etc., for that purpose; and it appeared from the evidence on the trial in the superior court that

his only complaint was that the land was not subject or open to a homestead settlement or entry, for the reason that one Benvenga had made a prior settlement thereon, and was in possession thereof at the time the land was pointed out to him by defendant, and at the time he applied to the land office to file his application. On the trial in the superior court, it having been proved and admitted that the land had been selected and pointed out to plaintiff by defendant, and that it was government land, the question arose whether or not Benvenga was a settler upon and was entitled to the possession at the time the land was pointed out to plaintiff by defendant; and this question was material for the purpose of determining whether the defendant had complied with its contract to point out vacant public land, and was the principal question contested in the superior court, although it does not appear to have arisen or to have been tried in the justice's court; and I think, as suggested by Mr. Justice Harrison, that the pleadings do not show that title or possession of real property was or would be necessarily involved in the trial. The allegation of the complaint is that the defendant failed to point out ("to locate the plaintiff on") any land pursuant to the agreement; and, had the proof shown that defendant had failed to point out to plaintiff any government land, such proof would have disposed of the case in plaintiff's favor, regardless of any question of title or possession of real property; and, for aught that appears, such may have been the proof in the justice's court, where, as shown by the record, the defendant introduced no evidence whatever. Nor did it appear by the answer of the defendant that title or possession of real property was necessarily involved, but only that it would become involved upon the happening of certain contingent events, namely, if, in case of proof that defendant pointed out to plaintiff government land, the plaintiff should then claim, as defendant was informed and believed he would, that such land was not vacant government land, but was in the possession of some other person. Besides, the answer contained no prayer for a transfer of the cause to the superior court, nor does it appear that either of the contingent events above mentioned happened in the justice's court.

For aught that appears on the face of the record here, the justice of the peace did not exceed his jurisdiction in proceeding to try the case, nor in rendering final judgment, since it does not appear that the predicted contingent events occurred on the trial in the justice's court. Had they occurred during that trial, however, the justice, in obedience to section 838 of the Code of Civil Procedure, should have declined to hear evidence touching the question of possession thereby raised, and should have certified the pleadings (both written and oral), with a .

copy of his docket, to the superior court; and, if he had failed or refused to do so, the defendant might have appealed on questions of law alone, whereupon, by a statement according to section 975 of the Code of Civil Procedure, he could have shown the occurrence of the contingent events predicted in his answer, and that evidence had been admitted upon the question as to whether the land "was in the possession of some other person;" but in no other way could he have made it appear to the appellate court that the right of possession of real property became involved on the trial in the justice's court, since it did not so appear on the face of the pleadings, nor from the copy of the docket, or any other paper which the justice was required to transmit to the superior court. It is true, however, that if the pleadings had shown that the right of possession of real property was necessarily involved, or if the docket or other papers properly sent up by the justice had shown a want of jurisdiction for any other reason, there would have been no necessity for a statement (Southern Pac. R. Co. v. Superior Court, 59 Cal. 474); but in the case at bar no error appears in the docket or other papers sent up by the justice. Besides, instead of appealing on questions of law alone, the defendant appealed upon questions of both law and fact, thereby necessitating a trial de novo in the superior court; yet, when the case was called for trial in that court, and the plaintiff proceeded to offer evidence, defendant objected to any trial de novo on the alleged ground that the superior court had no jurisdiction, for the reason that the justice's court had not jurisdiction of the subject-matter originally, claiming that it appeared by the answer that a question as to the possession of real property was necessarily involved. The court overruled this objection, and proceeded with the trial, to which the defendant excepted.

The principal point urged here by appellant is that the superior court erred in overruling this objection, and in trying the case de novo, whereas it should have reversed the judgment of the justice's court, and remanded the cause, with instruction to certify a transcript thereof back to the superior court in the mode provided by section 838 of the Code of Civil Procedure. Conceding, for the sake of the argument, that the justice's court had not jurisdiction of the subject-matter, and that the superior court had no appellate jurisdiction to try the issue as to the possession of real property, yet the superior court had original jurisdiction of all questions pertaining to possession of real property, and, having jurisdiction of the parties, properly tried the issue as to whether Benvenga was entitled to possession of the land; that being the only material issue contested in the superior court. City of Santa Barbara v. Eldred, 95 Cal. 378, 30 Pac. 562. The defendant cannot be heard to deny that the superior court had jurisdic

th

tion of the parties, since it. not only appealed the case to that court to be there tried on questions of both law and fact, but it voluntarily appeared and moved for judgment of reversal on the record which it had procured to be transmitted to that court, and also made its defense on the merits by offering evidence on the trial; and all this, without even suggesting that its appearance was limited to any special purpose. Nor, as before remarked, did it appear on the face of the transcript transmitted to the superior court that the right of possession of real property was necessarily involved, nor that any issue relating to such possession had been tried in the justice's court. For aught that appears, that issue was first developed in the course of the trial in the superior court, by proof that defendant had pointed out to plaintiff government land, representing it to be vacant, and by evidence on the part of plaintiff tending to prove that the land so pointed out was not vacant. When this issue was thus developed, the superior court was not obliged, as contended by appellant, to reverse the judgment of the justice of the peace, and to remand the case for the purpose of having it transferred to the superior court, according to section 838, Code Civ. Proc., in order to obtain original jurisdiction to try it, since the superior court had such original jurisdiction without this circuitous, dilatory, and vain process. Yet the relief asked here by appellant requires a still circuitous and dilatory proceeding, which is that this court reverse the judgment and order of the superior court, and remand the cause, "with instructions to vacate the judgment of the justice's court, and order the papers certified to the superior court in accordance with section 838, Id. ;" and all this, it is claimed, is necessary to give the superior court original jurisdiction of the subject-matter.

more

From the foregoing considerations it follows that the superior court obtained original jurisdiction of the issue as to the possession of Benvenga, and did not err in trying the case de novo; and, from this conclusion that the superior court properly exercised original jurisdiction, it further follows that this court has appellate jurisdiction, and should deny respondent's motion to dismiss the appeal. In opposition to this, second conclusion, however, it is urged by respondent that possession of real property was only incidentally involved, and, therefore, the superior court had not original jurisdiction, and to this point respondent cites the case of Shroeder v. Wittram, 66 Cal. 636, 6 Pac. 737, in which the opinion of Mr. Justice McKee (in bank) seems to countenance his contention. But that opinion was concurred in by only one of the other justices, while two justices concurred in the judgment only, upon other grounds, and the chief justice wholly dissented. Therefore the opinion of Mr. Justice McKee on this point cannot be regardec

as authoritative, and was not so considered in the later case of Copertini v. Oppermann, 76 Cal. 181, 18 Pac. 256. It is clear that it was developed by the plaintiff's evidence on the trial in the superior court that Benvenga's prior settlement and right of possession were conditions upon which plaintiff's right to recover depended, and that the court must have decided whether or not these conditions existed, in order to determine the case; and it appears that evidence tending to prove them was introduced by plaintiff. It follows that the possession of real property was necessarily involved, in the sense of section 4, art. 6, of the constitution, which gives this court appellate jurisdiction "in all cases at law which involve the title or possession of real estate," without excepting cases in which the title or possession is only incidentally involved. If the issue of title or possession is so involved that it must be decided in order to determine the case, the superior court has original, and this court appellate, jurisdiction, whether the involution may be said to be merely incidental or not. Copertini v. Oppermann, 76 Cal. 181, 18 Pac. 256; Holman v. Taylor, 31 Cal. 341; Code Civ. Proc. § 838; Const. art. 6, §§ 4, 5, 11.

On the hypothesis that the superior court did not err in trying the case de novo, counsel for appellant contend that the judgment should be reversed for errors occurring at the trial. Only two of these points are sufficiently plausible to merit consideration, one of which is that the court erred in sustaining plaintiff's objection to the introduction in evidence of the following letter, offered by defendant: "San Benito County, July 24, 1892. Gentlemen: I have located upon the N. W. quarter of section 27, T. 16 S., R. 10 E., and am well pleased with my location, and have found everything as represented to me by your agent. James D. Hart." Conceding that the court should have admitted this letter, I think the error was harmless. Plaintiff filed his application in the land office August 1, 1892, 6 days after writing this letter, and 23 days before Benvenga filed his application for the same land and gave notice of his contest, which he did on August 24, 1892. Before the letter was offered by defendant, plaintiff had repeatedly testified that until he received notice of Benvenga's adverse claim he was well pleased and fully satisfied with the land, and there was no evidence to the contrary. The proffered letter would have added nothing to plaintiff's testimoney and admissions on the trial.

It is also contended that there is no finding upon the issue tendered by the answer "as to the land being open and vacant." The finding is: "But that said defendant failed to carry out and fulfill its contract and agreement, in that it failed and neglected to locate this plaintiff on said land, or any land or lands, pursuant to its said contract; nor has said defendant, since the date of said contract and agreement, ever offered to lo

1. An authorization in writing to sell land, signed by the party to be charged, is valid under Civ. Code, § 1624, subd. 6.

2. A broker's right to commissions for procuring a purchaser for land under an agreement therefor is not affected by the fact that he knew the principal had title to only five-sixths of the land.

3. One who is entitled to certain fixed damages, the right to recover which is vested in him on a particular day, is entitled to interest thereon from that day, except during such time as the debtor is prevented by law or by the creditor's act from paying the debt. Civ. Code, § 3287.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; John Hunt, Judge.

Action by Wheeler Martin against William Ede. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

J. C. Bates, for appellant. Sullivan & Sullivan, for respondent.

SEARLS, C. This is an appeal from a judgment in favor of the plaintiff, Wheeler Martin, for $905.45, and from an order denying a motion by defendant for a new trial. The action was brought to recover the sum of $750 for commissions due to the plaintiff (who is respondent here) as a broker in effecting the sale of certain property belonging to appellant. The authorization under which the former acted is in writing, and in the following language: "San Francisco, August 3, 1887. Mr. Wheeler Martin: As you stated you could get thirty thousand dollars for the place you occupy on Market street, and if you can, we will sell at that price any time before the 1st day of September, 1887, and allow you two and one-half per cent. on said price, and, if no sale is made, no expenses made to us. Yours, truly, William Ede."