J. S. DICKSON and WM. ANDERSON, Respondents, v. DANIEL G. CORBETT, Appellant
Dickson v. Corbett
J. S. DICKSON and WM. ANDERSON, Respondents, v. DANIEL G. CORBETT, Appellant.
[No. 767.]
J. S. DICKSON and WM. ANDERSON, Respondents, v. DANIEL G. CORBETT, Appellant.
Foeeclositbe 03? Mechanio’s Lien—Pleadings.—Where the complaint states a case for relief, alleging that the work was done and the materials furnished at the special instance and request of one J. J. Bennett, the agent of the defendant, and where none of the allegations in the complaint wore denied: Held, that a plea that “plaintiffs ought not to bo allowed to maintain this action, for that on the — day of May, 1S75, they obtained a judgment for the same debt against J. J. Bennett,” constitutes no defense to the action.
Idem.—The fact that plaintiffs recovered a judgment against Bennett only proves that Bennett made himself also personally liable on the contract which he entered into on behalf of his principal.
Agency, when must be denied.- -The argument of appellant is, that Bennett was not his agent but his tenant, and had no authority to bind him or his estate: Held, that if this was true appellant should have alleged the facts in his answer.
Mechanic’s Lien — Description 03? Peemises. — Where the complaint described the property as a large building on certain lots in a certain block belonging to the defendant, together with a convenient space of land around the same: Held, that the description was sufficiently specific.
Appeal from tbe District Court of tbe Second Judicial District, Ormsby County.
This case was originally brought in tbe justice’s court to foreclose a mechanic's lien upon the following described real estate, situate in tbe county of Ormsby, state of Nevada, and more fully described as follows, to wit: Being a large structure on block 66, lots 3, 4, 5, 6, 7 and 8 of Musser’s Division of Carson city, opposite tbe United States mint, and belonging to D. H. Corbett, together with a convenient space of land around tbe same.
Tbe other facts are stated in tbe opinion.
Thomas H. Wells, for Appellant.
I. Respondents liad no right to maintain any action against appellant upon the cause of action herein alleged. Their original cause of action, their account, had been extinguished by their judgment obtained thereon against Bennett, in the justice’s court, in which they proved, to the satisfaction of the court, that Bennett, not Corbett, was the one for whom they worked and who owed them the debt. When they sued Corbett on the same caíase of action, they did not cancel, satisfy or release said judgment, or offer to do so, or pray that it be done, or plead any fraud or mistake, in the obtaining of it, which should relieve them from being bound by it. They cannot obtain a second judgment for the same debt while the first remains in full force and effect.
• It is apparent from the record that the lien, if they had the right to put one on anything, after suing and obtaining a judgment, might have been, and ought to have been, put upon the interest, the leasehold estate of Bennett, in the property set out in the lien.
II. The judgment is erroneous, because the record shows that no proof was ever offered to support the validity of the claim or of the lien. The judgment was rendered as if by default in a suit simply for money due on debt.
III. Section 14 of the lien act does not mean to give two remedies at one and the same time, in cases of this class, any more than in contract mortgage cases. It means that, though a party may have taken and filed his lien, he may, before suit brought to enforce, waive that remedy and bring his personal action to recover the debt. (27 Cal. 358; 32 Id. 176; 10 Id. 22; 30 Blkst. Com. 302.)
Robert M. Clarke, for Respondent.
Plea is not good. (Lien Law, Stat. 1875, p. 124, sec. 14; 16 Cal. 140; 2 B. Monroe, 257; 8 Id. 429; 4 Md. 269; 8 Johns, 361; 4 Md. Oh 75; 2 Id. 1.
By the Court,
Beatty, J.:
This is the same case in which a motion to dismiss the . appeal was overruled at the January term, (10 Nev. 439.) Tbe appeal is from tbe judgment, and but one question arises upon tbe record: Did tbe court err in sustaining tbe motion of plaintiffs for judgment on tbe pleadings?
Tbe suit is to foreclose a mechanic's lien and was commenced in a justice's court. It is not pretended that tbe complaint does not state a case for tbe relief decreed. It alleges inter alia that tbe work was done and tbe materials furnished at tbe special instance and request of one J. J. Dennett, tbe agent of tbe defendant. No allegation of tbe complaint is denied in tbe answer, tbe defendant relying solely on tbe following plea: "Plaintiffs ought not to be allowed to maintain this action for that on tbe-day of May, 1875, they obtained a judgment for tbe same debt 'against J. J. Bennett in this court." Tbe defendant bad judgment in tbe justice's court, but on appeal to tbe district court the plaintiffs recovered a judgment on tbe pleadings, from which tbe defendant appeals; and the sole question for our decision is whether tbe plea, admitting it to be true, avoids tbe original liability which the defendant lias admitted by failing to deny tbe allegations of tbe complaint? We think it does not. Tbe fact that plaintiffs have recovered a judgment against Bennett only proves that Bennett made himself also personally liable on tbe contract which be entered .into on behalf of bis principal, which be may have done by failing to disclose bis agency or by tbe form of tbe contract. In such case Corbett is also liable, and an unsatisfied judgment against Bennett is no bar to an action against Corbett. Especially"is this so when tbe object of this proceeding is not to obtain a personal judgment against Corbett, but to enforce tbe lien upon bis property. He does not deny that bis property was subject to tbe lien, but plants liimself upon tbe bald proposition that tbe lien is extinguished by an unsatisfied judgment against bis agent. We have been cited to no authority, and we know of none which supports such a view. Appellant suggests in bis argument that Bennett was not bis agent, but bis tenant, and bad no authority to bind him or bis estate. If this is true, it should have been so stated in tbe answer. As tbe record stands, Bennett's agency is admitted, and we can look to nothing else.
It is said to have been an error in the district court to make the decree without any testimony as to the part of the premises subject to the lien. But as to this matter, we think the complaint was sufficiently specific, and the decree follows it.
Judgment affirmed.