gno.law

Quale v. Moon

California Supreme Court · No. 2,931 · 1874-07-01 · Published · 48 Cal. 478 · 1874 Cal. LEXIS 183

PETER QUALE v. A. MOON and JOHN CLARK

Area
civil
Panel
E. W. McKinstry (author)

Analysis

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Opinion — McKinstry

By the Court, McKinstry, J.:

The demurrer to the answer oí defendant Moon to plaintiff’s amended complaint was properly sustained. The lien of the plaintiff did not depend óh and was not suspended until the completion of the building.

The answer does not aver that the builder, having neglected “to supply a sufficiency of materials,’’was notified by the defendant to proceed with the works within three days, or that he (the defendant) would complete the house himself. Nor does it aver that the sum-paid by the defendant to the builder, before the abandonment by him of his work and contract, was due when the same was paid; nor that the aggregate of the liens foreclosed in this action exceeds the amount which was to be paid the builder; nor that the sums by defendant paid out after the alleged abandonment by the builder were paid to complete the building according to the terms of the contract.

The Act under which this suit was brought does not violate the provision of the Constitution: “All laws of a general nature shall have a uniform operation.” The other constitutional objection suggested by appellant does not arise out of the facts of this case.

There is no misjoinder of causes of action in the amended cross-complaint of defendant Higgins.

.Judgment and order denying new trial, .affirmed.» Bemittitur forthwith. ■ ."OÍa¡i Mr. Chief Justice Wallace did not express an: opinigny.

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