2. Averments as to Ownership. In a proceeding to enforce a mechanics' lien under the statute, the complaint should show that the contract was made with an owner or his agent. The complaint of a subcontractor must show that the contracting owner had some interest in the property, at the time of filing the notice. If it is defective in this, a motion to dismiss must prevail.2 3 3. Averments of Contract.-A petition to enforce a mechanics' lien must allege a contract with the owner, and in some States it must contain a brief statement of the contract upon which it is founded; that is, it must show what the contract was.4 1. Wilcox v. Keith, 3 Oreg. 372; Carman v. Scribner, 3 Houst. (Del.) 554; Malter v. Falcon Min. Co., 18 Nev. 209; Reindollar v. Flickinger, 59 Md. 469; Hooper v. Flood, 54 Čal. 218; Hawley v. Henderson, 34 Miss. 261; Ayres v. Revere, 25 N. J. L. 474; Tomlinson v. Degraw, 26 N. J. L. 73; Thomas v. Industrial University, 71 Ill. 310; Redman v. Williamson, 2 Iowa 488; Simpson v. Dalrymple, 11 Cush. (Mass.) 308; Quackenbush v. Carson, 21 Ill. 99; Burkitt v. Harper, 79 N. Y. 273; Flin v. Davis, 2 Wyoming 118; Clark v. Raymond, 27 Mich. 456. An allegation in the complaint, that in his claim filed under the mechanics' lien law, the plaintiff described the premises as those purchased and occupied by M, is not a sufficient averment of the ownership of M, because it is not an averment that the plaintiff has stated in his claim that M owned the property and does not aver who owned the premises at the commencement of the action. Hicks v. Murray, 43 Cal. 515 Where A is both builder and owner, and the summons is against him only as builder, it may be amended before or after pleading to the declaration, but an appearance and pleas appropriate to the owner waive the objection. Cornell v. Matthews, 27 N. J. L. 522. Where there is neither allegation nor proof that the defendant is the owner of the building, the claimant cannot recover; but where the defendant in the marine or justices' court goes to trial and to judgment without raising any objection on this ground, the judgment will not be reversed for the want of such proof. Dixon v. La Farge, 1 E. D. Smith (N. Y.) 722. Where in an action to enforce a mechanics' lien, the petition failed to show that defendant was the owner of the land, held, that the personal judgment was valid but a judgment against the land erroneous. Flin v. Davis, 2 Wyoming 118. Where a petition to enforce a mechanics' lien states that the labor was performed for one who was the equitable owner of the lot, though the legal title was in another, and both are made defendants, and the court, after hearing evidence as to the title, renders judg ment against the party for whom the labor was performed, and orders that in default of payment thereof by him or the owner of the legal title, a special execution issue against the land, and that the same be sold, the purchaser at the sale under such execution will acquire the legal title. Lewis v. Rose, 82 Ill. 574. Property of Married Woman.-Where the owner of the building, a feme sole, intermarries before the completion of the work, the complaint to enforce a lien on it, need not allege that it is her separate property. Caldwell v. Asbury, 29 Ind. 451. 2. Bailey v. Johnson, 1 Daly (N. Y.) 61; Shaw v. Allen, 24 Wis. 563; Lawton v. Case, 73 Ind. 60; Thomas v. Industrial University, 71 Ill. 310. 3. Parker v. Savage Placer Min. Co., 60 Cal. 348; Walker v. Paine, 2 E. D. Smith (N. Y.) 662; Miller v. Bedford, 86 Pa. St. 454; Quinn v. New York, 2 E. D. Smith (N. Y., 558; Broderick v. Poillon, 2 E. D. Smith (N._Y.) 554; Pendleburg v. Meade, 1 E. D. Smith (N. Y.) 728; Dixon v. La Farge, 1 E. D. Smith (N. Y.) 722; Gay v. Brown, I E. D. Smith (N. Y.) 725; De Ronde v. Olmstead, 47 How. Pr. (N. Y.) 175. 4. Simpson v. Dalrymple, 11 Cush. (Mass.) 308; Logan v. Attix, 7 Iowa 77; Gogin v. Walsh, 124 Mass. 516; Logan v. Dunlap, 4 Ill. 188; Summerman v. Knowles, 33 N. J. L. 202; Cook Petitioners for the benefit of a mechanics' lien must show, in their pleading, a time within which the contract was to be performed by the agreement, and the time when the money was to be paid; and on the hearing these allegations must be proved.1 If a petition to establish a mechanics' lien declares on a quantum meruit, and the proof shows a written contract, this is not fatal to the lien, where the price charged is not in excess of the contract price, and where the work and materials are shown to have been put into the building and to have been worth the price charged.2 The complaint of a subcontractor who seeks to enforce a mechanics' lien for labor or materials, should show that his own contract with the contractor was made in conformity with the terms of the contractor's contract with the owner. Where it fails to show this the plaintiff will be required, on motion, to make his complaint more definite and certain in this respect.3 The objection that a petition to enforce a mechanics' lien does not fully set out the agreement of the mechanic with the owner of the building, must be taken by demurrer.4 4. Description.-The land should be described with such cer v. Heald, 21 Ill. 425; McClurken v. Logan, 23 Ill. 79; Barker v. Winter, 15 Md. 1; McDaniel v. Weaver, 14 Ind. 517; Parker v. Savage Placer Min. Co., 61 Cal. 348; Phillips v. Gilbert, 2 Mac Arthur (D. C.) 415. Compare Pike v. Scott, 60 N. H. 469; O'Brien v. Logan, 9 Pa. St. 97. Waiving all question as to the competency of a wife to charge, by contract, her real estate with a mechanics' lien, for work done under a contract with her husband, a petition, seeking to charge such real estate with such lien, which does not aver that the work was done, or the materials were furnished, under a contract with the wife, is bad on general demurrer. Spinning v. Blackburn, 13 Ohio St. 131. Where a party prays a mechanics' lien, but his petition therefor does not set out the contract under which the materials were furnished and the work and labor performed and no bill of particulars is attached thereto, it is defective and the lien should not be established. Logan v. Attix, 7 Iowa 77. It is not sufficient to set out a note and aver that the note was given for work done on the defendant's mill or other building. Logan v. Dunlap, 4 Ill. 188; Mullen v. Smith, 3 Ill. 543. In a suit brought under section 3 of the mechanics' lien law of New Jersey against the defendant, as owner of a building, to recover a debt due for ma terials furnished to the contractor by If no tin.e was specified by the parties, an agreement to pay upon completion is implied; in which case the petition should allege an agreement to pay upon completion, and not an agreement to pay within a reasonable time thereafter. Burkhart v. Reisig, 24 Ill. 529. In a proceeding to enforce a mechanics' lien, the petition alleged that the work was to be paid for when fully completed, but the proof was that it was to be paid for by a certain date. Held, that the contract as alleged being different from the contract proved, the complainants could not recover. Bush v. Connelly, 33 Ill. 447. 2. Judd v. Duncan, 9 Mo. App. 417. See Rogers v. Powell, 1 Ill. App. 631. 3. Broderick v. Boyle, 1 Abb. Pr. (N. Y.) 319; Quin v. McOliff, 1 Abb. Pr. (N. Y.) 322. 4. Goulding v. Smith, 114 Mass. 487. tainty as would warrant a jury in identifying the property described as that described in the petition. The description of the premises must identify them consistently with that in the petitioner's, statement filed for record. The land described must be that upon which the labor was performed. No lien can be maintained on the land not included in the petition though it be contiguous to the parcel described. If it contains a description of more land than will be subject to the lien, the proceeding will not be void, if not done with a fraudulent intent.4 1. Martin v. Simmons, 11 Colo. 411; Bristow v. Evans, 124 Mass. 548, 552; Quackenbush v. Carson, 21 Ill. 99. See Shaw v. Barnes, 5 Pa. St. 18; Peck v. Bridwell, 10 Mo. App. 524; Holland v. McCarty, 24 Mo. App. 82; Munger v. Green, 20 Ind. 38; Dickson v. Corbett, II Nev. 277; Russell v. Hayden, 40 Minn. SS; Tredinnick v. Red Cloud etc. Min. Co., 72 Cal. 78; Duffy v. McManus, 3 E. D. Smith (N. Y.) 657; s. c., 4 Abb (N. Y.) Pr. 432; Kennedy v. House & Morton, 41 Pa. St. 39; National Lumber Co. v. Bowman (Iowa), 42 N. W. Rep. 557. A petition to enforce a lien upon a house and land, alleged that "the house is situated on a tract of twelve acres more or less, included in" a certain quarter section described in the petition, "and in that portion of said quarter section known and described as W . C's addition to Galena," and the said house is known and designated as "Argyle Cottage," in which said W C now resides. Held, that the lien was too indefinite, and the petition therefore bad on demurrer. Turney v. Saunders, 4 Ill. 527. A claim for a lien on "several buildings and a certain oil refinery" on land which is described (although erroneously), but which does not state the material, form, size, height or other description of the buildings sufficiently to identify them, is insufficient. Short v. Ames, 121 P. 530. In a petition under Stat. 1855, ch. 431, § 1, a description of a contract under which a mechanics' lien is claimed as "an oral contract between the petitioners on one part, and J S. carpenter and builder on the other part," is sufficient. Parker v. Bell, 7 Gray (Mass.) 429. When the claim of lien as filed for record, and the complaint, each describes with sufficient certainty the lot on which is situated the building or erection sought to be charged, it is no objection that a lien is also asserted and claimed on "the wharf and water privileges in front." Lane v. Jones, 79 Ala. 156. A description of a house and land, in a petition to enforce a mechanics' lien thereon, under Stat. 1855, ch. 31, § 1, as "a dwelling house situated on a piece of land in D, on a street or lane leading from E street nearly opposite C street, and near the house occupied by B, and the lot on which the same stands, is the same that was conveyed by H to said B and A as tenants in common,' is sufficient. Parker v. Bell, 7 Gray (Mass.) 429. See Patrick v. Smith, 120 Mass. 510. The notice of lien, by mistake, named lot 9, instead of lot 11, in block 7. in a town, but recited that the lien claimed was for lumber furnished by the plaintiffs to the contractor, and used by him in building for the defendants, recently, a brick building on the property described. The complaint, not otherwise challenged, averred the mistake, that the only building ever built for or owned by the defendants in block 7, was on lot 11, and not on lot 9, and is well known and can be identified by the description in the notice. Held, that the complaint was good on demurrer. Newcomer v. Hutchings, 96 Ind. 119. To entitle a contractor to a mechanics' lien, the statute (Wag. Stat., p. 909, § 5) requires him to file “a true description of the property, or so near as to identify the same, upon which the lien is intended to apply." To maintain a lien on a building situated on a certain acre of ground, fifteen acres were described by their exterior boundary. Held, that this was not "a true description of the property or so near as to identify the same" within the statute. Ranson v. Sheehan, 78 Mo. 668. 2. Bristow v. Evans, 124 Mass. 548. 3. Foster v. Cox, 123 Mass. 45; Landers v. Dexter, 106 Mass. 531; Rathburn v. Hayford, 5 Allen (Mass.) 406; Stevens v. Lincoln, 114 Mass. 476. 4. White Lake Lumber Co. v. Russell, 22 Neb. 126. 5. Averment as to Notice and Filing Lien.-The complaint must aver or show that the notice of intention to hold a lien was filed within the time prescribed by statute,1 and also filing of the lien.2 Where the lien law requires that a notice to create a lien shall be verified before filing a complaint in an action to foreclose a lien which contains no averment that the notice was verified, does not state facts sufficient to constitute a cause of action.3 6. Averments as to the Building. - Where the statutes give a lien only for material used in the construction of the building, it is 1. Crawfordsville v. Barr, 45 Ind. 258. See Crawfordsville v. Irwin, 46 Ind. 438; Irwin v. Crawfordsville, 58 Ind. 492; Clark v. Brown, 22 Mo. 140; Crawford v. Crockett, 55 Ind. 220; Heitzell v. Langford. 33 Mo. 396; Dallas L. & M. Co. v. Wasco W. M. Co., 3 Oreg. 527; Bailey v. Johnson, 1 Daly (N. Y.) 61; Gault 7. Soldani, 34 Mo. 150; Donnelly v. Libby, 1 Sweeny (N. Y.) 259; Moore v. Martin, 58 Ga. 411; Sens v. Trentune, 54 Tex. 218; Peck v. Hensley, 21 Ind. 344; Shields v. Morrow, 51 Tex. 393; Horan v. Frank, 51 Tex. 401; Loonie v. Frank, 51 Tex. 406; Poole v. Sanford, 52 Tex. 621. Compare Norfolk etc. R. Co. v. Howison, Si Va. 125. Where a complaint to foreclose mechanics' liens failed to show that they were filed within six months before the commencement of the action; held, that the omission was one which should be taken advantage of by demurrer and that after issue joined and decision rendered on the merits the pleading would be upheld by every legal intendment. Skyrme v. Occidental Mill & Min. Co., 8 Nev. 219. 2. Peck v. Hensley, 21 Ind. 344; Arkansas Cent. R. Co. v. McKay, 30 Ark, 682. Compare Princeton v. Gibhart, 61 Ind. 187. In a complaint in proceedings to foreclose a mechanics' lien, an allegation that "a notice in conformity with such statute to create and whereby there was created a lien" in plaintiff's favor, was "filed in the office of the clerk," etc., "and thereafter upon due notice to the defendant to appear herein and account, etc., an order was entered authorizing the putting in of the pleadings herein," is sufficient, in that it neither sets out the notice nor gives it substance; the word "due" being a mere conclusion of law and not statement of fact. Kechler v. Stunme, 36 N. Y. Superior Ct. 337. 15 C. of L.-11 161 3. Hallagan v. Herbert, 2 Daly (N. Y.) 253. A petition on a mechanics' lien which alleges that, on a certain day named, the plaintiff filed, etc., “a notice of lien claimed on said premises for the indebtedness aforesaid, which notice was duly verified, and specified the amount of the claim as above stated, and specified defendant Smit as the owner of said premises, which were therein fully described," is not a substantial compliance with the statute, and the defect is not cured by verdict. Fay v. Adams, 8 Mo. App. 566. If a person has furnished labor and materials, in the construction of a house, for an entire price, to be paid on the completion of the contract, and has given no notice of his intention to claim a lien for the materials, and can distinctly show what the labor was worth, he may enforce a lien, under the Pub. Stat., ch. 191, § 2, for the labor alone, limited by the contract price, although a partial payment has been made under the contract. Casey v. Weaver, 141 Mass. 280. In an action to enforce a mechanics' lien, a complaint against husband and wife, which sets out a note given by the former, and a sufficient notice of intention to hold a lien upon the house and lots as his property, and avers that he holds the property by an unrecorded title-bond, fraudulently taken in the name of his wife, but paid for by him, and occupied by both; and that she stood by and encouraged the building of the house, etc., is not bad on demurrer. Peck v. Hensley, 21 Ind. 344. In New York, a complaint to foreclose under the law of 1851 is defective unless it state that materials were furnished and labor performed at or before the time of filing the notice of lien. Jaques v. Morris, 2 E. D. Smith (N. Y.) 639; Bradish v. James, 83 Mo. 313; Sumerman v. Knowles, 33 N. J. L. 202. necessary that the complaint allege that they were furnished for the building sought to be charged with the lien.' And where the claim is for alterations the complaint should aver that the work was done in the erection of the new part, and not of the whole house.2 7. Averments as to the Amount Due.-A complaint to enforce a mechanics' lien for labor and materials furnished to the contractor must show the amount due.3 An averment that a notice of lien to a certain amount was filed is not equivalent to an averment that that or any other amount was due.4 1. Crawfordsville v. Barr, 45 Ind. 258; Stephenson v. Ballard, 50 Ind. 176; Bottomly v. Grace Church, 2 Cal. 90; Hills v. Elliott, 16 S. & R. (Pa.) 56; Hill v. Bishop, 25 Ill. 349; Weaver v. Sells, 10 Kan. 458; Hill v. Braden, 54 Ind. 72; Talbott v. Goddard, 55 Ind. 496; Crawfordsville v. Brundage, 57 Ind. 262; Crawfordsville v. Lockhart, 58 Ind. 477; Hill v. Ryan, 54 Ind. 118; Crawford v. Crockett, 55 Ind. 220; North v. La Flesh, 73 Wis. 520. Com pare Morris Canal Co. v. Rockaway Mfg. Co., 14 N. J. Eq. 189; Hill v. Bishop, 25 Ill. 349. To enable a material-man to enforce a lien upon a building for materials furnished, it must be alleged and proved not only that the materials have been used in the construction of the building, but they must have been, by the express terms of the contract, furnished for the particular building on which the lien is claimed. Houghton v. Blake, 5 Cal. 240; Bottomly v. Rector of Grace Church, 2 Cal. 90; Holmes v. Richet, 56 Cal. 307, 308. The petition must show, not only that the materials were furnished to be used in the structure, but that they were actually used therein, or in the construction or erection thereof. Patent Brick Co. v. Moore, 75 Cal. 205. 2. Harman v. Cummings, 43 Pa. St. 322. 3. Noll v. Swineford, 6 Pa. St. 187; Epley v. Scherer, 5 Colo. 536. See Roanoke Land etc. Co. v. Karn, So Va. 589; Harmon v. Ashmead, 60 Cal. 439; Schneider v. Hobein, 41 How. (N. Y.) Pr. 232; Crawfordsville v. Irwin, 46 Ind. 439; Preusser v. Florence, 4 Abb. (N. Y.) N. Cas. 136; Blythe v. Pooutney, 31 Cal. 234; Wooster v. Archer, 49 Ga. 388; Wilkie v. Bray, 71 N. Car. 205; Savannah etc. R. Co. v. Callahan, 49 Ga. 506; Merritt v. Pearson, 58 Ind. 385; Princeton v. Gebhart, 61 Ind. 187; Meigs v. Bruntsch, 54 Cal. 601, 602; Doughty v. Devlin, 1 E. D. Smith (N. Y.) 625. It is not necessary that the certificate of a mechanics' lien on a building for labor and materials furnished in its erection, should state the full amount of such labor and materials. If payments have been made, it is sufficient if it states the balance due. Nichols v. Culver, 51 Conn. 177. A complaint in proceedings to enforce a laborer's lien for work done for a contractor, need not allege that the work was done in accordance with the contract between the owner and the contractor. It is sufficient to allege that the work was done for the contractor upon the building, and that the owner, at the date of the notice, owed him a certain sum. Gilman v. Gard, 29 Ind. 291. In proceedings by a subcontractor, it is not necessary for the claimant to aver in his complaint that money was due to the contractor from the defendant (the owner), at the time of the filing of the notice of the plaintiff's claim. Doughty v. Devlin, 1 E. D. Smith (N. Y.) 625. It is not a sufficient objection to defeat such a petition that too large a sum is demanded thereby, and that it fails to describe the property intended to be covered by the lien. Busfield v. Wheeler, 14 Allen (Mass.) 139. 4. Crawfordsville v. Irwin, 46 Ind. 438. See Bourgette v. Hubinger, 30 Ind. 296; Epley v. Scherer, 5 Colo. 536. Where it does not appear in the petition that anything is due or to become due from the owner of the building to the contractor the petition will be dismissed. Jensen v. Brown, 2 Colo. 694. In claiming a lien, under the act of August 12th, 1858, § 1, Comp. St. 696, if the labor has been performed upon both the building and the appurtenances, it is unnecessary to specify the separate |