The opinion
WASTE, C. J., Dissenting.
I dissent.
The majority opinion proceeds upon the theory that the complaint under consideration is for the foreclosure of a mechanic’s lien where the contractor was to be paid in money and land. Based upon this major premise the majority opinion holds that “the fact that the contract provides for payment to the contractor of part of the contract price in land does not affect the contract”. That is undoubtedly the law, the difficulty .being that, in my opinion, that principle has no application to the facts of this case. As I read the complaint the cause of action sounds in tort and not in contract. The damages asked are not for failure to pay the contract price but for the alleged fraud and misrepresentation of the owner. There can be no doubt that if the owner contracted to pay $10,440 in cash, and the balance of $3,065 in land, and if such total sum was the reasonable value of the services, the contractor could foreclose his lien for the amount of the represented value of the land if the owner refused to convey such land, or if such land was not worth the represented value. But that is not the theory upon which the complaint proceeds. Nowhere in the complaint is it alleged that the cash and land payments constituted the reasonable value of the labor and materials furnished by the complainant as expressly required by section 1183 of the Code of Civil Procedure. Reading the entire complaint it is obvious that the sums sought to be recovered are not sought as part of the contract price remaining unpaid, but are sought as and for damages caused by the alleged fraud of respondent. For example, allegation number 14 of the third amended complaint reads as follows:
“That plaintiff has been
damaged by said misrepresentations
of defendant as herein set forth in the sum of $3,000.00 ...” Allegation number 15 is to the effect “that the conduct of defendant in relation to said contract
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has been oppressive and fraudulent as herein set forth and this plaintiff has been compelled to employ counsel to enforce his rights; that it is meet and proper that plaintiff be allowed counsel fees in the sum of $500.00 as
exemplary damages and that said sum be made a lien upon the said lot and the building constructed thereon by this plaintiff”.
These allegations fairly represent the theory upon which the complaint proceeds. To hold that the mechanic’s lien may be extended so as to permit recovery of damages for a tort is to extend the provisions of that statute far beyond the original intent of the act. It is my opinion that it was never intended that the mechanic’s lien should be used for this purpose.
Appellant has filed three amended complaints. In none of the four complaints has appellant embodied the allegations necessary in an action to foreclose a mechanic’s lien. It seems obvious that if appellant could have stated such a cause of action truthfully he would have done so. Although this court has been extremely liberal in construing pleadings it is my opinion that to hold that the present pleading states a cause of action to foreclose a mechanic’s lien is to not only violate fundamental rules of pleading but is to warp the mechanic’s lien beyond its scope and intent.
Shenk, J., concurred.
Rehearing denied.
¡Waste, C. J., and Shenk, J., dissented.