in which the special contract between the contractor and owner of the building is stated, can be changed by amendment into an action on the contract, which may be counted on specially, or the common counts in assumpsit may be used, in accordance with the general rules applicable to such courts. 209 § 2358d. Complaint - foreclosure of seed lien. Under the statute of North Dakota (Comp. Laws, § 5490) authorizing a seed lien, the "account in writing" must embrace a description of the land on which the seed has been or is to be planted. And where, in an action to foreclose such lien, the complaint shows affirmatively that the land is not described in the account in writing which was filed, such complaint fails to state a cause of action so far as the lien is concerned.21 - § 2358e. The same - foreclosure of logger's lien. In an action to enforce a logger's lien, under the California statute (act of March 30, 1878, as amended by act of April 12, 1880, the complaint must allege that something was due from the defendant to the original contractor when the lien of the plaintiff was filed, or that the defendant was notified or had knowledge of the claim of the plaintiff prior to the payment in full of the amount due to the original contractor under the contract.211 § 2359. Parties intervening. Persons having a lien by mortgage upon the property have no right to intervene.212 An intervention within six months is as much a compliance with the act as the original suit.213 But where the suit has been pending for some time, and the application to intervene was made just as plaintiff was taking judgment, it is properly refused.214 § 2360. Parties plaintiff. Materialmen and mechanics entitled to a lien on a building, but whose claims are several, without any community of interest in the claims themselves, 209 Castagwino v. Balletta, 82 Cal. 250. 210 Lavin v. Bradley, 1 N. Dak. 291. 211 Wilson v. Barnard, 67 Cal. 422. Foreclosure of farm-laborers' liens. See Pain v. Isaacs, 10 Wash. St. 173. 212 Van Winkle v. Stow, 23 Cal. 457. 213 Mars v. McKay, 14 Cal. 127.. 214 Hocker v. Kelley, 14 Cal. 164. may join as plaintiffs in an equitable action to establish and enforce their liens.215 § 2361. Personal actions. Nothing in the provisions of the chapter giving a lien impairs or affects the right of any person to maintain a personal action to recover the debt secured.21 § 2362. Priority of liens. Where different liens are asserted against any property, the court, in the judgment, must declare the rank of each lien, or class of liens, which shall be: 1. All persons other than the original contractors and subcontractors; 2. The subcontractors; 3. The original contractors. The proceeds of sale must be applied in the same order, and a judgment for any deficiency may be docketed as in case of the foreclosure of a mortgage.217 A mechanic's lien is preferred to a mortgage made after the commencement of the work.218 The lien accrues at the commencement of the work or the beginning to furnish the materials.219 The lien of a judgment, rendered after labor is commenced or material is first delivered, is postponed to the lien of the materialman or laborer, although the labor is completed and the last of the material delivered after the judgment is docketed.220 § 2363. Right of lien. Unless some one or some portion of the several payments to be made to the contractor during the progress of the building were made to the original contractor by the employer before they became due by the terms of the original contract, or after notice had been duly served upon the employer by the holder of a claim against the contractor, the claimant has no right of lien upon the premises, and no legal personal claim against the employer.221 If the owner of a building which is being erected makes payments to the con 215 Barber v. Reynolds, 33 Cal. 497; see, also, Cal. Code C. P., § 1195; see § 143, ante. The assignee of a laborer's claim can recover only by alleging and proving a specific sum due his assignor by reason of labor performed under a contract, and that by virtue of the assignment he succeeded to it. Hanna v. Savings Bank, 3 Col. App. 28. 216 Cal. Code C. P., § 1197. 217 Id., § 1194. 218 Crowell v. Gilmore, 13 Cal. 56; Soule v. Dawes, 7 id. 576. 219 McCrea v. Craig, 23 Cal. 525. 220 Barber v. Reynolds, 44 Cal. 520; Code C. P., § 1186. 221 Henley v. Wadsworth, 38 Cal. 360; see § 2362, ante. tractor in good faith, before receiving notice that a materialman claims a lien for material furnished the contractor, such materialman can not enforce his lien except for the balance, if any, due the contractor on the contract.2 222 The amendments to the Code of Civil Procedure concerning liens of mechanics and materialmen, adopted in 1874, have not changed the above rule.223 § 2364. Relative rights of parties. Upon a compliance on their part with the terms of a statute, the right of a subcontractor, laborer, or materialman to the lien, which through the original contractor inures primarily to the benefit of persons in that relation, must be determined and controlled by the terms of the original contract between the owner and original contractor.224 § 2365. Statement of demand. It has been held unnecessary to set out the items of the account.225 A statement will not be rejected because it was filed for too much, unless it appears that it was a willfully false claim.226 The statute must be strictly pursued; 227 but a mere mistake in a word will not vitiate a claim.2 228 § 2366. Verification. If the claimant sign the verification, he need not sign the claim.229 § 2367. Subsequent statute governs. Where the contract was made and the materials furnished while the California Lien Law of 1858 was in force, but notice of lien was not filed until after the Lien Law of 1862 went into effect, the lien must be enforced according to the provisions of the latter act.230 222 Wells v. Cahn, 51 Cal. 423. 223 Id.; and see § 2355, ante. 224 Henley v. Wadsworth, 38 Cal. 356; citing Shaver v. Stilwell, 36 id. 293; and see § 2355, ante; Davis v. Lumber Co., 2 Col. App. 381; Ditto v. Jackson, 3 id. 281. The doctrine of the text is also maintained in Schroeder v. Galland, 134 Penn. St. 277; 19 Am. St. Rep. 691. 225 Brennan v. Swasey, 16 Cal. 140; Selden v. Meeks, 17 id. 131. 226 Barber v. Reynolds, 44 Cal. 520. 227 Wood v. Wrede, 46 Cal. 638; compare Corbett v. Chambers, 109 id. 178. 228 McDonald v. Backus, 45 Cal. 262. 229 Hicks v. Murray, 43 Cal. 521; see Corbett v. Chambers, 109 id. 178. 230 McCrea v. Craig, 23 Cal. 522. § 2368. By subcontractor, against owner and contractor, for labor and materials. [TITLE.] Form No. 563. ...... The said plaintiff complains of the defendants, and alleges: I. That the defendant A. B. is the owner and reputed owner of the following described land and premises situated in county, state of California, to-wit [describe the land], and was such owner and reputed owner at all the times hereinafter mentioned. day of II. That on the ... 18.., the defendant C. D. entered into a contract with said A. B., whereby he agreed to provide all the materials and labor and erect for said A. B. a certain building, to-wit, a dwelling-house, upon the land above described, and for which said A. B. agreed to pay said C. D. the sum of dollars, at the times and in the manner following, to-wit [state amount of payments, and when to be made]. .. day of day of III. That said C. D. commenced the work of erecting said dwelling-house on said land pursuant to said contract, on the 18.., and fully completed the same under and according to the terms of his said contract, on the ... 18.., and otherwise performed and fulfilled all the terms and conditions of said contract so far as they were to be performed by him; and plaintiff avers that there remains unpaid from the defendant A. B. to the defendant C. D., upon and for the erection of said building under said contract, the sum of dollars, which said sum became due and payable on the day of day of 18.., the IV. That on the plaintiff entered into a contract with the defendant C. D., in and by which the plaintiff agreed to furnish the necessary and proper materials for painting said dwelling-house and to paint the same, and the defendant agreed to pay him the sum of .. dollars therefor upon the completion of the painting thereof; and the plaintiff avers that on the day of 18.., he furnished said materials, and painted said dwelling-house under and in pursuance of said contract, and completed the same on the day of 18.., and has in all respects fully kept and per Vol. II-17 formed his said agreement; yet the said defendant C. D. has not, nor has any one for him, paid to the plaintiff the said sum of dollars, nor any part thereof. V. Plaintiff avers that the whole of the land above described is required for the convenient use and occupation of said dwelling-house. VI. That [follow paragraph V. of form No. 562]. VII. [Same as paragraph VI. of No. 562]. VIII. [Same as paragraph VII. of No. 562]. 1. That the court may find and ascertain the amount due from the defendant. C. D. to this plaintiff under said contract, and that he have judgment against the said C. D. therefor. 2. That the court may find and ascertain what sum, if any, was due from the defendant A. B. to the defendant C. D. at the date of the filing of plaintiff's lien. 3. That it may be decreed by the court that the plaintiff has a lien upon said dwelling-house and the lands described herein. for the sum so found due to him from the said C. D. and the costs of this action, including dollars paid for dollars as verifying and recording said lien, and an attorney's fee herein, that said land and dwelling-house may be sold under the order and decree of this court, and the proceeds applied to the payment of the costs aforesaid and the sum so found due to the plaintiff; that he have execution against the said C. D. for any deficiency, and for other and further proper relief. the plaintiff sold and conveyed to the defendant acres of land, situated in [describe the premises ... dollars, for which specifically], for the sum of the defendant agreed to pay the plaintiff the sum of dollars [state terms of sale]. II. That the defendant is indebted to the plaintiff in the premises dollars, no part of which has been paid. III. That the plaintiff has a lien as vendor upon said prem |
