Opinion
Appeal from the District Court, First Judicial District, County of San Luis Obispo.
Defendant Quintana in May, 1875, contracted with the defendant, the California Bridge and Building Company, to construct for him a building for the sum of $ 19,780. The Bridge and Building Company bought from the plaintiff material of the value of $ 690.84, which it used in the construction of the building. This was an action to recover the value of the same, and to enforce a lien on the building for the amount. The owner, Quintana, alone answered.
On the trial the defendant Quintana offered to prove that he had paid the contractor, the Bridge Company, the full amount of the contract price, less $ 2,000, and that the building was not finished according to the contract, and that he had sustained damage in the sum of $ 3,518 by reason of the failure to do the work according to the contract.
The plaintiff objected to so much of the evidence as tended to show damage for failure to comply with the contract, because the same had not been pleaded, and the Court sustained the objection. The Court rendered judgment for the plaintiff, and enforced a lien against the property. The defendant Quintanaappealed.
COUNSEL:
The offered evidence should have been received. It tended to show that nothing was due to the contractor, the Bridge Company. (Pomroy's Rem. Rights, sec. 700; Frisch v. Caler , 21 Cal. 71; Fairchild v. Amsbaugh , 22 Cal. 575.)
William J. Graves, for the Appellant.
Harrison & McMurtry, for the Respondent.
A breach of contract and damages under it must be specially pleaded. (Blethen v. Blake , 44 Cal. 117; Piercy v. Sabin , 10 Cal. 22; Philips on Mechanics' Liens, sec. 424.)
OPINION By the Court:
The answer of the defendant was a general denial--nothing more. It was not competent for him to prove, under an answer of that character, " that the buildings were not finished by the contractor according to the contract," etc. (Blethen v. Blake , 44 Cal. 117.)
Judgment affirmed. Remittitur forthwith.