JOHN M. BOSCUS et al., Respondents, v. JOHN H. BOHLIG et al., Appellants, 173 Cal. 687

MELVIN, J. Defendants appeal from a judgment entered on the pleadings in an action to foreclose a mechanic’s lien. The complaint was verified.

The allegations thereof were in brief, that John H. and Lotta Bohlig were at all times specified the owners of certain described real property; that the former was at all times the reputed owner; that plaintiffs had entered into a written contract to furnish certain plumbing and gas-fitting work in a building on said land for the sum of two thousand five hundred dollars, to be paid in stipulated installments; that the work had been fully performed by the plaintiffs according to the contract; that no part of the contract price (which was alleged to be the reasonable value of the work) had been paid; and that a claim of lien against the property in due form had been filed within the time limited by statute at a cost of $1.90 for verification and recording.

The prayer was the usual one in such cases. The answer denied on information and belief, the existence of the copartnership of plaintiffs; the due performance of the contract; the alleged reasonable value of the work provided for; and the filing of the lien. By one of the paragraphs of the answer defendants assert that John H. Bohlig at all times mentioned in the complaint was the owner of a described portion of the property in question, and that he and his wife, Lotta Bohlig, owned the remaining part of it.

There was no denial of the execution of the contract, the completion of all that was thereby required, nor the acceptance on or about January 21, 1914, by both defendants of the work and building. It is to be noted that on information and belief defendants denied that “$2,500 or any other sum” was the reasonable value of the work, and that plaintiffs had “duly kept and performed all the terms and conditions of their said agreement. ’ ’ Respondents at the outset assert that the proceedings in the superior court may not be reviewed in the absence of a bill of exceptions (citing Hawley v.

Kocher, 123 Cal. 77, [55 Pac. 696], and that the granting or denial of a motion for judgment on the pleadings is no part of the judgment-roll (citing McAbee v. Randall, 41 Cal. 136; Douglas v. Dakin, 46 Cal. 49-52, and Hemme v. Hays, 55 Cal. 337). They prefer, however, to discuss the matter upon its merits, and regarding their preference as a waiver of the suggested point we will consider the pleadings in the light of the motion for judgment thereon which, according to the decree, was made and granted.

Appellant’s first contention is that as the motion for judgment on the pleadings admits, in the same sense as does a demurrer, the truth of the allegations of the answer, and as that pleading denies the amount claimed or any amount is or was the reasonable value of the work performed and the materials furnished, the court should have overruled the motion and should have compelled the plaintiffs to prove such reasonable value.

It is true that the motion, like a demurrer, admits the truth of the facts pleaded in the answer, but by their answer defendants by failing to deny, admit the facts pleaded in the verified complaint, namely, that two thousand five hundred dollars was the agreed contract price, that the work was completed by plaintiffs, and that it was accepted by the defendants. As against these solemn admissions their denial on information and belief that the work was of any value is so paltry as to amount to nothing at all.

It requires no citation of authority to support the court in summarily disposing of such pleading, but authority is not wanting. In Loveland, v. Garner, 74 Cal. 298-300, [15 Pac. 844], the court characterized denial upon information and belief of certain matters which must have been within the knowledge of defendants as an indulgence “in a playful frivolity not consistent with the solemnity of sworn pleadings in a court of justice.” In Gribble v.

Columbus Brewing Co., 100 Cal. 67, [34 Pac. 527], a defendant in possession of a brewery had denied on information and belief that certain appliances were attached to the realty and had become fixtures. It was held that the denial was insufficient. In Mulcahy v. Buckley, 100 Cal. 484, [35 Pac. 144], the defendant made the same sort of a denial of an averment that a claim of lien had been filed, and it was held that positive denial is necessary where the pleader has knowledge, or means of acquiring knowledge, which might enable him to traverse or to admit the unequivocal averments in the complaint.

A defendant must admit or deny facts alleged by the plaintiff or must show how it happens that he is destitute of knowledge concerning such facts. (Brown v. Scott, 25 Cal. 189-196.) Other authorities sanctioning the entry of a judgment on the pleadings when the answer is sham and frivolous are Hemme v. Hays, 55 Cal. 337; Felch v. Beaudry, 40 Cal. 439; Montgomery v. Merrill, 62 Cal. 385-393; San Francisco v. Staude, 92 Cal. 560, [28 Pac. 778]; Benham v. Connor, 113 Cal. 168, [45 Pac. 258]. But appellants insist that since

section 1183 of the' Code of Civil Procedure provides that a mechanic’s or materialman’s lien shall not in any ease exceed the reasonable value of the work done and materials furnished, the question of reasonable value is always one to be determined by the court. The language of

section 1183 upon which appellants rely does not apply to one contracting directly with the owner, but has reference to subcontractors. The contracting parties are bound by the terms of their agreement where, as in this case,the persons for whom the work was performed and the materials were furnished admitted the execution of the contract, the completion of the work, and its acceptance by them. The attempted denial that plaintiffs had duly kept and performed dll the terms and conditions of their agreement was utterly insufficient.

It amounted to an admission that substantially all of the terms and conditions of the contract had been duly met and executed. (Jones & Lauglin Steel Co. v. Abner Doble Co., 162 Cal. 497-500, [123 Pac. 290].) As was pointed out in the opinion in that case the omission of a single rivet or bolt would satisfy the denial. Appellants say that since the land belongs in part to Lotta Bohlig, as shown by their verified answer, and no claim is made that she authorized or knew of the performance of the work, the judgment in its application to her is erroneous. There is no merit in this contention.

No personal judgment against her was asked or given, but her undivided interest in the easterly nineteen feet of the lot upon which the building was placed was properly subjected to the lien. If she had knowledge of the" construction of the building she was responsible. (Code Civ. Proc., see. 1192.) She must have had such knowledge for she accepted the completed work. Constructive knowledge is as potent as actual cognizance of the performance of the work. (Harmon Lumber Co. v. Brown, 165 Cal. 193-197, [131 Pac. 368]; Gentle v.

Britton, 158 Cal. 328-332, [111 Pac. 9].) The circumstances admittedly true under the pleadings show both actual and constructive notice to Mrs. Bohlig of the building of the house. There was no pleading of any notice of disclaimer filed pursuant to

section 1192, and as the filing of such notice is matter of defense (West Coast Lumber Co. v. Newkirk, 80 Cal. 275-277, [22 Pac. 231]), the fact that she accepted the finished work is conclusive upon the question of her knowledge. Appellants contend and respondents concede that an error in the allowance of interest was made by the court in entering judgment. Interest on the full sum of two thousand five hundred dollars was- allowed from the date of the completion of the work, but half of this amount was not payable until thirty days later.

By failing to recognize this fact the court allowed excessive interest in the sum of $8.50.

This error may be corrected by inserting in the judgment in lieu of the words, “with legal interest thereon from January 21, 1914, to the date hereof, making in all the sum of $2,581.16,” the following: “With legal interest, as to $1,250 thereof, from January 21, 1914, to February 26, 1914, and as to the whole thereof from February 26, 1914, to the date hereof, making in all the sum of $2,572.66. ’ ’ It was proper that by the judgment interest due prior thereto should be added to the principal and that the aggregate amount should thereafter draw interest. (Corcoran v.

Doll, 32 Cal. 82-88; 22 Cyc. 1568.) With the modification above suggested the judgment is affirmed with costs to respondents. Henshaw, J., and Lorigan, J., concurred.