BANKS v. MOSHIER

In an action to foreclose a building lien filed by a subcontractor, one defense alleged that A, the contractor, had agreed to erect the building for $3,700, that he failed to proceed with the work, and that thereupon, pursuant to the contract, the defendant finished the house, at a total expense of more than $3,800; and that all payments to A were made in good faith and before the defendant had notice of the plaintiff's intention to claim a lien. This defense also alleged that the defendant was not indebted to A at any time subsequent to such notice, either on account of the contract, or for "any labor or materials furnished in the construction of the building described in the complaint." The plaintiff replied that as to these allegations he had no knowledge or information sufficient to form a belief. Held that evidence upon the part of the plaintiff was admissible in rebuttal to prove that by reason of deviations from the original plans and specifications A had become entitled to receive for extra work and material a sum equal to the amount claimed under the lien, over and above the specified contract price. An averment to the effect that the pleader has no knowledge or information sufficient to form a belief, in respect to certain averments of his adversary, places the latter in the same position in regard to the burden of proof that he would have occupied had a general denial been pleaded.

HALL, J.

The only question presented by this appeal is whether, under the reply to the second defense, evidence was admissible in rebuttal to prove that by reason of changes from the original plans and specifications, the original contractor, Campbell, was entitled to receive, for all the labor and materials furnished in the construction of the building in question, a sum equal to the amount of the claimed lien over and above the price of $3,700 named in the written contract.

By § 3021 of the General Statutes, amended by Chap. 121 (p. 1052) of the Public Acts of 1899, the plaintiffs were not entitled to a lien to a greater amount than the excess of the price which the defendants had agreed to pay to Campbell for the building and its appurtenances, over the sum of the payments which they had made to him in good faith before receiving notice of the plaintiffs' lien.

It was intended by the second defense to allege facts which would show that the price agreed upon for the construction of this building and its appurtenances had been fully paid before notice of the claimed lien, and that therefore the plaintiffs were not entitled to a lien under the statute. The evident meaning of the first paragraph of the second defense is that Campbell contracted, in writing, with the defendants, to furnish all materials and do all work in the construction of the building upon which the plaintiffs claim a lien, for $3,700. After further alleging that the sum necessarily expended in completing the building after Campbell had abandoned the work and the amount paid to Campbell before receiving notice of the lien, exceeded the contract price, the defendants say, by the sixth paragraph of this defense, that they were not at the time the notice was given, and have not since been, indebted to Campbell for any work done under the written contract, nor for "any labor performed or materials furnished in the construction of said building described in the plaintiffs' complaint."

It was clearly the contention of the defendants that they had paid to Campbell the agreed price for all work and materials furnished by him for this building as it was finally constructed. Undoubtedly they claimed to have done so by payment of the $3,700. In fact the defendants testified that notwithstanding changes were made from the original plans, Campbell agreed to construct the building as it was finally completed, for $3,700.

Under the allegations of the second defense it was upon to the defendants to prove, either that all the work done and materials furnished were covered by the agreed price of $3,700 which it was claimed had been paid, or that if, by reason of changes in the plans, other work and materials not covered by the original contract price had been furnished, such work had also been paid for.

The defendants failed to establish either of these propositions. It was not agreed by the written contract that the work and materials for this building as finally completed should be furnished by Campbell for $3,700. The contract provides for an addition to or deduction from that sum, for work and materials furnished by reason of changes directed by the owner from the original plans and specifications.

It appears that changes were made from the original plans which entitled the original contractor to a sum in addition to the $3,700, and that the full amount due him has not been paid. The trial court finds that for all the work done and materials furnished, Campbell was entitled to receive $1,259.29 in addition to the $3,700, and that for work done in accordance with the original plans, and for extra work done by agreement with the defendants, including the expense of completing the unfinished work, the defendants have paid only the sum of $3,586.92.

The facts thus found entitle the plaintiffs to a lien under the statute, but they are not facts which the plaintiffs were bound to establish. They were only required to prove the allegations of the complaint. The price which the defendants had agreed to pay Campbell for the construction of this building and the sum which had been paid in good faith at the time notice of the lien was given, were facts peculiarly within the knowledge of the defendants, and as to these facts the plaintiffs had only to meet the proof offered by the defendants in support of the allegations of the special defense.

The evidence offered by the plaintiffs in rebuttal was for the purpose of proving facts which were inconsistent with the averments of the second defense. It was therefore proper rebutting testimony, and was admissible under the reply which subjected the defendants to the same burden of proving, and gave to the plaintiffs the same right of controverting, the allegations of the answer, as a denial would have done. Sayles v. Fitz Gerald, 72 Conn. 391.