Burke

This is an action to foreclose a mechanic’s-, lien. A special demurrer to the complaint was overruled, after which the defendant answered. Thereafter a jury trial was demanded, and the court, at the request of the defendant, submitted to the jury one issue—“Was the building contract as modified, between plaintiff’s assignors and the defendant F. M. Dittus, substantially performed on the part of plaintiff’s assignors prior, to the 31st day of August, 1905?”' The jury brought in a verdict in favor of plaintiff, and the-court thereafter adopted this verdict, and, upon the hearing-of further testimony, rendered its judgment in favor of the-plaintiff and against the defendant, F. M. Dittus. From this, judgment and from an order denying the motion for a new trial this appeal is prosecuted.

The appellant contends that the complaint is fatally defective for a number of reasons, the first of which is that the complaint, being for money due upon contract, does not aver nonpayment, the allegation in that behalf being that “the whole amount due ... is the sum of twenty-four hundred and forty dollars.” Appellant’s position is that this allega tion is not equivalent to an averment of…