Lucas

This is an appeal from the judgment and an order denying the motion for a new trial in an action for the foreclosure of a “materialman’s” lien.

1. The first point made by appellants is that the complaint is fatally defective inasmuch as “there is no allegation that at the time of filing the notice of lien any sum was due from the owner to the contractor nor any necessary fact giving the materialman a lien against the property of the owner.”

But the plaintiff proceeded upon the theory that thg building contract was void, since, being for more than $1,000, it was not recorded. In such a case the material is deemed to have been furnished at the instance of the owner, and it is sufficient to allege that it was thus furnished through the contractor as the agent of said owner. (Code Civ. Proc., sec. 1183; Yancy v. Morton, 94 Cal. 560 , [ 29 Pac. 1111 ].)

2. A variance is claimed in several particulars. The claim of lien sets forth: “That the name of the owner and reputed owner of said building is Leander D. Gobbi. ’ ’ The complaint alleges that the material was furnished to Leander D. Gobbi, Mary Gobbi and Catherine Gobbi, the owners of the property. In the answer there is no denial…