The only assignment of error insisted on, is the action of the court below in overruling the plaintiff’s demurrer to the defendant’s pleas, numbered 2, 3 and 4. The ground of demurrer to each one of said pleas is: “It [the plea] fails to show that there was not an unpaid balance due the contractor, II. C. Smith, by the owner of the property on which the lien is sought, to-wit, Mrs. Jacques Loeb, when notice was given her of plaintiff’s claim of the lien as set forth in the complaint as amended.” A. material-man, under the provisions of section 2723 of the Code of 1890, is given a lien on such unpaid balance as may be due, or that may become due under an existing contract by the owner or proprietor to the contractor at the time of the service of notice of the proposed lien; and in an action to enforce such lien it is essential for the plaintiff to allege'in his complaint that an unpaid balance was due from the owner to the contractor at -the time of the service of notice. This the complaint in this cause did allege. And the defendant’s plea number 1 — the general issue — put in issue this allegation. Pleas 3 and 4 fully deny the allegations in the complaint of the existence of any balance due from the owner to the contractor at the time of the service of notice. It is difficult to see how this allegation of the complaint could he any more fully denied. The facts alleged in the second plea show that at the time notice was served on the owner or proprietor, Mrs. Loeb, of the lien claimed by the plaintiff, the contractor Smith had abandoned the work on the buildings, and under the provisions in the contract, Mrs. Loeb took possession of the *183buildings and completed them, at an expense in excess of tlie amount agreed to be paid to Smith, the contractor. This plea further in terms, denies that the defendant .owed the contractor, Smith, anything under said contract at the time of the service of notice of plaintiff’s claim.
We think it plain, that the objection to the pleas raised by the demurrer is groundless. Neither of the pleas demurred to can be said to be defective in the respect alleged in the demurrer. The court committed no error in overruling the demurrer, and the judgment appealed from must, therefore, be affirmed.
Affirmed.