It will be convenient to consider separately the questions arising out of the complaint, and those arising out of the counterclaim.
The ruling of the court sustaining the demurrers to portions of the reply to the second defense, was correct. The second defense set forth the contracts Exhibits A and B; the plaintiff's neglect and refusal to perform; the certificate of the architect that such neglect justified the owner in terminating the contract; and the notice to the plaintiff that the contract was terminated. *Page 723 The reply set forth two additional contracts. One of them was properly excluded by the ruling on the demurrer, because wholly irrelevant in point of subject-matter. The other, Exhibit 10, was not excluded by the ruling, but certain allegations as to its legal effect were properly held demurrable because not borne out by the writing itself. It may also be observed that the second defense alleges nothing which was not already admissible under the denials of the first defense, and for that reason both it and the reply were unnecessary.
Turning now to the report and remonstrance, we deem it unnecessary to pursue the assignments of error in detail, for we are of opinion that the finding of the committee must stand, that before the plaintiff's lien was filed he had assigned all moneys then to become due under Exhibit A to Porto, and the assignment had been perfected by notice to Chieppo. It had also been acted on. Porto had advanced money to the plaintiff, and Chieppo had given Porto a mortgage on the premises to secure his advances. The inchoate right to a mechanic's lien is incidental to the right to exact compensation from the owner of the premises for work done or materials furnished; and by the assignment to Porto the plaintiff effectually divested himself of any inchoate right of lien.
That being so, the only material assignment of error is that which challenges the ruling of the committee admitting the original assignment in evidence. The objection is that it was not pleaded, but if that objection were sound, it could not prevail in the face of the finding that the plaintiff himself, on his direct examination, testified to the fact that he had assigned the contract to Porto and that Chieppo had been notified. After that voluntary admission, the defendants were entitled to the best evidence of the fact, and the original assignment was properly admitted during the cross-examination *Page 724 of the plaintiff. These findings as to the assignment are conclusive. Nevertheless, we have examined the other reasons of appeal so far as pursued on the brief, and find no error.
As to the counterclaim, what has been said of the ruling on the demurrer to the second defense applies to the ruling on the demurrer to the counterclaim, except that the counterclaim and reply were necessary pleadings. The plaintiff's brief is mistaken in saying that paragraph four of the reply was excluded by the ruling.
The grounds of remonstrance to that part of the committee's report which affects the counterclaim are not pursued on the brief, though some of them were referred to on the argument.
The findings that Chieppo "proceeded to complete said contract and building," and that she "in fact expended $6,669.26 more than the contract price of constructing said building in completing the same," are sufficient findings of the fact that the building was completed according to the contract and that the amount found was expended in so completing it. There was no error in refusing to credit the plaintiff with the cost of certain building materials left on the work by the plaintiff and used by the owner in completing the building; indirectly the plaintiff was credited with what it would have cost to replace them with like materials, which the owner must have bought and charged to the plaintiff had she not used them.
There is, we think, one ground of remonstrance that was well taken; namely, that the plaintiff should not be charged for delay in completing the building after his employment had been terminated in accordance with the contract. By electing to terminate the plaintiff's employment the owner discharged him from any further responsibility for the conduct of the work. The sum *Page 725 of $400 was erroneously charged to the plaintiff on this account.
There is error, and the cause is remanded with instruction to deduct the sum of $400 and interest from the amount of the judgment, and to enter judgment for the defendants for the balance.
In this opinion the other judges concurred.