
    Crooks v. Finney.
    Where a promissory note is given and received in payment of a mechanic’s claim for materials furnished and work done in erecting a house under a contract with the owner, the lien of the mechanic is waived.
    Error to the District Court of Franklin county.
    The Door, Sash and Lumber Co., having furnished materials and done work in putting up a partition and counters on leasehold premises, under a contract with the lessee, made in September, 1878, took the steps prescribed by the statute to secure a mechanic’s lien, November 16,1878, and in December, 1878, filed a petition in the court of common pleas of Franklin county to enforce and foreclose the lien, making Finney, the lessee, and Crooks, the lessor, who claimed to have a lien on the same property, parties defendants. The petition contains the following allegations: “That on the 7th day of November, 1878, said Finney, in payment thereof, gave his promissory note, payable to the order of plaintiff, one day after date, for $334.50, with interest at eight per cent, per annum. That said note was not paid at maturity, and on the 18th day of November, 1878, plaintiff obtained a judgment, by confession, on said note, in this court, for said $334.50 and interest from said November 7th, 1878.”
    The demurrer of Crooks was sustained and the petition was dismissed, which judgment was reversed in the district court, and the cause remanded for a new trial. On such new trial judgment was rendered in favor of the company for the amount of the lien, and error is prosecuted in this court by Crooks.
    
      R. B. Smith, and G. K. Nash, for plaintiff in error:
    The lien was discharged by taking the note. McCoy v. Quick, 30 Wis. 521; Phillips on Mec. Liens, § 275. .
    
      R. T. Clarke and C. E. Burr, for defendants in error:
    There is no statement that the company received the note in jiayment. The allegation amounts to no more than that the note was given to evidence the time and amount. Hoyt on Mec. Liens, 19; Miller v. Moore, 1 E. D. Smith, 739; Tease v. Christie, 2 E. D. Smith, 621; Althouse v. Warren, Ib.; Hall v. Pettigrove, 10 Hun, 609; Swan’s Tr. (11th ed.) 693 ; Merrick v. Boury, 4 Ohio St. 60.
   By the Court.

The rule of the common law requiring pleadings to be construed most strongly against the pleader, has been abrogated (Rev. Stats. §§ 4948, 5096); but the petition and answer are required to be in ordinary and concise language ” (Rev. Stats. §§ 5060, 5070), and no construction can be permitted which will be, in effect, a perversion of their language. Indeed, in some cases the language must be strictly construed. Rev. Stats. § 4948; Mech. etc. Association v. O'Connor, 29 Ohio St. 651. By this petition, its language being fairly construed, it is admitted that the promissory note was given and received in payment of the company’s claim ; and hence the subsequent steps in endeavoring to perfect and enforce a mechanic’s lien, based on such claim, were wholly ineffectual. Judgment reversed.  