Gavin v. Landfair Realty Corp.

WASTE, C. J.

Plaintiff Gavin, who has appealed from a portion of the judgment entered herein, moves this court for orders allowing diminution of the record, permitting withdrawal of certain notes and trust deeds, and requiring the defendant Landfair Realty Corporation, which has also appealed from a portion of the judgment, to post an appeal bond and in the absence thereof for a dismissal of the appeal.

In our consideration and determination of these several motions we shall generally state only so much of the facts underlying this litigation as are essential to an understanding thereof. It appears that the defendant Landfair Realty Corporation let a contract to the cross-defendant John L. Hudson, as contractor, for the erection of a building to cost $42,000. A faithful performance bond and a bond to laborers and materialmen were respectively executed by Hudson, as principal, and by Hudson’s father and plaintiff Gavin, as sureties, each bond being in the sum of $21,000. In addition, the plaintiff Gavin agreed to loan $35,000 for the construction of the building. Hudson, the contractor, was to provide the balance necessary to complete the building. Certain notes secured by deeds of trust were to be executed to insure repayment of the sums so advanced. These instruments were placed in escrow with instructions for their delivery to Gavin 35 days after filing of notice of completion, providing no liens were on file. Gavin advanced and paid into the escrow from time to time sums aggregating $23,750 and, in addition, paid out $19,-869.72, in an effort possibly to avoid liability under the faithful performance bond. After these sums had been paid, Gavin and Hudson, the contractor, claimed that the building was complete in accordance with the plans and specifications. This the owner and architect denied and a certificate of completion was refused. Thereupon Gavin commenced this action for declaratory relief and for delivery of the notes and trust deeds above mentioned. The Landfair Realty Corpora

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tion cross-complained. The escrow holder delivered the notes and trust deeds to the clerk of the court and they are now held

in custodia legis.

At the conclusion of the trial the court below found that it would require an additional seventy days and $7,003 to complete the building according to specifications and that the Landfair Realty Corporation, as owner, had been damaged in the sum of $3,774 by delay in construction and consequent loss of rentals. By the terms of the judgment thereafter entered the Landfair Realty Corporation recovered, on its cross-complaint, against Gavin and Hudson, the sum of $10,777 and costs. The clerk was directed to retain the promissory notes and deeds of trust until seventy days after signing of the judgment in order to permit completion of the building, and then to deliver same to Gavin in the event he did not prosecute an appeal from the judgment and further that if any party to the action, except Landfair Realty Corporation, should prosecute an appeal the clerk was to retain custody of the documents until further order of the court. In other words, if no appeal was taken, or if Landfair Realty Corporation alone appealed, the documents were to be delivered to Gavin at a time when it would be too late for him to notice an appeal. Gavin was also ordered to pay Landfair Realty Corporation the sum of $200 to satisfy the architect’s claim of lien. It was also decreed that the escrow holder pay Gavin $100 theretofore paid on account of one of the notes. The notes and trust deeds were decreed to be valid and the latter to be subsisting liens on the property. As stated above, both Gavin and the Landfair Realty Corporation appealed from portions of the judgment.