Skipper v. Gilbert J. Martin Construction Co.

MUSSELL, J.

This is an action for foreclosure of a mechanic’s lien and for money alleged to be due under a contract. The demurrer to plaintiff’s second amended complaint was sustained without leave to amend and plaintiff appeals from the judgment of dismissal thereupon entered.

It is alleged in the second amended complaint that the defendants, owners of certain real property in San Bernardino county, were engaged as joint venturers in the construction of 60 houses on said property; that on or about November 30, 1955, plaintiff and defendants entered into the following written agreement:

“This agreement, made this day, November 30, 1955, between Gilbert J. Martin Construction Co. and Eddie Skipper for the purpose of framing 60 houses at Vista Manor to wit:

“That Gilbert J. Martin Construction Co. agrees to furnish payroll, tools and all allied materials and supplies for the purpose of framing said houses.

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“Eddie Skipper agrees to furnish all labor and himself as general foreman for the purpose of framing said houses at the basic price of 38c per square foot per house.

“Payment to be made as follows: All labor to be paid no more than scale as established by the Unions. Said wages to be deducted from the net amount as computed by the square footage weekly. Balance or difference to be paid Mr. Skipper less 12%% which takes care of health and welfare benefits and overhead. All houses to pass YA, PH A, County and City inspection before final payment.

“Gilbert J. Martin Construction Co.

“By /s/ G. C. McDaniel

“Eddie Skipper

“/s/ Eddie Skipper.”

Plaintiff further alleged that he has fully kept and performed said agreement; that pursuant to the terms thereof the sum of $32,909.52 became due and owing for work performed pursuant to said contract; that defendants paid $27,-668.18 on said contract, leaving a balance of $5,241.34 unpaid; that in addition to the framing of said houses, the plaintiff also furnished materials and labor, representing extra work and extra materials in said construction, having a value of $1,842.50, in addition to the contract price, which said sum defendants agreed to pay but which is unpaid. Plaintiff also alleged that his only duty under said agreement was to furnish labor and himself as general foreman for the purpose of framing said houses; that the defendants had and exercised active control of all labor and all employees furnished by plaintiff; that plaintiff, acting in his capacity as general foreman, was required to accept orders and direction from the officers of defendant corporations and they actually exercised exclusive control over the laborers secured by plaintiff in framing said houses and actually hired said laborers; that defendants gave directions to plaintiff and said laborers in the manner in which said work was to be performed and paid all wages to said laborers; that defendants paid all withholding taxes, social security payments, unemployment insurance payments, and workmen’s compensation covering said laborers; that defendants orally requested plaintiff to obtain the extra materials and labor furnished to defendants.