Tucker v. Schumacher

WARD, J.

This is an action by a contractor for the foreclosure of a mechanic’s lien. Plaintiff contracted to erect a market building on land owned by defendant. All of the defendants named as having some right, title or interest in the premises appeal from the judgment in favor of plaintiff.

The complaint alleges a verbal contract to erect the building ; that all materials were furnished and the labor performed between January and December, 1946, at the request of Harry C. Schumacher; that the reasonable value of the materials and labor agreed to be paid is $39,858.85; that $30,000 of this amount has been paid, and that $9,858.85 remains unpaid.

In a cross-complaint defendants allege that a written contract by plaintiff and Henry C. and Charles H. Schumacher was executed in the amount of $25,300, to be paid in four installments. This written contract dated November 9, 1945, provided that plaintiff should furnish all materials and labor to construct the building according to certain plans.

The cross-complaint also alleged that the written contract provided that plaintiff should purchase and install a neon sign. The neon sign was installed but it is alleged that the contractor plaintiff and cross-defendant refused to pay for

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its purchase and that this necessitated the cross-complainants procuring a loan, to their damage in the sum of $2,500.

Plaintiff’s answer to the cross-complaint alleges that the written contract was terminated and rescinded prior to the commencement of the work specified in the complaint and that the plans referred to in the cross-complaint are of a different nature and kind than those referred to in the complaint. In brief, the main question presented is whether there was an abandonment of the written contract and a subsequent “verbal” agreement to erect the building on a cost plus basis.

The first three points presented by defendants are in substance : (1) There is no competent legal evidence to sustain the plaintiff’s complaint of abandonment of the original written contract and performance of the work on a cost plus agreement; (2) Plaintiff’s own oral testimony and documentary evidence does not sustain plaintiff’s complaint for the amount of money prayed for, nor is the judgment sustained by the evidence; (3) The evidence does not support the findings of fact and conclusions of law, and the judgment entered accordingly. Two other points are presented: One of them will be disposed of in the final paragraph of this opinion; the other is the claim that there was error of the trial court in denying defendants’ motion for a new trial. The latter contention, in addition to a discussion of the duty of the trial court to have ruled on the motion in favor of defendants, is merely a résumé of the first three points. The real question involved is the sufficiency of the evidence.