Martin v. Karsh

THE COURT.

This is an appeal in consolidated actions relating to the sufficiency of the performance of the contractors, Martin and Hastings, doing business as “Bayshore Construction Company” hereinafter referred to as “Bay-shore,” in constructing a concrete warehouse under a fixed fee contract for Harry Karsh, Hy Karsh and their wives, the owners of the property in Oakland on which the warehouse was built, hereinafter referred to as “Karsh.” Bay-shore instituted action 254691 to foreclose a mechanic’s lien against Karsh for the balance allegedly due under the construction contract; Karsh instituted against Bayshore action 25472 for damages (in the amount of $30,000) because of alleged breach of said construction contract on the ground that Bayshore had not completed the warehouse in a workmanlike manner and in conformity with the plans and specifications. The court found in substance that Bayshore had duly performed its contract and was entitled to the agreed price for the principal work and certain extra work less the sum of $625 allowed by the court for cost and expense of repairing concrete work which the court found would ordinarily be done by the contractor after the completion of a job like this one. Accordingly the foreclosure of a lien for the balance so found due was ordered and Karsh were adjudged to take nothing by their action and to pay the costs of both actions. They appeal from the judgment in the consolidated actions, contending that the evidence does not support the findings.

[470]

We have concluded that said contention is without merit, that the conflicting evidence contains substantial support for the findings and judgment and that appellants ’ contrary argument is based on an incorrect stressing of their own evidence, rejected by the trial court, instead of the evidence favorable to respondents on which the trial court relied.

It is conceded by respondents that there were some deviations from a strict performance of the letter of the contract, plans and specifications, which deviations, however, they contend were made in good faith and justified by the circumstances, and some slight imperfections not more than normal for such buildings. It is accordingly their position that they substantially performed their contract, that the value of the building was in no way impaired and that appellants did not suffer any damage. The court’s judgment and findings sustain those contentions except for the allowance of the stated deduction of $625 for repair of imperfections (cracks) of the concrete work, normally borne by the contractor.