Nuttman v. Chais

WILSON, J.

John Bonin & Sons Construction Company entered into an agreement in writing with defendant George J. Chais for the construction of a den, shower house and improvements on defendants’ residence property in accordance with plans and specifications. The Bonin Company engaged Leon A. Chernus as subcontractor on the work. Upon the completion of the contract, together with extra work ordered during the progress of the construction, defendants failed to pay "the full amount agreed upon, whereupon the construction company and Chernus filed mechanics’ liens for the balance remaining unpaid and assigned the liens to plaintiff. This action is against Chais and his wife and others to foreclose the liens. Judgment was rendered in favor of plaintiff from which defendants have appealed. Defendants have also purportedly appealed from the order denying a new trial.

After the contractors had commenced the work and laid out the foundation defendants determined that they would like a larger building and other improvements not provided for in the original contract, plans and specifications. The

[478]

improvement was completed under the revised plans and specifications.

Defendants contend that the trial court erred in receiving parol evidence of the modification of the original agreement and in basing its findings thereon. The evidence was admitted without objection and in fact much of it was brought out by defendants on cross-examination. The case having been tried on the theory that the contract had been orally modified, and the question being whether the contract had been completed according to the modification, defendants will not be permitted to present a contrary theory on appeal.

(Grimes

v.

Nicholson,

71 Cal.App.2d 538, 543 [162 P.2d 934];

Priebe

v.

Sinclair,

90 Cal.App.2d 79, 87 [202 P.2d 577];

Munfrey