Bailey v. Breetwor

BURKE, P. J.

Two separate actions to foreclose mechanics’ liens against the same parcel of real property and the same defendants were consolidated for trial. The ease was tried without a jury and judgment was entered in favor of plaintiff Colich Construction Company (“Colich”) in the amount of $3,213 and in favor of plaintiff Phillip Bailey doing business as Bailey Construction Co. (“Bailey”) in the sum of $3,818. Defendants, owners of the property, Saul J. Breetwor and Beverly Breetwor (“Breetwor”), appeal from the judgment.

[289]

Viewed most favorably to the plaintiffs, the following is a summary of material facts. Breetwor entered into a contract with Colich to grade and compact Breetwor’s building site as per plan, including compacting available fill material to the approximate profile shown on the grading plan for a contract price of $2,600. The contract included the securing of a report by an engineering firm acceptable to the City of Inglewood (“City”) Building Department “that all work has been done to City specifications.” Colich subcontracted the grading and compacting work to Bailey, with Bailey agreeing to perform the work in accordance with the provisions of the Colich-Breetwor contract and with Colich reserving to itself the installation of certain drainage structures.

There had been a natural drain running across the property at its lowest point, and upon commencing the work and scraping the surface of this area Bailey uncovered an extensive amount of wet clay. This was called to the. attention of the company engaged by Bailey to report to the City of Inglewood and Bailey was advised that all of this wet clay material would have to be removed in order to permit proper compaction of the soil in accordance with City requirements. Bailey notified Breetwor of the condition, the necessity for its correction and that such work was not included in his subcontract with Colich; further, that if the work was to be done it would have to be paid for as an extra. When Breetwor inquired as to the cost of doing the extra work Bailey advised him that it was not possible to give him an estimate without knowing the extent of the underlying wet clay strata and suggested that Breetwor contract with an engineering company to conduct soil tests to determine the extent of the condition. Breetwor insisted that the compaction of the muddy soil was within the terms of his contract with Colich. Bailey advised him that unless Breetwor agreed to pay for the work as an extra he would stop work on the contract. Breetwor urged him not to stop work because he had plans to construct an apartment building on the site and did not want the job delayed. Bailey offered to do the extra work on a cost plus 10 per cent to cover overhead basis. Breetwor told him, “Until I get this straightened out with Colich Construction Co. I will authorize you to go ahead and I will assume responsibility for the costs.” Breetwor’s version of this conversation was more favorable to himself but that con