Smoll v. Webb

California Court of Appeal Nov 9, 1942 No. Civ. 2966Published

Before: Marks

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Holding. The court held that a contractor is not justified in abandoning a building contract due to an owner's refusal to make progress payments when the contract does not provide for such payments, and that the trial court's findings regarding abandonment and full payment were supported by the evidence.

Issues

Whether a contractor is justified in abandoning a building contract due to an owner's refusal to make progress payments when the contract contains no such provision.
Whether the trial court's findings that the contractor abandoned the project and was fully paid are supported by the evidence.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“the defendants were only obligated to pay plaintiff when the building was completed”

“their failure to respond to the request for a progress payment did not constitute the breach of a condition precedent or of the contract that would justify plaintiff in rescinding the contract or in leaving the job.”

“the evidence supports the findings and the findings support the judgment.”

MARKS, J.

This is an action to foreclose a lien for labor and materials furnished in the construction of a building for defendants by plaintiff. Defendants had judgment and this appeal followed.

Defendants, the owners, employed plaintiff to construct a two-story building for them. Its dimensions were about twenty by twenty-two feet. The first floor was to be used as a tool room and the second floor as a rumpus room. The walls were to be of reenforced concrete faced with country rock and the roof was to be of tile. No plans, specifications or written contract were prepared. The building was to be constructed on a sloping hill with one side of the second story on about the level of the ground. Defendants did all the excavation work, furnished forty-five sacks of cement, 1500 bricks for a fireplace, all of the rock for facings and some lumber at their own cost.

Plaintiff was to be paid his costs of materials used and labor furnished, plus ten per cent. It was agreed that the building was to be constructed in a good and workmanlike manner. One of the defendants testified that the total cost was not to exceed $1,200. This last was denied by plaintiff.

Plaintiff started work during the first week in March, 1940, and left the job uncompleted about May 7, 1940, when defendants failed to advance him any more money.

He filed a lien which recited that the total cost of labor and materials, plus his ten per cent was $1,939.58, that he had been paid $1,134.75, leaving a balance of $804.83 due. This included a $200 charge for employer’s liability insurance. The action is to foreclose this lien.

Defendants in their answer pleaded the oral contract as they understood it; that plaintiff did not complete it; that the labor and materials furnished by plaintiff were of a value of not to exceed $800; that they had paid him $1,100; that plaintiff had been paid in full; that the work done by plaintiff was very inferior and not done in a good and workmanlike manner. The trial court found these allegations of the answer to be true.

Plaintiff urges two grounds for reversal of the judgment: (1) That the trial court erred in finding that plaintiff aban

[458]

Smoll v. Webb

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MARKS, J.

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