Dorris v. Alturas School District

BURNETT, J.

The action was to recover the value of certain materials furnished by plaintiff to the contractor to be

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used in the construction of a school building for the defendant district. There is no controversy as to the facts, and the decisive question is whether under the findings plaintiff is entitled to judgment. The contract for the building was executed on June 6, 1911, and it is set out in the answer herein. It provided that the contractor, Pearson, “shall and will for the consideration hereinafter mentioned, on or before the fifteenth day of November, 1911, well and sufficiently construct, erect and finish the stone and brick two story school building . . . conformable with and according to the plans, specifications and drawings signed by the said A. B. Pearson and filed . . . and approved by the board of trustees of said school district . . .; that he (Pearson) will, at his own expense and cost find and provide all such good, proper and sufficient materials of all kinds, whatsoever, as shall be necessary and sufficient for completing and finishing the said school building according to said plans, specifications and drawings and will provide and furnish all necessary labor thereon . . . for the sum of twenty thousand three hundred .and fifty dollars, said sum to be paid to the said party of the second part in monthly installments as follows, to wit: Seventy-five per cent of the value of the material and the work upon said building to be paid to the said party of the second part on the first day of each month during the term of this contract, said value to be based upon the superintendent of construction’s estimate. And the remainder of the said twenty thousand three hundred and fifty dollars after the full completion of said school building and upon its acceptance by the said board of trustees of the Alturas school district.” The contract further provided: “Should the said contractor at any time during the progress of said work, refuse or neglect to supply a sufficiency of materials or workmen, the said first party shall have the right to provide materials and workmen to finish the said works, and the expense thereby incurred by said first party shall be deducted from the amount of said contract price.”

The findings of the court inviting attention are as follows: “That pursuant to said contract said A. B. Pearson commenced the construction of said school building, and continued to supply work and materials for the same up to about January 1st, 1912, at which time he reached the end of his resources, ceased work upon the building and abandoned his