Wagner v. Ruppe

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RICHARDS, J.

This action was one brought for the foreclosure of a mechanic’s lien upon premises owned by the defendant upon which a building had been constructed under the provisions of an agreement between the plaintiff and the defendant, by the terms of which plaintiff agreed to supply defendant plans and specifications and to superintend and oversee the construction and erection of a certain building upon said premises; said contract further provided that plaintiff should procure the best possible bids for all material wanted or used, including plumbing, gas, electrical wiring, painting, decorating, plastering, concrete, iron and brick work, and all other necessities for the completion thereof, and that when said bids were so procured by plaintiff the same were to be submitted to said defendant for his approval and selection. Said contract further provided that plaintiff should receive for his compensation for said services the sum of ten (10%) per cent of the total construction price of said building, payments to be made upon the tenth day of each month of ten (10%) per cent of the total amount of bills then paid. The plaintiff alleged that he proceeded with the performance of this said agreement, which was by him to be performed, until on or about the twenty-seventh day of September, 1920, when said building was about nine-tenths completed, when his services were dispensed with by the defendant; that the construction price of said building up to the said twenty-seventh day of September, 1920, when bis services in relation to the same ceased, was $47,392.41, and that the amount of his commission therein according to terms of his said contract was the sum of $4,739.24, of which $2,385 had been paid, leaving a balance due the plaintiff of $,2,354.24, no part of which had been paid. The complaint then proceeded with the usual averments as to the filing of a mechanic’s lien upon the premises for the balance due plaintiff upon said contract. The answer of the defendant expressly admitted the averments of plaintiff’s complaint as to the terms of the contract between the parties and also by failure to deny the same admitted the regularity of the proceedings to establish his lien. It then proceeded to set forth a number of particulars in which the plaintiff was charged with having negligently performed his duty in relation to the erection of said building by which

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