Kircher v. Hunter

CRAIG, J.

The respondent contracted in writing with one James H. Aye, as general contractor, to construct a dwelling-house. The latter obtained appellant’s services to construct certain tile work in two bathrooms, which later proved defective, whereupon respondent demanded that appellant perform necessary reconstruction work, which he declined to do. It was done by another, whom respondent paid, and thereafter instituted this action against the appellant for the cost of such extra work. Judgment was rendered in favor of the plaintiff, a motion for a new trial was prosecuted, which was denied, and this is an appeal from the judgment and from the ruling upon said motion. Since no appeal lies from an order denying a new trial, the proceeding last mentioned must be dismissed.

The parties agree upon the facts, and mutually submit for determination the question of law whether respondent, the owner, should recover from appellant or the general contractor. The contract first mentioned provided, in part, as follows:

“(1) The said builder agrees to build for the said owner, . . . a two-story frame and stucco dwelling, also a frame and stucco garage, all in accordance with plans and specifications . . . The owner agrees to pay the said builder the sum of $14,875. no/lGO to include the full cost of construction, labor and materials. The payment of said sum is to be as follows: Once each week there shall be an accounting between the said builder and the said owner, at which time

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receipted vouchers for labor and petty items will be tendered to the owner by the builder in return for the owner’s check to cover such total amounts. All bills for material shall be paid to the dealers direct by the owner. Any and all sums remaining within the total amount of the cost price, namely $14,875. no/100 plus all sums for extras, if any, at the completion of the building shall be paid to said builder, provided that a period of thirty-five (35) days shall elapse and it is found that no liens have been filed.”

The plans and specifications required that:

“The floors in the bathrooms are to be one inch hexagonal Eastern tile, with clover leaf in blue border, well laid in cement, making an absolutely water-tight job.