McIntosh v. Funge

KNIGHT, J.

This appeal was taken by the defendant, W. W. Funge, Jr., now deceased, from an order denying his motion to offset judgment and issue execution for an amount claimed to be due as repayment and contribution. (Sec. 709, Code Civ. Proc.)

The controversy arises out of the following facts: Appellant entered into a contract with the respondents, McIntosh Bros., for the construction of a building on appellant’s lot, and after the work had progressed to a certain stage differences arose between appellant and the contractors, as a result of which appellant refused to allow the contractors to proceed further with the construction of the building; whereupon the contractors filed an action for damages against appellant for alleged breach of contract. In the meantime two subcontractors, Smith Lumber Company and G. Massagli & Co., filed liens against the property for materials furnished and work performed, and later brought actions to foreclose said liens. Besides answering the complaint of McIntosh Bros., appellant filed a cross-complaint against

[72]

them for damages for alleged breach of the building contract. The three actions were consolidated for trial, and the determinative issue presented and tried in the main action, between the contractors and the owner, was whether the building contract was breached by the contractors, or by appellant. The trial court found that it had been breached by appellant and rendered judgment accordingly, awarding McIntosh Bros, damages and directing foreclosure sale of appellant’s property to satisfy the liens of the subcontractors. Appellant took an appeal, but the Supreme Court affirmed the judgment

(McIntosh

v.

Funge,

210 Cal. 592 [292 Pac. 960, 74 A. L. R. 420]), holding that the trial court’s finding on the determinative issue above mentioned was sustained by the evidence. Thereafter appellant paid and discharged the liens, and after having done so obtained from the trial court under the authority of said section 709 of the Code of Civil Procedure an

ex parte

order directing the clerk to enter upon the docket appellant’s claim against McIntosh Bros, for contribution and repayment, and to issue execution therefor. Later, on the same day, the trial court nullified said order, presumably upon the ground that the parties against whom it operated were entitled to notice of motion.