Growall v. Pacific Surety Co.
Before: Hall
Synopsis
Building Contracts—Abandonment by Contractor—Completion by Owner.—An owner who has complied with the terms of a building contract cannot be compelled to pay anything in excess of the contract price. When he completes the building, in accordance- with the original plans, because of an abandonment by the contractor, he must be allowed credit for what he has necessarily and reasonably expended in so doing.
Id.—Mechanics’ Liens—Liability op Owner.—Where the owner of a building completes it after the contractor abandons the work, and in so doing reasonably and necessarily expends a part of the balance of the contract price in Ms hands, he is liable to lien claimants only for the remainder of such balance.
Id.—Action on Contractor’s Bond—Costs and Counsel Fees.—The owner cannot recover on the bond of the contractor for payments voluntarily made in excess of what he thus is legally liable for, nor can he recover, on the bond, attorney’s fees and costs incurred by him in defending against the lien claimants.
HALL, J.
Plaintiff recovered judgment against defendant upon a bond given by defendant to secure the faithful performance by one Evans of a contract to erect a building for plaintiff. Defendant moved for a new trial, which being denied defendant appealed to this court both from the judgment and the order.
The building contract was in all respects valid, and was duly filed in the recorder’s office.
Evans, the contractor, abandoned the contract before completion, and plaintiff completed the building according to the original plans and specifications. By this action he sought to recover the excess in the total cost of the building over the contract price, claimed to be $633.15, and also $250 attorneys’ fees paid, and $54.75 costs incurred in defending two suits, brought by lien claimants against him and the original contractor.
The court found in favor of plaintiff, and gave judgment for the amount prayed for.
1. As to the finding to the effect that plaintiff was compelled to pay to complete the building any sum in excess of the original contract price, it is claimed by appellant that such finding finds no support in the evidence.
This contention must be sustained. The contract was for the payment of the total sum. of $9,291, to be made in designated installments, with a final thirty-five day payment of $2,325. At the time of the abandonment of the contract by Evans, plaintiff had, in strict accordance with the contract paid thereon $5,705, which left a balance for the completion of the building in the sum of $3,586.
The owner expended in economically completing the building in strict accord with the plans and specifications the sum of $1,795.15, and no more, which left in his hands the sum of $1,790.85, which is the full amount that he was legally bound to pay to lien claimants.
(Hoffman-Marks Co.
v.
Spires,
154 Cal. 111, [97 Pac. 152];
Raphael Co.
v.
Grote,
154 Cal. 137,
[187]
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