Camp v. Behlow

COOPER, J.

This action was brought to recover a balance of $863 for the performance of certain concrete work on the

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basement of a stone building. The court made findings, upon which judgment was ordered and entered for plaintiff in the sum of $663, and costs. This appeal is from the judgment and order denying the defendant’s motion for a new trial The complaint alleges that in August, 1900, the plaintiffs entered into a contract with defendant by which they agreed to furnish the labor and material and complete the concrete work of a certain two-story building, in conformity with certain plans and specifications, for the sum of $1,449, in four equal installments of $362.25 each, payable at certain designated times as the work progressed; that for additional and extra work the price per cubic foot of concrete should be in accordance with the contract price for the other work, and that the extra work so done amounted to $238.50; that defendant has paid plaintiff on account the sum of $924.50, and no more, leaving a balance of $863 due and owing on the contract. The complaint further alleges in a separate paragraph that the reasonable value of the work done and performed, by the plaintiffs for the defendant under the terms of the contract is $1,787.50, and that defendant has paid plaintiff $825 thereon, and no more, and that -the sum of $863 remains wholly unpaid. Defendant denied most of the allegations of the complaint, and alleged “that the plaintiffs wholly failed, refused and neglected to perform the said work in accordance with the said alleged contract, or plans, or specifications. That said specifications provided that, as shown on plans and sections, all the walls were to be plastered on the outside with one-inch thick cement mortar, also the bottom and sides of foundation were to have one-inch thick of plastering of said mortar, to be in equal thickness and smooth to make a perfectly watertight basement. ’ ’ It is further alleged in the answer that the walls of the building were not made water-tight, and that by reason thereof, and by reason of the failure to place upon the outside thereof a plaster of cement mortar, the building has been greatly damaged. Upon the issues thus made the case was tried. The contract was not recorded before the commencement of the work, and hence was void as to laborers and materialmen; but as no question is involved as to any laborers’ or materialmen’s claims, or any lien of any kind, the fact that the contract was not recorded becomes immaterial. The court found that the defendant was indebted to the