Weaver v. Fickett

FINCH, P. J.

The complaint alleges that the “plaintiff advanced to and for the use and benefit of said defendants . . . $4,779.35, which said amount defendants agreed to repay to said plaintiff, . . . but said defendants failed and refused to repay the said sum or any part thereof.” The prayer is for judgment in the amount alleged. The answer consists of denials of the allegations of the complaint. Judgment was entered in favor of the plaintiff for $1,743.91 and costs of suit, and the defendants have appealed.

The defendants demanded a bill of particulars and, in response thereto, plaintiff served on them and filed a list of payments made by the plaintiff to various persons and firms, aggregating $4,779.35, at the end of which appears the following: “The above and foregoing amounts are moneys ad

[119]

vanced by plaintiff to and for the use and benefit of the defendants Fickett & MeFadden for labor and materials furnished and used on building contracted to be erected and constructed by Fickett & MeFadden for plaintiff . . . , some of which above named amounts were secured by mechanics’ liens filed by creditors in actions to foreclose same.”

The court, on stipulation of the parties, appointed a referee “to take and state an account of all dealings and transactions between plaintiff and the defendants, with relation to the matters involved in said cause.” The parties appeared before the referee and produced evidence. The referee, among other things, found that the plaintiff delivered to the defendants the sum of $10,000 to be used in the construction of the building mentioned in the bill of particulars, and referred to in the briefs as the Victoria Avenue job, and that the defendants “paid out for and on account of labor performed and materials furnished for said building the sum of $8,256.09.” It is undisputed that .the plaintiff delivered the sum of $10,000 to the defendants, as found by the referee. The evidence showing the amount paid out by the defendants in the construction of the building, which consists of numerous items, is too long to set out, and it is deemed sufficient to say that it clearly justifies the finding of the referee in relation thereto. The contract between the parties provides: “For and in consideration of ten per cent of the total cost of said work, and including both labor and materials, to be by said owners paid to said builders, said builders will build, superintend and oversee the building and constructing of said work in accordance with said plans, subject to such changes as may be agreed upon, to use diligence and care in said construction; builders’ charge of ten per cent to be paid only on the actual cost of building. Said cost to be based upon estimate furnished before building is started. Said building to not exceed total cost of ten thousand one hundred twenty-five dollars, including said ten per cent commission. If the total cost is less than ten thousand one hundred twenty-five dollars, 1% per cent of saving to be paid to Fickett & MeFadden in addition to ten per cent. If building exceeds ten thousand one hundred twenty-five dollars, overcharge to be deducted from said ten per cent commission, to the extent of the commission only.”