Morel v. Simonian

BURROUGHS, J., pro tem.

The plaintiff brought this action to recover the sum of $865.70 alleged to be the balance due on a building contract and to foreclose a mechanic’s lien on the property upon which the building was erected. The action was dismissed as to all of the defendants other than Lionie Berthe Bal Simonian. The court entered judgment in favor of the defendant and the plaintiff appeals.

It appears from the court’s findings of fact that plaintiff and defendant entered into a contract by the terms of which the plaintiff agreed that for a consideration of $2,400

[492]

he would build, in accordance with plans and specifications adopted by the parties, a dwelling-house and garage upon the premises described in the complaint and upon which he seeks to foreclose his lien. The court further found that plaintiff did not substantially perform the contract and that the building has never been completed in accordance with the plans and specifications and has never been accepted by the defendant. It is further found that the defendant has paid on said contract the sum of $1800, and because of the plaintiff’s failure to construct the building according to the plans and specifications and in a workmanlike manner, defendant was damaged in an amount in excess of any balance remaining due him under the contract.

The appellant contends that such findings are not supported by the evidence. Bearing in mind the well-settled rule that courts of appeal will not disturb findings of fact based upon a conflict in the evidence

(Clopton

v.

Clopton,

162 Cal. 27 [121 Pac. 720]), we will briefly epitomize some of the evidence that sustains the findings of fact.

The respondent testified that the buildings were not completed on the eighteenth day of September, 1925, or at all; that many things were not completed; that the roof was not braced; that the workmanship and plumbing were not what they should have been; that the house could have been occupied, but did not conform to the specifications; that the specifications called for larch siding on the house instead of the number 2 hemlock which was used by plaintiff; that the cement should have been 3 inches thick and, as a matter of fact, was much 'less than that in some places, and that the house did not comply with the specifications in many other respects and was not satisfactory to her.