Manning v. Broadmoor Improvement Co.

THE COURT.

This is an appeal from a judgment entered in favor of the defendant and against plaintiff.

The sole question in the case is, Does the evidence .sustain the findings

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The defendant, desiring to promote the sale of a suburban tract of land divided into building lots, known as Broadmoor,

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in Alameda County, sold to the plaintiff six lots for the aggregate sum of $11,205, and at the same time entered into an agreement with him, whereby the defendant was to give to the plaintiff a bonus of six thousand dollars upon condition that the latter should build on each of the six lots a dwelling-house, to cost two thousand five hundred dollars, according to plans and specifications to be approved by the defendant; that the work should be prosecuted with due diligence, and no mechanics’ liens to be filed against the property.

Of the six thousand dollars bonus all has been paid but the sum of $449.07, and the purpose of this action is to recover that sum. Five of the buildings were completed, and the reason the defendant refused to pay the balance of the bonus was, as he claimed, that the sixth building was left uncompleted.

We agree with the position taken by the defendant. The buildings were not completed within the time specified in the contract, nor did the plaintiff, as agreed, keep the property free from liens of laborers and materialmen. But aside from those matters, and so far as the last house is concerned, it appears that the plaintiff, notwithstanding that his attention had been called to certain defects in that building, and that he had promised to remedy them, failed to do so in the following particulars: By omitting to put an ash-gate on the outside of the chimney; to repair certain back windows; to construct gutters on the roof and two sides of the house; to install doors to a china closet, and to put in place certain electric fixtures. These things were not done promptly or at all. The plaintiff admitted that the house was unfinished in the respects mentioned, and, as before stated, promised to complete the building and obviate the objections, whereupon, according to the testimony, the defendant expressed himself as willing to pay the balance of the bonus, notwithstanding that the contract was violated in other respects. It also appears from the testimony that the defects were important and substantial, having regard to the purpose of the defendant in entering into the contract.