Conrad v. Foerst

KERRIGAN, J.

Action to foreclose a mechanic’s lien. Plaintiff contracted with defendant to furnish all the work on a two-story and basement frame building with certain exceptions for the sum of $4,644, payable at specified times as the work progressed. Plaintiff entered upon the performance of the contract, and thereafter, so it is alleged, completed all the conditions on his part to be performed. Notice of completion of work was filed, and thereafter the architect delivered to plaintiff a certificate that the last payment mentioned in the contract was due. This payment amounted to the sum of $1,164. Plaintiff also claimed the further sum of $112, alleged to be the reasonable value of certain extra work ordered by defend

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ant. The sum of $600 was paid by defendant upon these claims, leaving a balance due thereon of $676, for which sum plaintiff filed his claim of lien. The amount not being paid, this action was brought to recover the same.

Defendant, answering, alleged that plaintiff had not performed all the conditions of the contract, and charged that the building was not completed in a good and workmanlike manner as required by the contract, and further that the building was never completed. • The answer specifies twenty-four particulars wherein it is alleged that the plaintiff failed to construct the building in accordance with the plans and specifications. Then follows a cross-complaint by which defendant seeks to recover from plaintiff an amount in excess of one-half of the entire cost of the building for alleged defects and delay in its construction.

The trial court found that all the alleged objections and defects were of a trivial nature and that the same could be readily remedied and repaired at a cost not exceeding $30. After signing the findings and decision, however, the court ordered and the respondent stipulated that the judgment provided for by the findings should be reduced, and that the - sum of $76 thereof should be remitted. Accordingly, judgment was entered for the sum of $600, from which judgment defendant appeals.

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It is here contended that, as the plaintiff never completed his contract in strict compliance with the plans, drawings, and specifications, the law will not permit him to recover on the contract for the reason that his pleadings do not recite that any departures therefrom were either waived or justified by defendant’s conduct. We are cited to the ease of