Roberts v. Spires

WASTE, J.

The defendant and cross-complainant, Mary H. Spires, has alone appealed from a portion of the judgment in the above-entitled consolidated lien ease. The appeal is on the judgment-roll alone.

The appellant entered into a contract with the plaintiff and respondent Roberts for the erection of a two-story, class A building on property owned by her in the city of Los Angeles. The contractor agreed to supply all labor and materials required for the construction of the building at a price of $190,000, subject to necessary adjustments for extras or omissions made in accordance with the terms of the contract. Respondent United States Fidelity & Guaranty Company executed for Roberts a bond for the benefit of laborers and materialmen, in the sum of $95,000, and a faithful performance bond, to secure the owner, in the sum of $47,500. The contract, accompanied by plans and specifications, and the bonds were filed in the office of the county recorder before the commencement of any work. The contract provided for the completion of the entire building on February 15, 1921, which time was, by agreement, extended for a period of one month. The building was not completed, however, until August 1st. A controversy arose over a claim for damages alleged by the owner to have been caused by the contractor’s delay, and, a settlement not being had, Roberts brought an action to recover the unpaid contract price, amounting to- $54,947.47, with adjustment according to the determination of the court for certain extras and omissions, and to foreclose a contractor’s lien on the owner’s property. Appellant, by counterclaim embraced in her answer, and by cross-complaint, pressed her claim for damages, alleging that

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she had been damaged in the sum of $39,351.31 by reason of delay due to the contractor’s negligence in the completion of the building. Her prayer was for an offsetting of such damages against the unpaid balance of the contract price for the building then remaining in her hands. As numerous actions for the foreclosure of materialmen’s liens had been brought against the contractor and the owner, appellant also asked that the various lien claimants prorate the' excess of such unpaid contract price in her hands, after deducting the damages caused by the contractor's delay. The causes of the various materialmen were consolidated and tried with the action brought by the contractor.