Sullivan v. California Realty Co.

Building Contract—Effect of Failure to Sign Specifications—Action by Owner to Cancel Contract.—The provision of section 1183]^ of the Code of Civil Procedure declaring a building contract for more than one thousand dollars void, if it refers to plans and specifications, unless they are completed and signed by the parties to the contract at the time of the execution thereof, is intended for the protection of other persons entitled to liens, who are not parties to the contract. The contractor and owner of the building cannot claim that the contract is void as between them for failure to comply with the statute; and the owner cannot maintain an action to avoid the contract, and have it canceled and delivered up, because the plans and specifications were not signed as required by the statute.

Id.—Failure to do Equity—Expense Incurred by Contractor.—If it be conceded that the contract was void between the parties, the owner cannot maintain an action in equity' to cancel the contract, where he has not offered to do equity, by reimbursing the contractor who has incurred expense in placing building material on the ground and in commencing work and operations under the contract.

Id.—Non-Payment of First Installment-Immaterial Attempt to Erase Receipt—Evidence—Findings.—Where the court finds that no part of the first installment under the contract had been paid, an attempted erasure by the contractor of a receipt of payment thereof acknowledged in the contract, which was still left legible, is immaterial, and cannot affect the admissibility of the contract in evidence.

Id.—Cross-Complaint for First Installment—Jurisdiction.—Where the plaintiff sues in equity to cancel the contract, equity has jurisdiction of every subject-matter connected with the transaction between the parties, and may award judgment for the defendant under a cross-complaint for the amount of the first installment due to the contractor and unpaid, though the amount thereof is less than three hundred dollars.