Flinn & Treacy v. Mowry

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 483 The plaintiffs entered into a contract with the defendant to do certain work upon Laguna street, in San Francisco, in front of her property, and brought the present action to recover after its completion the amount agreed to be paid by her, and to have the same decreed a lien upon her property. The court rendered its decision in favor of the plaintiffs, giving them a lien upon one parcel of the plaintiffs' land for a portion of their claim and a personal judgment against the defendant for the remainder. A new trial was denied and the defendant has appealed.

Negotiations had been had between the parties with reference to paving the street, and a proposal therefor had been presented to the appellant on behalf of the plaintiffs, and a formal contract for that purpose, bearing date April 10th, was afterward prepared by them and submitted to her. By the terms of this contract she was to pay twenty-four cents per square yard for paving, but in the proposal originally made to her the plaintiffs had offered to do the same at the rate of twenty cents per square yard. Before the execution of this contract, viz., April 14th, the plaintiffs visited the appellant at her house, and while there the terms of the agreement were discussed — Mr. Alpers, who appears to have acted in behalf of the appellant and as her advisor, being also present — and at that interview an instrument was prepared by the plaintiff Flinn, which proported to be a receipt from the appellant for the difference between twenty-four cents per square yard, as named in the contract, and twenty cents therefor, as had been agreed upon between them, and which *Page 484 also contained the following: "The balance ($1,305.59) thirteen hundred five and fifty-nine one-hundredths to be paid in installments of two hundred dollars per month, the first payment to become due four months from date of completion, and each subsequent payment to mature within thirty days next succeeding, all without interest." After this agreement had been signed by the plaintiffs the appellant expressed herself satisfied, and directed Mr. Alpers to sign the contract, which he thereupon did as follows: "E.M. Mowry, per C. Alpers." At this time only one property owner had signed the contract, and it being a private contract it was necessary that the owners of a majority of the frontage should sign it in order to obtain a permit for doing the work. The contract was therefore inchoate, and was left with Mr. Alpers, who afterward procured other property owners to sign it, and returned it to the plaintiffs. This evidence was sufficient to justify the court in finding that the defendant entered into the agreement with the plaintiffs set forth in the complaint.