Brill v. De Turk
Before: Gray
Synopsis
Building Contract—Payment of Bills — Substantial Compliance with Law.—A building contract providing that “all bills for mate rials and labor, when indorsed by the contractor, will he paid on demand, provided said bills do not exceed seventy-five per cent of the whole value of materials and labor employed in the erection of the building to the date of the bills,” and that a fixed sum, “upward of twenty-five per cent of the contract price, is to be paid thirty-five days after the building is completed,” does not substantially depart from the provisions found in section 1184 of the Code of Civil Procedure.
In.—Action on Contractor’s Bond—Voluntary Payment of Liens by Owners—Excess of Sum Due Contractor—Surety not Liable.— The owner of the building, who neglected to avail himself of a valid defense to the foreclosure of liens filed in excess of the amount due the contractor, under a valid contract, and paid a judgment foreclosing the same, must he deemed to have made a voluntary payment of such excess, and cannot maintain an action to recover the excess so paid against a surety on the contractor’s bond, whose liability covered only claims accrued against the building, and did not extend to the releasing of the building from invalid liens.
Id.—Pleading—Conclusion of Law—Right to Liens—Immaterial Admission—Facts Supporting Judgment for Surety.—An averment in the complaint in such action that the claimants whose liens were paid by the owner were entitled to their liens, is of a conclusion of law, and an admission thereof in the answer may he disregarded as immaterial. The validity of a judgment in favor of a surety cannot be affected by such averment and admission, but depends upon facts pleaded and found which support the judgment.
[242]
GRAY, C.
This action was brought by the owner of the building on a building contractor’s bond. Plaintiff had judgment by default against the builders, who were the principals on said bond. Defendant De Turk, the surety, answered, and after a trial without a jury obtained a judgment, from which and from an order denying a new trial plaintiff appeals. The bond sued on provided that the principals therein should faithfully keep and strictly perform all of the covenants of their contract, and well and truly pay, or cause to be paid, all just claims against them for the labor and materials performed and furnished. The building contract—attached to and made part of the complaint—was in the usual form, except that the provision for payment was “in the manner following: “All bills for materials and labor, when indorsed by. the contractor, will be paid on demand, provided that said bills for material and labor do not exceed seventy-five per cent of the value of the material and labor employed in the erection of said building up to the date of said bills. Four hundred and ninety-five dollars (upward of twenty-five per cent of contract price) to be paid thirty-five days after building is finished and accepted.”
1. It is contended that the 'above provision of the contract is in violation of those provisions of the mechanics’ lien law found in section 1184 of the Code of Civil Procedure, reading as follows: “But the contract price, shall, by the terms of the contract, be made payable in installments at specified times after the commencement of the work, or on the completion of specified portions of the work, or on the completion of the whole work; provided, that at least twenty-five per cent of the whole contract price shall be made payable at least thirty-five days •after the final completion of the contract.....In case such contracts and alterations thereof do not conform substantially to the provisions of this section, the labor done and materials furnished by all persons except the contractor shall be deemed to have been done and furnished at the personal instance and request of the person who contracted with the contractor, and they ■shall have a lien for the value thereof.”
We think there was no substantial departure from the statute in the quoted provision of the contract. The main purpose of the statute quoted is to secure to laborers, materialmen, and
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