Payne v. Cunningham

VICTOR E. SHAW, J.,

pro tem.

Plaintiff brought this action alleging a breach of contract on the part of C. B. Cunningham (now deceased, and for whom his administratrix has, pending suit, been substituted), in that he had failed to complete the alteration and construction of certain buildings within the time and for the amount agreed upon, to plaintiff’s damage in the sum of four thousand dollars.

With his answer denying the material allegations of the complaint, defendant Cunningham filed a cross-complaint wherein he alleged that by an agreement in writing plaintiff employed him to superintend the construction and alteration of certain buildings, and for his services agreed to pay him upon completion thereof ten per cent of the total cost, which cost was $9,848.31, and for which percentage therein, amounting to $984.83, notice of claim of lien was duly filed. For a second cause of action, cross-complainant alleged that under the authority of plaintiff and for his use and benefit he paid out and expended for labor and material used in the construction of said buildings $421.47, no part of which has been paid and for which and the sum of $984.83 he prayed judgment against plaintiff, and asked that the later sum be declared a lien upon the property, foreclosure of which was sought. The answer to the cross-complaint admitted the making of the contract whereby defendant was to receive ten per cent of the total cost of the building, but alleged that by the terms of the contract defendant and cross-complainant agreed that the maximum cost of the building should not exceed seven thousand four hundred dollars, and that defendant was to have no compensation for his services if the cost of construction and alteration exceeded said sum. As to the second cause of action the answer does not deny that cross-complainant,

under the authority

of plaintiff, paid out for labor and material used in the erection and construction of said buildings the sum of $421.47, but merely denies that such sum is due cross-complainant from plaintiff for labor and material used.

The court found that the parties entered into a written contract, the substance of which is as follows: Cunningham

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