Stone v. Serimian

[521]

WASTE, C. J.

The plaintiff brought this action to recover the sum of $6,581.85 alleged to be the reasonable value of labor and materials furnished by him at defendants’ request for the reconstruction of a certain theater building of which the defendants were the owners. There, were three counts in the amended complaint. In the first two foreclosure of a mechanic’s lien was sought. The third was in the form of a common count for labor performed and materials furnished in and about the construction, alteration, and repair of the building. The defendants answering denied the various allegations of the complaint, and, at the same time, interposed a counterclaim in the sum of $3,800 for labor and materials required to be furnished by the defendants by reason of the failure of the plaintiff to perform and furnish the same. They also interposed a cross-complaint for $6,000 damages alleged to have been caused by reason of the delay occasioned by the plaintiff in the reconstruction of the building.

By the terms of the written contract, which the court found was made, the plaintiff agreed with the defendants to do certain designated work of, and to furnish the materials for, the reconstruction of the old building of the defendants for ten per cent of the cost of such reconstruction, the entire cost, including the builder’s ten per cent, not to exceed the sum of $12,500. The contract did not contain the whole agreement between the parties, but it was verbally agreed between the plaintiff and the defendants that the sum of $12,500, which was to be the outside figure for the construction of the building, should be paid in three installments, $4,000 when the walls of the building were up, $4,000 when the roof was on, and $4,500 when the work was completed. The plaintiff commenced the work, but did not fully complete the contract for the reason that, prior to its completion, the defendants repudiated the transaction and refused to pay the second installment of $4,000 when the roof was on, and did not make any further payments. By reason of the failure of the defendants to make payment, the plaintiff was compelled to cease work on the building. The court found that the plaintiff fully complied with all the terms and provisions of his contract until prevented by the defendants, and that the reasonable value of the labor and materials rendered and furnished by the plaintiff under the