Schroeder v. Pissis

[211]

GRAY, C.

Appeal from an order denying plaintiff a new trial. The action was brought by a subcontractor for the foreclosure of a mechanic’s lien. Defendant Pissis was the owner of the building, and the defendants Gardner and Boyden were the contractors. In addition to the denials of the answer it is alleged therein as an affirmative defense “that subsequent to the completion of the building referred to in plaintiff’s complaint defendants Gardner and Boyden entered into a written agreement with plaintiff and with all the other persons who had performed labor upon the building referred to in plaintiff’s complaint, and likewise all persons who had furnished materials for the construction thereof, which said written agreement was in the following language:

“San Francisco, Cal., January

22,

1896.

“We, the undersigned, creditors of Messrs. Gardner and Boy-den, who furnished the materials for the construction of that certain building constructed by the said Gardner and Boyden for one Emile M. Pissis, upon the corner of Pleasant and Taylor streets, in said city, hereby agree to accept, each for himself, the sum of sixty-nine per cent of the amount of our bills, as set opposite to our signatures, and the personal note of Mr. A. Boyden for the remaining thirty-one per cent, and, upon the payment to us ofo sixty-nine per cent in cash and the delivery of the said notes, we, and each of us, do hereby agree to release and discharge said firm of Gardner and Boyden and the property of said Emile M. Pissis of and from all liability whatsoever. Conditional upon all creditors signing this agreement.”

The answer then alleges that the said contract was duly signed by the plaintiff and by all the creditors therein mentioned. The findings and evidence show that this agreement was not signed by all the creditors mentioned.

And furthermore it is shown by the findings that the agreement which the plaintiff and several of the other creditors signed with defendants Gardner and Boyden differed from the agreement set out in the answer in that it did not contain the concluding clause, “conditional upon all creditors signing this agreement”; and it is also found: “That subsequent to -the execution of said agreement, and subsequent to the signing and delivery thereof by plaintiff and defendants Gardner and Boyden