Adams v. Burbank

Searls, C.

This action was brought by J. F. Adams, the respondent, to recover from appellant the sum of four thousand seven hundred and forty-four dollars and sixty-four cents, with interest and costs, for work, labor, and services performed and materials furnished in the construction of a brick building in the city of Los Angeles.

It is conceded by the pleadings that on the first day of June, 1891, plaintiff and defendant entered into a written agreement, by the terms of which the former was to furnish the material, labor, and work, as specified in certain specifications and shown by the plans, for a brick building to be erected for defendant on Broadway and First streets, in the city of Los Angeles, for which plaintiff was to receive nine dollars and seventy-five cents per thousand, as per wall measure of twenty-one bricks to the foot, etc., to be paid by defendant at the rate of seventy-five per cent, as the work progressed; the estimates of the superintendent to be taken for the value of the work done, and his certificate to be given therefor. The residue to be paid upon the completion and acceptance of the work, and upon the plaintiff furnishing releases from all materialmen, or receipts for

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all material used, and for all labor performed to the satisfaction of defendant.

The specifications are made a part of the contract, which was filed with the recorder of the county.

Plaintiff entered upon the construction of the building, furnished the materials, laid the foundation, built the first story and a small portion of the second story of said building, when, some time in July, 1891, he ceased work' upon the same, leaving certain materials, such as brick; mortar, tools, and appliances for the work, and defendant finished the construction, using the material on hand, etc.

At the time plaintiff ceased work there was due from him for materials furnished by sundry parties, as follows:

To the Inglewood Brick Company, for brick. . .$401 50 To H. S. Hudspeth, for sand................. 37 00

Plaintiff, a few days after ceasing work on the building, gave orders for these claims upon the defendant, which he refused to pay, and they thereafter filed liens on the property for the several amounts due them, and prior to the trial of this action suits had been brought to foreclose said liens. Prior to the trial the action to foreclose the Hudspeth lien was dismissed.