Ratto v. Younie

CURTIS, J.

Action brought to recover .the balance claimed to be due plaintiffs upon a contract for the construction of a business block in the city of Susanville, county of Lassen, and to foreclose a contractor’s lien against the premises upon which the building is located for the amount found to be due. Plaintiffs sought also to establish the priority of their lien over a mortgage lien held by the defendant, the Lassen Industrial Bank, against said real property. The trial court gave judgment in plaintiffs’ favor in the sum of $3,325.03 against the defendant W. A. Younie and decreed

[422]

that they were entitled to a lien for that amount against said real property, but held that their lien was subsequent and subject to the lien of the defendant, the Lassen Industrial Bank. Plaintiffs concede the correctness of said judgment in so far as it establishes the priority of the lien of said bank over their own lien, but are dissatisfied with the amount awarded them in the judgment against the defendant Younie. They have appealed therefore from that portion of the judgment awarding them judgment against the defendant Younie in the sum of $3,325.03.

Plaintiffs contend that they constructed said building under a contract with Younie whereby they were to be paid the actual cost of all labor and materials furnished in the erection of said structure and in addition thereto fifteen per cent of the actual cost of said labor and materials, in payment of their services for supervising and directing the construction of said building. On the other hand, the defendant Younie contends that prior to the erection of said building he entered into a contract with the plaintiffs whereby they agreed to construct said building for the sum of $45,000. The court found for the defendant upon this issue, and that said building was constructed under said contract; that extras in the amount of $7,792.38 had been furnished by the plaintiffs and that defendant had paid plaintiffs the sum of $49,467.35, leaving a balance due plaintiffs in the sum of $3,325.03.

Plaintiffs now contend, as they contended before the trial court, that they are entitled to recover upon their contract as pleaded in their amended complaint or upon what is frequently referred to as a “cost-plus contract,’’ rather than upon a contract for a stated or agreed amount. The contract between the parties was verbal, and as might be expected, the evidence offered by the respective parties to establish the same was contradictory in the extreme. There was positive and substantial evidence given by Younie, and corroborated by apparently reliable and disinterested witnesses, that the building was to be constructed by the plaintiffs for an agreed price of #45,000. Therefore, the finding of the court as to the character of the contract under which the building was constructed cannot be disturbed by this court.