Herdal v. Sheehy

MELVIN, J.

Plaintiff appeals from the judgment and from an order denying his motion for a new trial.

The action was one for the foreclosing of a lien upon real property in the city and county of San Francisco. Defend-, ant did not dispute the following facts: William J. Sheehy,

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her predecessor in interest, entered into a contract with plaintiff’s assignors according to the terms of which they were to erect a building upon his land. The contract price was $3,565, payable in four installments. W. J. Sheehy filed and recorded a written acceptance of the building on March 8, 1910. All of the contract price was paid to plaintiff’s assignors except $660, the amount for which their lien was filed. The foregoing facts are not disputed, but the defense to the action was based upon the' fact, found by the court, that the contractors, contrary to their written agreement with Mr. Sheehy, had erected the building partly upon his land and partly upon an adjacent public street. The court found that the defense was a good one, and that the building had not been located in compliance with the terms of the contract because it was not entirely upon the property of William J. Sheehy. There was a further finding that when the formal acceptance was filed this error in the location of the building was unknown to Mr. Sheehy, and that he did not waive the failure of the contractors to comply with the terms of their agreement.

Plaintiff had included in his complaint a count in

quantum meruit,

and upon the issue joined on this cause of action the court found that the reasonable value of the work done and materials furnished was less than the amount actually paid under the contract.

Appellant does not question the finding that the building was partly upon public property. His theory is that an independent contractor prepared the foundations for the building, and that in the execution of their contract for the erection of the superstructure plaintiff’s assignors did nothing more than follow the directions of Mr. Sheehy to use said erroneously located foundations.

Even conceding the