Scheerer Co. Inc. v. Deming

SLOSS, J.

Appeals by plaintiffs in six actions to foreclose mechanics’ liens. The actions were consolidated by order of the court and judgment went in favor of the defendant Allen D. Butt, the owner of the property involved. The lien claimants appeal from the judgment and from an order denying a new trial.

On April 14, 1904, the defendant Henry C. Deming, as contractor, entered into a written contract with the defendant Butt, as owner, for the construction of a three-story and basement brick building, in accordance with certain plans and specifications. The contract price was $24,000, payable as follows: $2000 when the foundation and basement walls should be up and the first-floor joists laid; $2900 when the first-story walls should be up, the iron work up and the second-floor joists laid; $2900 when the second-story walls should be up and the third-floor joists laid; $2900 when the third-story walls should be up and the roof on; $2900 when the plastering was completed; $2900 when said building was completed, and $7500 thirty-six days after the notice of completion should be filed. The contract was duly filed in the office of the county recorder before any work, labor, or materials were done or furnished upon said building. Deming commenced work under the contract, and continued in the construction of the building up to the twenty-third day of September, 1904, when he abandoned the contract and ceased work thereunder. At that time there had been paid to him the sum of $10,700, the first four payments mentioned in the contract. The owner took posses

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sion of the building upon its abandonment by the contractor, and completed it according to the plans and specifications, at a cost greater than the balance in his hands under the contract. The plaintiffs had respectively furnished to Deming labor and materials to be used, and which were used, in the building to the amounts claimed in their complaints and there remained due to them sums aggregating between five and six thousand dollars. They had duly filed their claims of lien.

The foregoing facts were found by the court on the stipulation of the parties or on uneontradieted testimony. The only material issues concerning which there was any dispute at the trial were those relating to the value of the work done by the contractor up to the time of abandonment. In this regard the court found “that the value of the work and materials already done and furnished by the said Henry C. Deming under said contract, at the time of said abandonment, including the materials then actually delivered or on the ground, estimated as near as may be by the standard of the whole contract price, was and is, the said sum of ten thousand seven hundred dollars ($10,700.00).” Since this sum did not exceed the amount which had been paid to the contractor, pursuant to the terms of the contract, before the abandonment of the work, the necessary conclusion was the one drawn by the court, — namely, that nothing was due from the owner to the contractor or to any of the claimants who had furnished laboi and materials to the contractor. This is the result of the provisions of section 1200 of the Code of Civil Procedure, which, as we have held in an opinion filed within a day or two, defines the exclusive method of determining the liability of the owner in eases where the contractor abandons work under a valid contract.