Cavanagh v. Keplinger

PRESTON, J.

This is an action to enforce a mechanic’s lien for a balance claimed for extras due upon the construction of a building.

The complaint alleges the furnishing of materials and the performance of labor in connection therewith under a contract for the construction by plaintiffs for defendants of a combined residence and garage. It also alleges the completion of the work, the filing of a notice of completion by one of the defendants and the filing thereafter of the claim of lien here sued upon.

The answer admits the filing of the notice of completion, the filing of a lien by plaintiffs and pleads a written contract asserted to be the full and sole measure of the rights of the parties. This written contract was what is known as a guaranteed maximum cost contract with commission attached for the contractor and provided that extras should be calculated upon a cost plus ten per cent basis, said extras to be furnished solely upon order of the architect.

But the evidence abundantly shows that, although the written contract was executed, the parties, in a very large

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measure, disregarded its provisions, among other things dispensing with the architect therein'provided for and dealing directly with each other throughout the building operations. Scarcely a provision of the contract was left in full operation. Plaintiffs claim 73 items of extras and a balance due therefor of $3,089.26. The court held with plaintiffs as to all of said items except 18, which were held to have been included in the original contract price, and accordingly made findings in favor of plaintiffs, fixing the amount due them at $1,878.44. Defendants have appealed.

The findings, except as to the amount claimed, are in the language of plaintiffs’ complaint. The duty of defendants to pay for said extras, many of which were ordered in writing by them, and admitted to be such, seems too clear for controversy.

(Wyman

v.

Hooker,

2 Cal. App. 36, 41 [83 Pac. 79] ;