Meigs v. Bruntsch

Department No. 2, Myrick, J.: This is an action to enforce liens in favor of plaintiffs for ma[602]terials furnished by them, in and about the construction of a house by defendant Boettger for defendent Bruntsch under a contract. The total amount of the liens claimed is $457.95, and " plaintiffs also ask judgment for $200 attorney’s fees, and $52 expenses of the liens. Plaintiffs had judgment for $29.95, without costs or attorney’s fees; plaintiffs moved for a new trial, which was denied, and they appealed.

After examining the transcript, we find that the contract price for erecting the building was $1,515; that $1,000 was paid as the Avork progressed; that the last payment, $515, was not made, because Bruntsch claimed that the building Avas not completed “in a good, workmanlike, and substantial manner,” as the contract required it should have been; that the $29.95, for Avhich judgment Avas rendered, Avas for extra Avork; that the substantial question submitted to the Court below, Avas whether the contract had been complied with on the part of Boettger, upon which the evidence vras conflicting; that the Court found “ Boettger never did construct or finish said building in a good and workmanlike or substantial manner; but, on the contrary, erected and constructed the same in a careless, unskillful and unAvorkmanlike manner.” We see no error in this.

The contract provides, “ ISTo extra Avork to be paid for unless the price has been fixed by the parties, the work named, and the agreement made at the time the extra work is done.” The finding is, “ That no price Avas fixed nor agreement made by the parties at the time said extra work Avas done, either before or afterward.” Upon this finding, plaintiff was not entitled, in this action, to any judgment for extra Avork.

The judgment is reversed, and the cause is remanded to the Superior Court of the City and County of San Francisco, with instructions to render judgment for defendants Bruntsch and the German Savings and Loan Society, and for their costs.

Sharpstein, J., and Thornton, J., concurred.