Scammon v. Denio

McFarland, J. This action was brought by appellant (plaintiff in the court below) to recover $1,348.10, the alleged balance due upon a written contract by which appellant was to build a house for respondent; and to enforce a mechanic’s lien against the house, and premises on which it was erected. The court gave judgment to appellant for $483.72 only, and without costs or attorney’s fee; and also gave judgment for respondent for all costs which accrued after the date of a certain offer to compromise hereinafter mentioned.

The judgment provides for the enforcement of the lien for the amount above stated.

Appellant appeals from that portion of the judgment which allows him only $483.72, and also from that portion of it which denies him costs and attorneys’ fees, and gives costs to respondent. The case was tried without a jury.

1. Appellant complains of the refusal of the court to consider evidence about certain extra work and materials which he claimed to have done and furnished dur[395]ing the construction of the house. But the court finds that the contract provides that claims for such extras should be submitted to arbitration, and that appellant made no request or offer to so submit them, and the finding is apparently correct.

The court finds that appellant neglected and refused, after notice, to furnish workmen and materials to finish the house, and that respondent was compelled to furnish, and did furnish, the same at an expense of $58.45, which sum the court allowed respondent. This ruling is assigned as error. The court finds that respondent was allowed to do this by the contract; and as the whole contract was introduced in evidence, although only a part of it is put • into the transcript, we see no error in the finding.

It does not appear that this expenditure comes within the arbitration clause of the contract, as contended by appellant.

We think, therefore, that the judgment of the court below as to amount found due should not be disturbed.

2. On the day of the trial of the action, which was the day on which it regularly came on to be heard, but before the trial had actually commenced, respondent served on appellant a notice in writing, offering to allow him to take judgment for the sum of five hundred dollars; and as appellant finally recovered a little less than five hundred dollars, the court refused to allow him any costs, and gave judgment to respondent for costs accruing after the date of the offer. This ruling was made in supposed pursuance of section 997 of the Code of Civil Procedure. But that section, after providing for such an offer of compromise, proceeds as follows: “If the plaintiff accept the offer, and give notice thereof within five days, he may file the offer, with proof of notice of acceptance, and the clerk must thereupon enter judgment accordingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in the evidence