White v. Soto

Gibson, C. This is an appeal by defendants from an order denying them a new trial in an action prosecuted by plaintiff to foreclose a mechanic’s lien.

It appears from the findings that on August 23, 1882, J. M. Soto, the husband of Maria P. de Soto, entered into a contract in writing with White, by which the latter agreed to erect a dwelling-house of a certain kind and dimensions upon land owned by Maria P. de Soto, and furnish all the material and labor therefor, and complete and finish it on or before November 21, 1882; for which J. M. Soto agreed to pay him the sum of $2,850 in four several installments.

After White had commenced the erection of the building under the contract, he and J. M. Soto made a modification of the said contract, by verbal agreement, by which White agreed to enlarge the building in certain respects and furnish the necessary additional material and labor, and J. M. Soto to pay, in addition to the original contract price, whatever such additional material and labor should be reasonably worth, and that White should have such additional time, as he might require to complete the building.

White, pursuant to the written contract, as modified by the subsequent oral agreement, completed the dwelling-house on January 31, 1883, and on the same day he delivered the entire possession of it to Soto and his wife, who both, on the same date, moved into it, and thereafter continued to occupy it as their place of residence. [656]During the whole progress of building, the defendant, Mrs. Soto, was in and about the building and supervised plaintiff’s work, and made directions as to certain changes therein, and never in any way objected to the erection of the building. The reasonable worth of the additional work upon and material furnished for the building was $383, which, in addition to the original contract price, made all the work done and material furnished of the reasonable value of $3,233. Of this sum, and before suit was brought, J. M. Soto paid $2,880, leaving an unpaid remainder of $353. White filed his claim of lien, and commenced suit thereon within the statutory time. During the trial it was admitted that after the action was commenced J. M. Soto paid to White the sum of $253 of the amount sued for, and it was at the same time stipulated that the sum so paid should be deducted from whatever amount the court should find due, if any should be found due, and judgment for the remainder rendered and entered. Interest from the commencement of the suit was allowed on the one hundred dollars found due after all deductions; also, an attorney’s fee of one hundred dollars, and ten dollars for expenses incurred in securing the lien.