Covell v. Washburn

Vanclief, C. The action is to recover the reasonable value of labor done and materials furnished by plaintiff, at defendant’s request, in the building of a house for defendant, alleged to be $2,500, of which $560 are admitted to have been paid, and judgment is demanded for the balance, — $1,940.

The plaintiff recovered judgment for the sum of $423.15, with costs, but appeals from the judgment, on the judgment roll, and claims that upon the facts found by the court he is entitled to judgment for an additional sum of $187.15.

The findings show that there was a written contract between the parties for the building of the house by the plaintiff for the price of $3,250, but that the contract did not comply with sections 1183 and 1184 of the Code of Civil Procedure, and was never filed in the office of the county recorder; that plaintiff began the erection of the building and the furnishing of the materials therefor according to the terms of the void written contract, with the knowledge and consent and at the request of defendant, and continued the work during a period of about four and a half months, and then ceased to work before the building was completed, and thereafter did no more work and furnished no more materials; that the labor performed and materials furnished by plaintiff were rea[562]son ably worth $2,193.50, of which $560 had been, paid; that two persons from whom plaintiff had purchased lumber and materials on credit filed liens on the building for the price of such lumber and materials, amounting to about $1,070, and thereafter commenced actions against plaintiff and defendant herein to foreclose their liens. A decree of foreclosure was rendered for the full sums for which the liens had been filed, and in addition thereto, for $175 allowed by the court for attorney’s fees in the foreclosure suits, and $12.15 costs. To discharge his house from the liens, the defendant herein paid all these sums, and the court allowed them as offsets against plaintiff’s demand in this action. The plaintiff herein having heen a party to the suit in which the liens were foreclosed, the validity of the foreclosure decree is not questioned; nor is it questioned that the defendant herein was entitled to set off the amount of the principal and interest, adjudged to be due the lien-holders in the foreclosure suits, which he had paid; but it is contended that he was not entitled to set off the attorney’s fees and costs allowed in the foreclosure suits, — not because they were improperly allowed in those suits, but because he should have paid the debts to secure which the liens had been filed, without suit, and thus have saved the expenses and- costs of those suits.