Stowell v. Waddingham

Temple, C. This case resembles Miller v. Wadding-ham, 91 Cal. 377. In fact the building contract is the same in both cases. Clubine contracted with the defendant, Newman, to build certain houses, six upon land he had contracted to purchase from Miller, and six on the land purchased from plaintiff. The buildings were alike, and all were building at the same time.

Clubine had a contract with plaintiff to purchase from plaintiff about twenty acres of land in the town of Ontario. He was not given possession under the contract, except that he was authorized to divide the land into [8]blocks and lots. He might sell lots at not less than a fixed price, and plaintiff would make the deeds and receive the purchase money. The contract price for the land was eighteen thousand five hundred dollars, and the plaintiff testified that he had received of this about five thousand dollars.

Clubine failed to make the payments agreed upon, and asked for an extension of time, and promised to have some buildings erected upon the land, and thereupon the time was extended.

The contract price for the buildings to be erected by Newman upon the land purchased from Stowell was four thousand one hundred dollars, payable in weekly installments. Newman furnished all materials, and did all the work. After the houses had all been commenced, and were from one-eighth to one-fourth completed, Clubine failed to maxe payments, and informed Newman that he could make no more. Seven hundred dollars only had been paid. It was then agreed'between Clubine and Newman that Newman should finish the buildings, and that he should own them unless they were paid for. Under this arrangement the houses were all completed by Newman.

Plaintiff testified that he knew nothing of this arrangement between Newman and Clubine; that he did not object to the construction of the houses, but was anxious to have them built. It does not appear that Newman was aware of the understanding between Clubine and the plaintiff. The houses rested upon mud-sills placed upon the surface of the ground, and plaintiff testified that upon their removal the land was left substantially as it was before their erection.

Newman, after the completion of his contract, filed a claim for a mechanic’s and material-man’s lien upon the houses, but afterwards, as they were not paid for, sold them to the defendant, Waddingham, who com-' menced their removal on Saturday night, and worked with a body of men all night and all day Sunday.