Dunlop v. Kennedy

The Court. This action was brought to enforce mechanics’ liens. Plaintiffs recovered judgment, and defendants, Alice Kennedy and John F. Kennedy, now appeal from the judgment, and from an order denying a new trial.

The contract was in writing, and in it Gray and Stover . contracted with Alice Kennedy, who is the wife of defendant John F. Kennedy, and was the reputed owner of the premises described, to construct a three-story dwelling-house, and to furnish materials for the same. The contract price was $6,600. It was provided that partial payments were to be made in amounts equal to seventy-five per cent of the value of the work done and materials furnished at the time of the payments. Provided, that when each installment became due a certificate should be obtained from the architect of the amount due; and it was made the duty of the architect at said times to deliver such certificate, or to state what defect [444]had to be remedied to entitle the contractor to it. If the architect failed to deliver the certificate, or give a reason for three days after demand, then the contractor should be entitled to the payment.

The contractors abandoned the work, when, as the trial court found, three-fourths of the work called for had been done. At that time the cost of the work performed and materials furnished was $6,941.86, a sum exceeding the full contract price. If this sum is only seventy-five per cent of what would be required to complete the contract, as the court found, it would be estimated at contract rates as worth $4,950, which would be the value of the work and materials which had then been furnished, estimated as directed in section 1200 of the Code of Civil Procedure. The court found that there had been paid on the contract only $3,000, which, deducted from the estimated value of the materials furnished and work performed, would leave $1,950 to be applied to the payment of liens. This would furnish ample means with which to pay the liens of plaintiffs in full, since other plaintiffs filed no liens.

But appellants claim that the evidence shows that there was more than $3,000 paid. That there was due defendant John F. Kennedy $1,000 for lumber furnished, and that it was agreed that the owner should have credit for that. The specification of the insufficiency of the evidence to sustain the finding, that only $3,000 had been paid, is, in effect, that the evidence shows that, considering the materials on hand, there was sufficient work done to warrant the payment of $4,000, when it was agreed that the owner was entitled to a credit for that sum. But this specification is not sufficient. It does not appear that there was a certificate of the architect to the effect that the contractors were entitled to the payment, nor does it appear that circumstances existed which would entitle the contractors to the payment without such certificate.