Donnelly v. Adams

Henshaw, J. These are cross-appeals by plaintiff and defendant. The action was by the assignor of an original contractor to foreclose a lien under a building contract. The court adjudged plaintiff to have a lien, and decreed foreclosure thereof.

Defendants’ claim that the contract between the parties is void first invites attention. The contract provided that the contractor should furnish the necessary labor and materials to erect a certain building “and other works shown and described in and by and in conformity with the plans, drawings, and specifications for the same, made by B. B. Henriksen, the authorized architect employed by the owner, and whiph are signed by the parties hereto, and are to be kept and remain in the office of said architect, subject to the inspection of the parties hereto and others concerned in said erection.”

What purported to be the plans and specifications were admitted in evidence over the objection of defendants. They were not signed by the parties to the contract.

In Worden v. Hammond, 37 Cal. 64, the contract was to build a barn “agreeable to the draft, plan, and explanation hereto annexed, marked A.” No plan or specifications were attached, but an unsigned paper was produced which plaintiffs testified contained the specifications referred to. The paper was admitted, and this coprt said: “The specifications are an essential part of the contract, and are as material as the price of the work or the terms of payment; for.the contract price was not to be paid until the barn was completed according to the specifications. It is not indispensable that the specifications be signed by the party to be charged, but it will be sufficient if they are referred to with certainty. But where the reference is false it cannot be helped out by oral evidence. Here the specifications were referred to as annexed to the contract, and when the plaintiffs were permitted to introduce in evidence, as the specifications referred to, a paper which they [131]admitted was never attached to the contract, if they did not thereby contradict the written contract, they added to its terms by oral evidence. The two instruments taken together, contain all the necessary terms of the contract; and if the written contract had contained a reference to the specifications in such a manner that their connection would be apparent upon their production, it would be regarded as a sufficient compliance with the statute; but this could not be established by parol evidence without a violation of the statute requiring the contract to be in writing and signed by the party to be charged thereby. (Boydell v. Drummond, 11 East, 157.)”