McMenomy v. White
Before: Belcher
Synopsis
Findings—Agreed Statement of Facts—Sufficiency of Evidence.— Where a case is submitted to the trial court upon an agreed statement of facts, no findings are necessary, the only question being as to what is the law applicable to the facts; and where findings are made in such a case, an objection that they are not justified by the evidence cannot be sustained.
Mechanic’s Lien—Record of Contract—Failure to File Plans and Specifications—Rights of Laborers and Materialmen—Liability of Owner and Contractor.—Where a building contract is fora price exceeding one thousand dollars, and requires the building to be constructed in conformity with the plans and specifications prepared by the architects, the failure to file the plans and specifications for record render the contract void, and, in such case, the labor done and materials furnished are deemed to have been at the instance of the owner, and a lien may be had for the value thereof, but the owner is not personally liable therefor, though the contract be void, the only remedy against him being for the foreclosure of the liens, while the contractor is personally liable for labor done and materials furnished at his instance, and personal judgment may be entered against him as a party defendant in actions to foreclose the liens.
Id.—Invalid Contract—Validity of Bond of Contractor—Guaranty against Liens—Liability of Sureties.—A bond given by a contractor to the owner of a building, the contract price of which exceeds one thousand dollars, guaranteeing the performance of all the conditions of the contract, and that the building to be constructed by the contractor shall be delivered to the owner free from all liens for labor done and materials furnished by the contractor, is valid and ■ binding upon the sureties, although the contract itself is void, because of a failure to file the plans and specifications with the county recorder.
Belcher, C. This case was submitted to the court below upon an agreed statement of facts. From this statement it appears that on the twentieth day of June, 1890, plaintiff and one L. C. Judkins entered into a written contract, by the terms of which Judkins agreed to construct for plaintiff, and to furnish all the materials and labor therefor, a frame dwelling-house in conformity with the plans and specifications for the same prepared by certain architects, and to deliver the house to plaintiff, free from all liens and charges, within one hundred working days from the date of the contract. The contract price for the work was four thousand eight hundred and fifty-eight dollars, of which sum seventy-five per cent, was to be paid in installments as the work progressed, and the remaining twenty-five per cent was to be paid thirty-five days after the final completion of the work.
On the day the said contract was executed there was written on the back thereof and signed by the defendants a bond or contract of guaranty which reads as follows:
“bond.
“Know all men by these presents: that we, the undersigned, in consideration of value by us and each of us received, have, and we do hereby jointly and severally become sureties and guarantors for the full and faithful performance on the part of L. C. Judkins, the contractor, of all the terms and conditions of the foregoing contract to be by him performed, and we do hereby jointly and severally guarantee the faithful performance of the above contract, and the delivery of the building therein described and contracted for, free from all liens that may be filed on account of any claim against the con[342]tractor in the above contract, not exceeding the sum of four thousand eight hundred and fifty-eight ($4,858) dollars. •
“Witness our hands and seals, this-day of June, 1890.”
After these papers had been signed, Judkins committed the matter of filing the contract in the office of the county recorder of the county where the property was situated to the plaintiff, and he filed the contract, but the plans and specifications were never attached to the contract and were never filed.
Judkins proceeded to construct the house, but it was not delivered to or accepted by the plaintiff until February 19, 1891, the reason for such failure of delivery and acceptance being that the same was not finished.
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