Broderick v. Torresan

WARD, J. Appellants’ opening brief states that this is an appeal from a judgment in favor of plaintiff and against defendants foreclosing a mechanic’s lien on a building constructed for defendants in accordance with a contract and plans and specifications, allegedly signed by all of the interested parties, and “from the order denying defendants’ motion for a new trial.” The quoted portion is not supported by the notice of appeal and in any event the order is not appealable and will be disregarded.

The complaint, in addition to the ordinary language seeking foreclosure of a mechanic’s lien, sets forth that a written contract dated March 12, 1946, was entered into between plaintiff and defendants for the erection of a one-story building pursuant to plans and specifications filed with the county recorder for the agreed price of $10,860, payable in five equal installments. The fifth payment is alleged to be due 35 days after completion. Of the original contract price there remains [20]unpaid the sum of $1,344. It is also alleged that defendants, after the execution of the original contract, requested extras as set forth in the complaint, which required work, labor and materials amounting to the sum of $1,253.20.

Defendants denied that any extra work had been requested •and alleged that plaintiff failed to complete the building in accordance with the plans and specifications. In an amended cross-complaint they set forth eight particulars wherein plaintiff failed to live up to the contract and the plans and specifications. Defendants state the amount required to complete the building and claim damages in the sum of $5,000, which figure includes $3,350 general damages. Plaintiff denied the pertinent allegations of the amended cross-complaint.

The court found for the plaintiff and cross-defendant and gave judgment in the sum of $2,597.20, with legal interest from December 12, 1946, the date the money became due on the contract.

Defendants present six points as the basis for a reversal. Pour, listed as I, II, IV and V, are addressed to the sufficiency of the evidence to support the court’s findings. They are: I. Whether the contract and plans were signed by the parties. II. Whether the plans and specifications filed in the recorder’s office were substitutes. IV. Was plaintiff authorized to make changes and additions culminating in a bill for $1,418.42? V. Did defendants suffer detriment by plaintiff’s cutting down the rear of the building and putting a sun porch thereon ?