Brand v. Riemer

BARNARD, P. J. This is an action to foreclose a mechanic’s lien for materials and labor furnished and performed.

The parties entered into a written contract for certain work for a price of $2,746.92. By a verbal agreement, other work of the value of $256.44 was performed. The work consisted of building the walls of a house, partly from concrete and partly with concrete blocks, certain concrete steps and a small amount of other concrete work. During the course of construction the forms were allowed to slip with the result that two of the walls were out of plumb as much as 3 or 4 inches in places, with rough and uneven surfaces; the steps were irregular and uneven with risers of varying height; other concrete work was defective; and on the front of the house there was a curve in the top surface of the foundation leaving an unsightly line, curving up to 2% inches, between the foundation and the upper concrete blocks. The plaintiff recognized the deficiency in his work and attempted by several expedients to remedy the same, with results that were far from satisfactory. In completing the house for their home the defendants were compelled to, and ■ did, spend considerable money in attempting to correct the situation caused by the manner in which the plaintiff’s work was done. They refused to pay the final payment called for by the contract, and the plaintiff brought this action to recover a balance of $1,168.42 and to foreclose his lien. The defendants answered alleging that they had been forced to expend $1,365 through the failure of the plaintiff to properly perform his agreement, and later filed a cross-complaint seeking to recover $2,000 on that ground.

[877]Among other things, the court found that the work was performed by the plaintiff in a careless and reckless manner and not in accordance with good building practices; that he had failed to comply with the terms of the contract; that the work was done in so unworkmanlike a manner that the walls were out of alignment, off square and out of plumb; that the cement floors were irregular, uneven and with improper openings; that the concrete steps were uneven, irregular and not in accordance with the plans; and that by reason of the unworkmanlike manner in which the work was performed the dwelling presents an unsightly appearance. It was then found that if the work had been done in a workmanlike manner the plaintiff would have been entitled to a balance of $1,168.38, and that by reason of the unworkmanlike manner in which the work was performed the defendants were compelled to incur extra expenses in the sum of $943.38 in order to correct and eliminate said defects and unsightly appearance. Judgment was entered in favor of the plaintiff for $225, the difference between these two amounts, and for foreclosure of his lien. From this judgment the plaintiff has appealed.