Webb v. Serabian

SHINN, P. J. Defendant appeals from a judgment in favor of plaintiff in the sum of $2,416. The complaint set forth three separate causes of action of this amount on quantum meruit, account stated, and open account. Defendant’s “answer and counterclaim” alleged that on February 10, 1947, plaintiff orally agreed to remove a two store wooden building from one location to another on defendant’s premises; and that after the building had been moved plaintiff orally agreed to partition and remodel the building into four stores. It was further alleged that the total contract price for both agreements was $5,500, that defendant had paid to plaintiff on account of said contract price the sum of $2,972.03 and had paid $2,171.98 to subcontractors for materials and labor furnished, and that defendant owed plaintiff only $355.99 which amount defendant offered to pay. Upon demand by defendant a bill of particulars was provided by the plaintiff. It set forth, first, certain “items paid by John Serabian” for electrical work, plumbing, glass, painting and cement work in varying amounts totaling $2,350. Secondly, it listed some 18 “items paid by J. W. Webb, for materials and labor totaling $3,098.73. Pursuant to a statement in the bill of particulars that “this repair job was undertaken by plaintiff, J. W. Webb, by oral contract on the basis of cost plus fifteen (15%) per cent,” 15 per cent of the foregoing totals was added to the total of the items paid by J. W. Webb, making a “grand total” of $3,916. Payment of $1,500 to plaintiff in three equal payments on March 15th, April 1st, and April 21st, was credited upon the grand total, resulting in an alleged “balance due” plaintiff of $2,416.03.

The court found that plaintiff orally agreed to move defendant’s building and convert it into four stores and that defendant orally agreed to pay the cost of all materials and labor, and in addition thereto, 15 per cent of such cost; defendant had paid $2,972.03 to plaintiff, and $2,171.98 to various third persons, for labor and materials furnished; and plaintiff had furnished defendant with labor, materials, and contractor’s services in the amount of $2,416 over and above any payments, [644]setoffs, claims or credits belonging or available to defendant. Judgment was thereupon rendered in favor of plaintiff for $2,416.

Upon the appeal defendant contends that the findings as to payments made by him are inconsistent with the finding that $2,416 is still due and owing to plaintiff, that the evidence does not support the findings, and that the court committed error in the admission of certain evidence. The claims of error are nebulous and unfounded. No grounds for reversal appear.