Curtiss v. Mcgowan

JONES, J. pro tem. This is an action to recover a balance on a builder’s contract. On October 21, 1947, the appellants' entered into a contract with the respondent to build a house on a lot which they owned in Millbrae Highlands Terrace in San Mateo County. The lot cost $3,000 and the price of the house is fixed by the contract at $16,435. Landscaping [437]and sidewalks are not included in the contract and are expressly excluded therefrom. Work was commenced on October 21, 1947, and completed on June 30, 1948. On July 3, 1948, the owners took possession of the premises, changed the locks on the doors, and deposited in the San Francisco Bank for the account of plaintiff the unpaid balance of the contract price less $1,100. In the meantime plaintiff had recorded a lien against the property for $6,400. This was the balance due before the deposit was made. This action was then instituted to foreclose the lien. Appellants answered denying that the contract had been fully performed and counterclaimed for damages in the amount of $1,100, the amount withheld. Before the case went to trial plaintiff accepted the deposit made for his account, and the case proceeded upon the theory that the contract had been performed except in the particulars alleged in the counterclaim. (See Thomas Haverty Co. v. Jones, 185 Cal. 285 [197 P. 105].) The trial court denied damages to the defendants on their counterclaim and from the judgment entered against them they prosecute this appeal.

Eleven particulars are alleged in' which it is contended the contractor failed to complete his work, viz. s “1. Sliding doors were not installed in dining room; 2. Shoe racks were left out of closets; 3. Fill was omitted at entrance porch; 4. Lot was not graded properly at outside walls of house; 5. Cement troughs for leader drains were omitted; 6. Plans were not followed in regard to quality and size of lumber; 7. Defendants were prevented from selecting finish hardware; 8. Defendants were prevented from selecting’ shower doors; 9. Roof was not constructed according to plans; 10. Walk was not constructed according to plans; 11. No mirror was installed in Bath No. 2.’'

It is further alleged that the contractor refused to correct the claimed deficiencies and that the reasonable value of making' the corrections and completing the contract amounts to $1,100. The court below found that the sliding doors in the dining room were omitted at the request and direction of the defendants; that the defendants prevented the contractor from supplying the mirror in bathroom No. 2, the shoe racks in the closets, and installing the cement leader drains; and that as to all other matters mentioned in the counterclaim the plaintiff fully complied with the terms of the contract.