Ostberg v. Thatro

VALLÉE, J. Appeal by plaintiff, a general contractor, from a judgment in his favor foreclosing a mechanic’s lien and awarding him $1,757.07. He claims the judgment is [625]erroneous in two particulars: (1) it does not award him the full amount to which he is entitled under the contract; (2) an award to defendants of $500 on their cross-complaint for defective paint work is not supported by the evidence.

On June 23, 1948, plaintiff and defendants entered into a written contract for the construction of a residence by plaintiff for defendants on a “cost plus fixed fee” basis. On the same day they executed a written agreement with Joint Control, Inc., a building fund disbursing agency. Pursuant to the latter agreement, defendants deposited with Joint Control sums of money totaling in excess of $29,000 to be used for the purpose of paying the cost of construction of defendants’ residence and to be paid out by Joint Control, Inc., on the order of plaintiff, subject to the control of the disbursing agency.

It was the practice of plaintiff to pay his laborers and thereafter, from time to time, file a written request for reimbursement with Joint Control. The request was made in each instance on a form furnished by Joint Control, denominated “Release of Labor Liens.” Bach of the forms was signed by plaintiff and the laborers who had been paid by him for a particular period preceding the date it was submitted to Joint Control. The releases contained the following provision:

“For the purpose of obtaining payments for the above items, the undersigned contractor-employer hereby certifies and warrants that the above-named laborers and mechanics actually performed work and labor at the times and upon the job hereinbefore set forth and that they have actually been paid by him. The undersigned further certifies and warrants that the above is a full and complete list of all laborers and mechanics that performed work and/or labor for him upon the job.”

Plaintiff filed approximately 17 requests on this form with Joint Control for reimbursement for labor, and received payment for the amounts claimed. The last request was filed on October 14, 1949.

Plaintiff had an audit made of his books and records showing expenditure by him of $37,254.46 in the construction of the residence. Joint Control paid plaintiff $29,395.91. Plaintiff claimed a balance due from defendants of $7,858.55 ($37,254.46 — $29,395.91) for labor and materials.