Campbell v. Jung

NOURSE, P. J. This is an action to foreclose a mechanic’s lien for a balance of $6,477.89 allegedly due plaintiff, a general contractor, for the building on a cost plus basis of a store building and another small building on a lot owned by defendants at Fairfax, California. The court gave plaintiff judgment for $6,214.84, costs and foreclosure of lien and defendants appeal. They complain that the rejection of their contentions below, that they were overcharged (that not all amounts charged went into or were reasonably chargeable to the construction of the building), that the rear part of the store as built extended into an adjoining lot not owned by them and that the walls of the store did not form right angles, [590]is not supported by the evidence. They do not sufficiently comply with the rule that an appellant who complains of insufficient evidentiary support must point out the evidence involved and wherein it is insufficient (Sutro Heights Land Co. v. Merced Irr. Dist., 211 Cal. 670, 687 [296 P. 1088]; Metzenbaum v. Metzenbaum, 96 Cal.App.2d 197, 199 [214 P.2d 603]), but as the evidence is not very extensive we shall nevertheless review it insofar as appellants’ grievance relates to specific points.

The question of the alleged overcharging was originally excluded from the trial before the court as it was to be assigned to a referee. As to the other points it was conceded that the contract as to the construction of the store contained the provision: “It is understood that property lines and proper location of the building will be the responsibility of the owner.” Moreover the evidence showed without conflict that defendants, when the building was started, were in possession of several conflicting survey maps, which they did not show to plaintiff or his personnel notwithstanding a request for maps, and that defendant Harry Pong told them that an existing adjacent building overlapped somewhat on his premises, but that he wished the sidewall of his new building to be built (gunnited) against the sidewall of the neighbor, whose permission for such gunniting he said he had obtained. Harry Pong testified that he had also given directions to build the sidewall at right angles to the sidewalk line and also to line the sidewall from a survey stake at the back end of the lot indicating the property line with the adjacent property. There was surveyor’s evidence that the existing wall against which the new sidewall was to be gunnited did not follow the property line but to the rear deviated into the neighbor’s premises, and that the front angle of defendants’ lot at the side of said neighbor’s building was not 90 degrees but somewhat less than 89 degrees. Therefore both the direction to build against the existing wall of the neighbor and to build at a 90-degree angle to the sidewalk would cause defendants’ wall to overlap on the adjacent premises. The evidence of plaintiff and his personnel was that the only direction received was to gunnite the sidewall against the existing sidewall of the adjacent building, that this was done; that the gunnited wall, which because of the greater depth planned for the new building had to extend to the rear beyond the adjacent sidewall, was there extended in the same general direction as given to the front part of the existing wall so that