Dwight v. Leonard

STONE, J. pro tem.* This is an appeal from a judgment foreclosing a mechanic’s lien. Kenneth Burgess, a licensed contractor, owned a parcel of real property in Santa Clara County. He and the plaintiff-respondent formed a partnership to build a house on the property. Respondent had no contractor’s license then or at any time pertinent to this action. During the course of construction, the partnership was dissolved and Burgess conveyed to respondent the real property on which the house was being erected. Respondent continued with the construction work and when the house was “framed completely” with wiring and plumbing installed, he and his wife entered into a contract to sell the property to the appellant for the sum of $32,500. The house was to be completed and the property conveyed to appellant free and clear of encumbrances except for a first lien securing a note for the sum of $15,000 which the purchaser was to assume. The balance of the purchase price was to be paid and the conveyance made within 60 days.

The contract contained the following clause, “agreement to be written to meet buyer and seller’s approval as to changes to be made to said property. A set of blue prints of the dwelling on said property to be furnished by the seller.” The parties failed to execute any change-order agreement as provided by the contract of sale but deviations from the blue prints were made from time to time during construction.

On August 23, 1953, respondent as owner filed a notice of completion and on August 31, 1953, conveyed the property to appellant. Respondent subsequently made a demand upon [201]appellant for the sum of $1,565.14 for extras. Appellant denied his claim and respondent filed a mechanic’s lien which resulted in this action. Appellant answered, denying the claim and cross-complained alleging overpayment and damages resulting from the use of defective materials. Although appellant’s principal defense to the action was that respondent had no contractor’s license, that issue was not raised as to the $32,500 contract sale price and this appeal is concerned only with the “extras” for which respondent sought payment and appellant’s allegations of overpayment and damages resulting from the installation of defective materials.

The trial court found that respondent was not acting as a contractor. It also found that at the special instance and request of the appellant and upon her promise to pay the reasonable value thereof, respondent furnished labor and materials for the alteration of and addition to structural features and landscaping of appellant’s house. The court further found that the reasonable value of the materials and labor used in making said improvements was $1,565.24 which amount has not been paid. The trial court also found that appellant was entitled to damages in the amount of $175 because of a defective beam which had been placed in the living room and entered a judgment in favor of respondent for the difference of $1,390.14.