Schlinkman v. Davis

VAN DYKE, P. J. Plaintiff-respondent, a licensed building contractor, brought action to foreclose a construction lien upon the property of defendants-appellants Davis.

The complaint alleged that plaintiff had constructed a dwelling upon the property of defendants under their promise to pay the reasonable value of the labor and materials used; that the total cost of the building was $37,739.61; and that $26,436.76 had been paid. Plaintiff sought to foreclose a lien for the difference.

The answer of defendants denied in general terms the foregoing allegations and affirmatively alleged that there had been an agreement between the parties that the house should be constructed for a maximum of $25,000. Defendants alleged they had paid more than that sum and were not indebted to plaintiff further.

It appears without dispute that the parties had entered into a written agreement covering the construction of the building by plaintiff and that the agreement read as follows:

“We propose to furnish all materials and perform all labor necessary to complete the following:

“Construct home at 2458 Manzanita Street, Eureka, California, as per plans. Any changes shall be authorized by owner. Carpenter labor at $4.50 per hour based on current scale. Sub-contracts and materials at cost plus 10%.

“All the work to be completed in a substantial and workmanlike manner for the sum of approx, and not to exceed $30,081 56/100ths Dollars, payments to be made semi-monthly as the work progresses; the entire amount to be paid within 30 days after completion.

/s/ Herb Schlinkman “Acceptance

“You are hereby authorized to furnish the material and

labor necessary to complete the above for which_agree

to pay according to the above mentioned proposal.

/s/ J. W. Davis_

Owner ’ ’

The foregoing contract is the familiar cost plus contract with a maximum.

Notwithstanding the parties were thus mutually bound by the written contract, the trial court found the allegations of plaintiff’s complaint to be true in that the parties had agreed that defendants should pay the reasonable value of all work [605]