Chamberlain v. Hibbard

Opinion by Mr. Justice Moore. 1. The plaintiff in his claim of lien gives an itemized statement of the several amounts due under the original contract, and the amounts claimed to be due for the alleged extra work, and also the payments made thereon, except one of two hundred dollars, and by deducting the sum of the credits from the sum of the charges, seven hundred and two dollars and twenty-five cents is found to be due; but in his claim he demands only five hundred and two dollars and twenty-five cents, and from said omission it is — 432 — contended that the lien is invalid because it fails to contain a true statement of the plaintiff’s demand after deducting all just credits and offsets, as required by the statute: Hill’s Code, § 3673. It is not necessary that the claim filed with the county clerk should contain an itemized account of the demand: Ainslie v. Kohn, 16 Or. 363, 19 Pac. 97; Curtis v. Sestanovich, 26 Or. 107, 37 Pac. 67. When the amount demanded is correctly stated in the claim of lien, the items thereof become superfluous, and an error or omission therein ought not to vitiate the lien. The claim depends for its validity, among other things, upon a true statement of the demand; and had the plaintiff claimed five hundred and two dollars and twenty-five cents as the amount due him after deducting all just credits and offsets, without having given the items of the account, it is conceded that his notice of lien would have been invulnerable to attack. He has stated that this sum is so due him, and such general statement of his demand, showing that all just credits had in fact been given, having been made, his lien ought not to be defeated because in copying the items of his account he has inadvertently omitted a charge or credit to which either party might have been entitled. 2. The original contract provided that the defendant might make such alterations in the plans or specifications as he desired, and it was agreed that if any dispute arose respecting the true value of any alteration or work added or omitted, the same should be valued by two competent persons, one to be selected by each party, and if the persons so selected could not agree, they had authority to name an umpire, whose decision should be binding on all parties; and from this provision of the contract it is contended that no suit to foreclose said lien could be maintained until the plaintiff had attempted to ascertain the amount due in the manner therein provided. The plain — 433 — tiff did not set out a copy of said contract in his complaint, but brought his suit for the reasonable value of the extra work; and hence his complaint states a cause of suit, and is not within the rule announced in Ball v. Doud, 26 Or. 14, 37 Pac. 70. In the present case the defendant set out a copy of said contract in his answer, but he did not plead in abatement of the suit its provisions to settle by arbitration any dispute arising thereunder. The defendant’s right to have the alterations valued by arbitrators was one which he could waive, and by pleading to the merits he waived the matter in abatement: Winter v. Norton, 1 Or. 43; Hopwood v. Patterson, 2 Or. 49. 3. This brings us to a consideration of the claims of the respective parties. An examination of the evidence shows that plaintiff’s claim for cleaning the walls of said building, fifty dollars, should be disallowed. The specifications, which were made a part of the contract, require the plaintiff to “rub down all brickwork on street sides,” and while he used acids for that purpose we think the work comes within terms of the contract. 4. This is also true of the claim for changing four chimneys from common to pressed brick, twenty-eight dollars. "When the original contract was modified so as to require pressed brick for the walls of the building, it must necessarily have included the chimneys which are a part of these walls, and hence not extra. The plaintiff’s claim for building three extra pressed brick chimneys, seventy-five dollars, must be modified upon the testimony of his brother, who, when called as his witness, testified that the reasonable value of such work is only forty dollars. While there is quite a conflict of evidence, we think it shows that the other items of plaintiff’s claim are not embraced within the terms of the contract,- are reasonable, and should be allowed, thus making the amount due him — 434 — less the credit of one hundred and fifty dollars and seventy-five cents admitted to have been overpaid on the contract, three hundred and eighty-nine dollars and twenty-five cents. The defendant, in our judgment, is entitled to the following credits: By merchandise, twenty-two dollars; by order on the railroad company, nineteen dollars and seventy-five cents; by rebuilding stair walls, eight dollars; by thirty-six window sills, changed from pressed brick to stone, eighteen dollars; by amount paid for patching the plastering, forty-seven dollars; making a total of one hundred and fourteen dollars and seventy-five cents, and leaving two hundred and seventy-four dollars and fifty cents due the plaintiff without considering the defendant’s claims for damage. 5. The contract required the plaintiff to keep the brickwork straight and plumb; and the evidence shows that he did not comply with this requirement. The walls are not what they should be, but the defects in that respect were probably caused by building the extra story without materially strengthening the foundation, for which plaintiff cannot be held responsible. 6. The defendant’s claim for insurance, interest on money advanced, damages for delay in completing the building, and for failure to put cement in the mortar cannot be allowed. True, the specifications call for the use of cement in the mortar, but the contract provided that the brick should be laid in common mortar. 7. The most difficult question in the case arises out of the defendant’s claim of sixteen hundred and sixty-seven dollars as damages alleged to have been sustained by reason of defective plastering. The specifications, among others, contain the following provisions: “Plaster all walls and partitions, and second, third, and fourth-story ceilings, one good, heavy coat of brown mortar, consisting of three barrels of clean, sharp sand to each one of fresh — 435 — burnt Tacoma lime, and one bushel of soaked and well whipped cattle hair, all to be made up at least ten days before using. ” The evidence shows that the plaintiff in making said mortar mixed about six barrels of sand with one of lime, and did not use the requisite quantity of hair; that he allowed the mortar to remain after being mixed much longer than was necessary before using it; that it was put upon the walls in warm weather, and no means taken by the plaintiff, whose duty it was, to prevent it from drying too0 quickly, and that in consequence of his neglect and carelessness the plaster fell off in many places, and the defendant contends that it is of no value but a detriment to the building. The architect of the building, when called as a witness for the defendant, says the plastering is a detriment, and he is corroborated by the testimony of other witnesses. It appears, however, from the testimony of a number of plaintiff’s witnesses who have had years of experience in such work, that while the plastering does not correspond with the specifications it is an average job of that class of work. It is impossible from the evidence to say just to what extent the defendant has been damaged by the faulty plastering of his building. The measure of his damage would be the difference between the class of work he contracted for and that which was furnished. If the plastering were wholly valueless it would not be difficult to ascertain the measure of the damage; but having some value, it is almost impossible to determine from the evidence what sum should be awarded, the defendant for the plaintiff’s failure to fully comply with the terms of his contract. The court below awarded the defendant one dollar as his damages for this defect. We think this allowance too small, and in view of the fact that the plastering fell off the building in many places,, that much more of it is loose and liable to fall, and that, the terms of the contract in this respect were violated,, he — 436 — should be awarded tbe sum of two hundred and fifty dollars as damages therefor, thus allowing the plaintiff twenty-four dollars and fifty cents as the amount due him. 8. The court awarded the plaintiff ten dollars as attorney’s fees, and required him to pay one half of the costs, and this he contends was an abuse of discretion. It seems to us, in view of the evidence as to the careless and negligent manner in which plaintiff did the plastering, that the decree in this respect was equitable. The decree of the court below will be here modified to correspond with this opinion. Modified.