Walsh v. Nelson

Mr. Justice Burnett delivered the opinion of the court. 1. The legal principles involved in this suit are settled by the case of Edmunds v. Welling, 57 Or. 103 (110 Pac. 533). In the opinion of Justice Eakin it is there stated: “The rule is that the work must be done substantially according to contract to entitle the contractor to a lien, but if an effort in good faith has been made to comply with the contract, and it is substantially though not fully complied with, the contractor is entitled to a lien for the contract price less such deductions as should b.e made on account of the defects and omissions in doing the work.” 2. The plaintiff, being an original contractor, was entitled to file its lien within 60 days after the completion of the work. The dispute on this branch of the case is whether the work was completed on November 9th or November 12th; the plaintiff contending for the latter date. Those who testified at the hearing are not in accord with each other on this subject, but we think the preponderance is in favor of the contention of the plaintiff whose witnesses are strengthened in their recollection by the produciton of a time check then given for labor performed in finishing up the work on November 12, 1910. We think the notice of lien was filed in time. 3. From the floor plans in evidence we observe that the resort in question consisted of a long room, on one side [88] of which was an ordinary bar counter, lunch counter, telephone booths, writing rooms, and office. On the other side was a storeroom and seven booths, in which were installed settees, besides a toilet room in the rear, with the ordinary conveniences to be found in such a place. At the divisional points between these booths are large pillars. One of the principal contentions between the parties is whether the border of the tiling should be run around these pillars and back into the booths, or whether it should continue in a straight line, in the main part of the room, in front of the booths and pillars. It is conceded in the testimony that the contract was signed June 6th, and that the detail sheet, which defendant contends shows the agreed plan for the tiling, did not arrive from Chicago until some time in July. The weight of the testimony convinces us that the contract entered into was made with reference to a blue print, upon which the tiling is indicated by red marks only in the main room, without reference to the booths. When the work of laying the border commenced, a dispute arose as to the plan by which it should be laid, and it was finally adjusted so that it was laid around the pillars already mentioned, but not back into the booths. We think that the charge for this extra work in the sum of $114.73 is a proper charge, and results from the adjustment thus made by the parties as the work progressed. The charge of $5.88 for overtime labor is conceded by the defendant. Another dispute between the parties arises concerning the tiled wainscoting on each side of the stairway. The plaintiff contends for extra material and express charges and the like concerning that, amounting to $45.30. The contract reads that this should be “of suitable height to follow clear to the head of the stairway.” The plaintiff’s witnesses testified that it was calculated originally at four feet in height, while the defendant says that it was to be of suitable height to correspond with the rest of the [89] wainscoting in the room, which was four feet six inches. This circumstance is of such importance that we think the weight of the testimony is in favor of the defendant on that issue. The charge of $45.30 for that work should not be allowed to the plaintiff.' As the work progressed, it was agreed that the wire lath should be omitted from the main floor, and that the defendant should receive credit for that material. This has been allowed by the plaintiff in his complaint as 201 square yards of metal lath for floor at 17 cents, amounting to $34.17. The defendant now maintains that this was the cause of a crack in the floor which mars the beauty of the work. The testimony is to the effect that a crack in the floor may be caused by various things such as the uneven shrinking of the woodwork or settlement of the foundation, and instances are given by witnesses where a tile floor laid upon metal lath cracks like any other, so that we think it is not shown by a preponderance of the testimony that the crack in the floor occurred on account of any shortcoming of the plaintiff. As to the matter of the wall border in the toilet room being installed upside down, the testimony is to the effect that this was observed during the progress of the work, and, although .the workmen offered to take it down and install it right side up, the defendant expressed his satisfaction with it as it was, and ordered the work to continue in that way. We think that, on the whole, the contract has been substantially complied with to the practical completion of the work. No detailed specifications were prepared beyond those in the writing already quoted and the floor plans, which were used as the work progressed. These particulars seem to have been left to the will of the parties as they proceeded with the undertaking. The conclusion depends almost entirely upon questions of fact. Without further rehearsal of the testimony, we [90] find that the account should be thus stated: The defendant should be charged with: Contract price . $1,680.00 Extra work and material on tiling border. 114.73 Work overtime . 5.88 Attorney’s fees adjudged by circuit court. 25.00 Filing notice of lien. 1.00 Amount .....$1,826.61 He should be credited with: Cash payments ....$1,485.88 201 square yards metal lath at 17 cts. 34.17 Damage allowed by circuit court and not appealed from... 25.00 Total...$1,545.05 1,545.05 Net balance. $ 281.56 —for which a decree of foreclosure in favor of plaintiff should be here entered, together with the costs and disbursements of the court below, but allowing the defendant the costs and disbursements of this court. The decree will be modified accordingly. Modified.