Justice v. Elwert

1, Appeal — Findings on Conflicting Evidence.— Findings'of the trial court on conflicting testimony will not be disturbed on appeal, unless they are clearly against the weight of evidence. 2. Mechanics’ Liens — Complete Performance Prevented by Owner— Waiver.— Failure of contractors to complete a building according to contract will not prevent a lien from attaching in their favor for so much of the work as was actually performed according to the contract, where such failure to complete was due to an act of the owner.

Appeal from Multnomah: Loyal B. Stearns, Judge. This is a suit to foreclose a mechanics’ lien. The lien is claimed by virtue of a contract entered into between plaintiffs, Justice Brothers, and the defendant J. B. Elwert, by which plaintiffs agreed to furnish the materials, and do certain painting, graining, and calcimining for Elwert, upon her buildings at Portland, Oregon, at the agreed price and consideration of two hundred and eighty-five dollars, to be paid thirty days after completion of the work. The work was to be done in accordance with certain specifications, “in a good, workmanlike, and substantial manner, to the satisfaction and under the direction of the said owner or superintendent, to be testified by a writing or certificate under the hand of the said contractor.” While engaged in the performance of this contract, plaintiffs claim that they furnished extra materials and did certain extra work for Elwert, at her instance, of the agreed value of one hundred and thirty-two dollars. The claim of lien was filed to secure these two sums, less sixteen dollars allowed as a credit. The defendant F. IS. Beach also seeks to foreclose a lien claimed upon the same property, to secure payment of the sum of one hundred and fifty-three dollars and seventy-six cents for paints, oils, and other materials furnished to Justice Brothers and which were used by them in and upon the buildings. The defendant’s Elwert’s defense to the Justice Brothers’ lien is that they have not performed the conditions of the contract as required by its stipulations, nor secured the certificate of the contractor or superintendent showing performance of the work to his satisfaction. She denies absolutely that Justice Brothers did any extra work at her instance or request, or that she ever agreed to pay them anything therefor. The plaintiffs do not claim to have fully performed the contract upon their part, but insist that the nonperformance was excused by the acts of defendant Elwert; that they completed the work under the contract, in the main, but that defendant forbade and prevented them from performing entirely. The defense against the Baach claim is confined to the legal question as to whether he is entitled to a lien unless it is established that Justice Brothers performed their contract. The court below, among other things, found that plaintiffs had completed their contract so far as they were permitted by Elwert; that she, without cause, refused to allow a full performance, and that plaintiffs were entitled to the sum of two hundred and fifty dollars for the materials furnished and work done under the contract; that plaintiffs furnished extra material and did extra work, at the request of Elwert, of the value of one hundred and seven dollars, which, with the contract obligation, amounted to three hundred and fifty-seven dollars, against which Elwert was entitled to a credit of eighty-six dollars and twenty cents, leaving a balance of two hundred and seventy-one dollars and eighty cents. The court further found that F. E. Beach furnished plaintiffs materials used in and upon said buildings of the value of one hundred and forty-nine dollars and sixteen cents, which being deducted from plaintiffs’ claim, leaves a balance of one hundred and twenty-two dollars and sixty-four cents bearing interest from November twentieth, eighteen hundred and ninety-three. As conclusions of law the court found that plaintiffs have a lien to secure the sum of one hundred and forty-eight dollars, and the defendant Beach a lien for one hundred and seventy-nine dollars and thirty-seven cents, which amounts include interest, attorneys’ fees, and costs of filing liens. Upon these findings a decree was entered, and defendant Elwert appeals.