Chavez v. Sedillo

• Decision Date: 03 May 1955
• Docket Number: No. 5917,5917
• Citation: 284 P.2d 1026,59 N.M. 357,1955 NMSC 39
• Parties: Arthur CHAVEZ, Plaintiff-Appellant, v. Dan R. SEDILLO, also known as Dan Sedillo, being one and the same person, and Emelia Sedillo, wife of said Dan Sedillo; Realty Mortgage and Investment Company, a corporation; The Western and Southern Life Insurance Company, a corporation, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 1026

284 P.2d 1026

59 N.M. 357

Arthur CHAVEZ, Plaintiff-Appellant, v. Dan R. SEDILLO, also known as Dan Sedillo, being one and the same person, and Emelia Sedillo, wife of said Dan Sedillo Realty Mortgage and Investment Company, a corporation; The Western and Southern Life Insurance Company, a corporation Defendants-Appellees.

No. 5917.

Supreme Court of New Mexico.

May 3, 1955.

On Motion for Rehearing June 9, 1955.

Rehearing Denied June 19, 1955.

Manuel A. Sanchez, Santa Fe, for appellant.

Harry L. Bigbee, Donnan Stephenson, Santa Fe, for appellees.

McGHEE, Justice.

The lower court gave judgment for the defendants on the pleadings in this action to foreclose a mechanic's lien upon the ground a fatal variance existed between the allegations of the plaintiff's pleadings and the claim of lien upon which he relied. The plaintiff appeals.

The order granting motion for judgment on the pleadings did not specify the nature of the fatal variance, but it appears from the briefs of counsel here that argument was made to the lower court respecting variance between the statement in the claim of lien as to the terms, time given and conditions of the contract under which the labor and materials were supplied, required to be set forth in the claim of lien under Sec. 61-2-6, 1953 Comp., and those matters as alleged in the complaint and answer to counter-claim of defendants.

Section 61-2-6, 1953 Comp., provides:

'Every original contractor, within one hundred and twenty (120) days after the completion of his contract, and every person, save the original contractor, claiming the benefit of this article must within ninety (90) days after the completion of any building, improvement, or structure, or after the completion of the alteration or repair thereof, or the performance of any labor in a mining claim, file for record with the county clerk of the county in which such property or some part thereof is situated, a claim containing a statement of his demands, after deducting all just credits and off-sets, with the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed, or to whom he furnished the materials, with a statement of the terms, time given and the conditions of his contract, and also a description of the property to be charged with the lien, sufficient for identification, which claim must be verified by the oath of himself or of some other person.' (Emphasis supplied.)

To determine whether a fatal variance does exist it is necessary to examine in some detail the claim of lien and the pleadings of the plaintiff.

Omitting portions of the lien claim regarding the designation of persons and description of the land, it reads as follows:

'That the lien claimant herein, Arthur Chavez, pursuant to agreement, furnished materials and labor in the construction of a residence on the premises hereinbefore described, during the period October 13, 1950, to January 27, 1951. A statement of the cost of the materials furnished, the cost of the labor furnished and the credits thereon for amounts paid by said Dan R. Sedillo and Emilia Sedillo, is as follows:

'Total for labor and materials furnished $18,102.60

* * *

* * *

(Here follows itemized credits)

'Total Credits $16,600.00

'Balance $1,502.60

* * *

* * *

'That said work was performed under a contract which provided that claimant was to be paid for said labor and materials upon completion of claimant's work, and that his work terminated on Jan. 27, 1951, and that said labor was performed upon said residence or building constructed by claimant on the premises hereinbefore described.

* * *

* * *

'That on March 2, 1951, the lien claimant herein and said Dan R. Sedillo and Emilia Sedillo, his wife, agreed that the amount owing claimant for said labor and materials furnished in the construction of said residence by lien claimant was $1502.60.

'That the amount for which this lien is claimed is the sum of $1502.60 and that said sum is owing the claimant for said labor and materials after deducting all offsets and credits. * * *' In resume, this claim asserts: (1) Materials and labor in the construction of a residence for the defendants Sedillo were furnished pursuant to agreement. (2) The total cost of materials and labor so furnished was $18,102.60 and the balance still owing is $1,502.60. (3) The work was performed under a contract providing claimant was to be paid for labor and materials at completion of his work. (4) On March 2, 1951 (a date after completion of the work), claimant and defendants Sedillo agreed the amount owing claimant for labor and materials furnished was $1,502.60.

The allegations of the complaint setting forth the agreement under which the work was done and the arrangement for payment read as follows:

'5. That on the 13th day of October, 1950, a building contract was entered into by plaintiff on the one part and said defendants Dan R. Sedillo and Emelia Sedillo on the other part, which said contract provided for the construction and erection of a residence and garage on said real estate hereinbefore described by plaintiff, the plaintiff to construct said residence and garage and furnish all labor and materials necessary therefor, the said defendants to pay the plaintiff all cost of said labor and materials and an additional sum of 10% of the cost of said labor and materials, but which 10% was not to exceed the sum of $1500.00. Copy of said contract is hereto attached, marked Exhibit 'A' for identification, and is incorporated by reference herein the same as though said contract were set forth in full herein.

'6. That pursuant to said contract, plaintiff did furnish materials and did work and labor on said building and garage and did fully and completely perform said contract with its terms; that plaintiff, in addition to said contract and at the special instance and request of said defendants Dan R. Sedillo and Emelia Sedillo, furnished additional materials and labor for the erection, construction and completion of said building as requested by said defendants from time to time. That plaintiff furnished defendants a full and complete statement of the bills for said labor and materials during the progress of the work, construction and completion of said building. That all of the furnishing of said labor and materials and plaintiff's work was completed on or about January 27, 1951; that the total cost of labor and material furnished by plaintiff herein was the sum of $18,102.60; that said defendants paid on said sum the total sum of $16,600.00, leaving a balance due on March 2, 1951, in the sum of $1502.60; that on the 2nd day of March, 1951, said defendants and the plaintiff agreed that the amount owing plaintiff for said labor and materials furnished in the construction of said residence and garage was $1502.60, and said sum of $1502.60 became a stated account owing by said defendants to plaintiff on account of the construction of said building. Plaintiff attaches hereto copy of statement of account dated February 7, 1951, with an indicated balance of $1502.60, which was the agreed balance due on said contract on March 2, 1951, said copy being marked Exhibit 'B' for identification, and which is incorporated by reference herein as though set forth in full herein.'

The written contract set forth as Exhibit 'A' is brief and is quoted below:

'This agreement made and entered into, in triplicate, this 13 day of October, 1950, by and between Mr. and Mrs. Dan R. Sedillo, parties of the first part, and Arthur Chavez, party of the second part.

'Whereas, Parties of the first part are owners of the residence and garage to be built at East Coronado Road in Santa Fe, New Mexico, and

'Whereas, party of the second part, a licensed Contractor, engaged in building of homes within the State of New Mexico, is to build said home and garage,

'Now, whereas, in consideration of the mutual agreement hereinafter contained it is agreed as follows; that party of the second part agrees to build upon the hereinbefore described location a home as described by Mr. and Mrs. Dan R. Sedillo, parties of the first part, on the basis of ten per cent (10%) cost plus.

'Now, Therefore, a special agreement is hereby made whereby parties of the First part will pay the said ten per cent (10%) on a maximum cost, $15,000.00.

'Now, Therefore; in the event that the cost exceeds the sum of $15,000.00, it is also agreed that party of the second part will continue with the construction at actual cost, nothing less and nothing more, and parties of the first part agree to pay such cost to conclusion; including labor and materials necessary.

'Now, parties of the first part and party of the second part agree to the following terms of financing the construction.

'Parties of the first Part are to furnish an allowance of $_____ as agreed when this contract is signed. The balance will be furnished when requested by the party of the second part as may be needed during the progress of the work until the job is completed.'

Attached to the complaint as Exhibit 'B' was a financial statement of bills and payrolls, which reflected credits for sums paid by the defendants Sedillo. Among other handwritten items appearing on this statement is the following: 'Bal.--1502.60.'

In response to the answer and counterclaim of the defendants which admitted the execution of the contract, Exhibit 'A' set out above, admitted payment of the sum of $16,600 and refusal to pay the sum of $1,502.60, and set forth various affirmative and legal defenses, in addition, charging the construction work was improperly done and that defective materials were used in violation of the contract to the damage to defendants of the sum of $7,500, the plaintiff admitted that the sum sued for in the complaint included charges made by him for wages claimed to be due for carpenter work. He...