Consolidated Cut Stone Co. v. Seidenbach
| Decision Date | 07 December 1937 |
| Docket Number | 21661. |
| Citation | 75 P.2d 442,181 Okla. 578,1937 OK 701 |
| Parties | CONSOLIDATED CUT STONE CO. et al. v. SEIDENBACH et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 18, 1938.
Application for Leave to File Second Petition for Rehearing Denied Feb 1, 1938.
Syllabus by the Court.
1. In an appellate proceeding the Supreme Court does not have original jurisdiction to try and determine questions of fact and law new and different from those involved in the case when it was presented on appeal.
2. In a suit by a subcontractor to enforce a lien against the owner of the building, the owner may offset any actual damages which he has sustained, caused by the contractor's failure to complete the building in time, provided the damages are such as may be said to have been in the contemplation of the parties when the contract was made. J. B. Klein Iron & Foundry Co. v. A. B. Mays & Co., 76 Okl. 177, 184 P. 577.
3. Where one has suffered damages on account of the breach of another of a contractual right, the failure, on the part of the injured party, to make reasonable effort to reduce or minimize his damages will not entirely defeat a recovery; for the duty imposed upon one to reduce or minimize his damages goes only to the amount of recovery, and cannot be an absolute defense to an injury already sustained. The burden of proving that damages could have been reduced or minimized is on the party asserting it, and as to whether the injured party has performed the duty resting upon him, and, if not how much his damage was enhanced by his failure to do so, are questions of fact to be determined by a jury, or by the court in a trial without a jury.
4. Where a building contract provides that on default of the contractor, the owner, upon the certificate of the architect may, without prejudice to any other right or remedy terminate the employment of the contractor, and take possession of the premises and finish the work, the owner is entitled to damages for breach of the contract, notwithstanding he has completed the work upon default of the contractor; and the right of the owner to damages for breach of the contract is not waived by his failure to take charge of the building on default of the contractor.
5. An equitable estoppel requires a false representation or concealment of facts made with knowledge, actual or constructive, of the real facts to a party without knowledge or the means of knowledge of the real facts, with the intention that it should be acted upon by such party, and reliance or action thereon to his prejudice.
6. Where a building contract provides for the payment of liquidated damages in a certain sum for delay in the completion of a building, and by the terms of the contract such damages are to compensate for delay only, the breach of other terms, covenants, or conditions of the contract are not involved in the right to recover stipulated damages for delay.
7. Where the owner of a building has discharged a lien filed against his property by depositing with the court clerk the amount of the lien claim and executing a bond conditioned to pay attorney's fee, court costs, and interest, as provided by section 10980, O.S.1931, 42 Okl.St.Ann. § 147, such owner is liable for attorney's fee, court costs, and interest only in the event the claimant filing such lien recovers judgment on his claim in the amount for which such claim is filed.
8. Where a lien is established against the cash deposit made under section 10980, O.S.1931, 42 Okl.St.Ann. § 147, to discharge the owner's property from such lien, a withdrawal of such cash deposit by the owner before the lien claim is finally adjudicated is unauthorized.
9. Where, under a rental contract with a building contractor, a subcontractor furnishes, sets, and removes certain "pans and ends" to hold concrete in place in a building until it is set, such rental contract being entire and not separable, and such pans and ends not becoming a part of the building, but being removed by their owner to be used on other jobs, a lien does not attach in favor of the subcontractor for the rental use of the pans and ends and the labor in setting and removing them.
10. Where a subcontractor furnishes material, all going to the one general purpose of constructing a building, though such material be ordered at different times, or under separate contracts, yet if the several deliveries are so connected together as to show that the parties had in contemplation that the whole should form but one, and not distinct matters of settlement, the whole account may be considered as a unit, and a lien statement may be filed within the time limited after the last material was furnished.
11. Allowance and payment of a referee's fee before his duties are completed and his report made is premature.
12. In an action against the owner of a building to enforce subcontractors' liens, where it is shown that the owner made payments to the contractor, who in turn paid the money thus received to subcontractors, laborers, and artisans during the 60 days within which they otherwise would have been entitled to file liens, and the cost exceeds the contract price, the owner is entitled to credit for such payments to the extent of the pro rata amounts which the other subcontractors, etc., would have been entitled to if their liens had been filed.
Appeal from District Court, Tulsa County; Saul A. Yager, Judge.
Action by Ed M. Lightfoot and others against J. W. Wilson, J. L. Seidenbach, and others, to enforce materialmen's and subcontractors' liens. From judgment allowing such lien claims in part and disallowing same in part, lien claimants appealed.
Affirmed in part, and reversed in part and remanded, with directions.
Application for leave to file second petition for rehearing denied; BAYLESS, V. C.J., and WELCH, GIBSON, and HURST, JJ., dissenting.
C. A. Steele, W. A. Daugherty, H. A. Tallman, Aby & Tucker, Frank Settle, and Robinson & Jones, all of Tulsa, Shirk, Danner & Phelps, of Oklahoma City, and Font L. Allen, H. L. Smith, Humphrey & Campbell, Gerald F. O'Brien, Hagan & Gavin, and Yancey, Spillers & Fist, all of Tulsa, for plaintiffs in error.
Samuel A. Boorstin and M. A. Breckinridge, both of Tulsa, John H. Cantrell, of Oklahoma City, and Biddison, Campbell, Biddison & Cantrell, of Tulsa, for defendants in error.
Geo. S. Ramsey, Villard Martin, and Garrett Logan, all of Tulsa, amici curiæ.
This action arose out of the construction of a building in the city of Tulsa upon real estate belonging to J. L. Seidenbach, one of the defendants in error, and was instituted in the district court of Tulsa county, April 22, 1927, by Ed M. Lightfoot to foreclose a mechanic's lien he asserted against said property. Various lien claimants were parties to the suit, as was the general contractor, J. W. Wilson, and the lien claimants filed pleadings asserting their respective liens.
The contract between Seidenbach and Wilson for the construction of the building was made August 26, 1926, and it was specified therein that the owner would pay the contractor "in current funds for the performance of the contract, One Hundred Twenty-eight Thousand, One Hundred Forty-six ($128,146.00) Dollars subject to additions and deductions as provided in the general conditions of the contract." It was also specified in the contract that the building should be completed on or before the 15th day of January, 1927, and that, in the event it was not completed upon that date, the owner should be entitled to damages against the contractor in the sum of $125 per day for each day thereafter until the completion of the building. The time for completion was later extended until the 14th day of February, 1927. The contractor did not complete the building within the time contemplated, and on the 2d day of April, 1927, the owner took over the contract for the purpose of completing the building, and thereafter continued with construction work until the 15th day of September, 1927, when the building was completed.
All the lien claims involved in this action accrued during the time the general contractor was in charge of the work.
The owner, J. L. Seidenbach, in his answer and cross-petition, claimed offsets against the various liens for delay in completion of the building, for costs of completing the same, for additional managerial and supervisory help, for defective work, and for attorneys' fees. He further claimed that any liability that may have existed to lien claimants had been discharged by payments to the general contractor, which payments had been in turn paid to the lien claimants, and that with such payments and the deductions claimed there was no balance available for the payment of lien claims.
The cause was referred to Robert D. Hudson, as referee, for trial. Thereafter the referee made his report to the trial court. Exceptions filed by the various lien claimants were overruled, the referee's report was adopted, and judgment was rendered in accordance therewith. From this judgment, the lien claimants who appear here as plaintiffs in error appealed.
Twenty-four claims, totaling in amount $58,261.25, were filed. Five of these, amounting to $10,971.04, were denied in full, while seven others were reduced in amount from $24,956.10 to $19,357.34. The (principal amount of unpaid claims, as determined and allowed by the referee, was $41,085.85. Interest was allowed in the sum of $6,798.56, and attorneys' fees in the sum of $7,000, making a grand total of $54,884.41.
In determining the owner's liability for the payment of claims allowed, deductions from the contract price were made as...
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