Distefano v. Hall

• Decision Date: 26 July 1963
• Citation: 218 Cal.App.2d 657,32 Cal.Rptr. 770
• Court: California Court of Appeals Court of Appeals
• Parties: Pascal DISTEFANO, doing business under the fictitious name and style of A & Dee Construction Company, Plaintiff, Appellant and Respondent, v. Charles W. HALL, Dorothea Fabian, Defendants, Appellants and Respondents, Carl L. Dozier, Winifred Dozier, et al., Defendants and Appellants. Civ. 19502.

Page 770

32 Cal.Rptr. 770

218 Cal.App.2d 657

Pascal DISTEFANO, doing business under the fictitious name and style of A & Dee Construction Company, Plaintiff, Appellant and Respondent, v. Charles W. HALL, Dorothea Fabian, Defendants, Appellants and Respondents Carl L. Dozier, Winifred Dozier, et al., Defendants and Appellants.

Civ. 19502.

District Court of Appeal, First District, Division 1, California.

July 26, 1963.

Rehearing Denied Aug. 14, 1963.

Hearing Denied Sept. 18, 1963.

Reeser, Farrow, Barton & Barton, Oakland, for appellants Carl L. Dozier and Winifred Dozier and for Charles W. Hall and Dorothea Fabian.

Vogel & Martin, San Jose, for appellant and respondent Pascal Distefano; Cyril Viadro, San Francisco, of counsel.

MOLINARI, Justice.

All of the parties to this litigation have appealed from the judgment in an action brought to foreclose a mechanic's lien. In essence, there are three appeals: by plaintiff; by defendants Charles V. Hall and Dorothea Fabian (hereinafter referred to as Hall); and by defendants Carl W. Dozier and Winifred Dozier (hereinafter referred to as Dozier).

Statement of the Case

Plaintiff filed an action against Hall and Dozier for the foreclosure of a mechanic's lien upon certain real property. ¹ The complaint alleges that plaintiff, as a licensed general contractor, entered into a written contract with Hall and Dozier to furnish and deliver materials and perform labor in the construction of an apartment house building; that he furnished labor and materials in the construction thereof to the value of $158,458.05, of which only $30,000 was paid, leaving a balance due in the sum of $128,458.05; that said agreement provided for the payment of reasonable attorney's fees in the event suit was brought to enforce its terms; that the sum of $5,000 is a reasonable attorney's fee; and that a claim of lien was duly and timely recorded.

Dozier answered by way of general denial. Hall also answered by way of a general denial and, in addition, filed a counterclaim wherein it was alleged that Hall and Dozier had entered into a written agreement with plaintiff whereby the latter agreed to supervise the construction of a 22-unit apartment house in accordance with plans and specifications furnished by Hall and Dozier, whereby plaintiff agreed to make good for any loss or damage for defective workmanship, and whereby it was agreed that if any party was required to bring an action to enforce the terms of the contract the losing party was to pay to the successful party his costs and reasonable attorney's fees. The counterclaim alleged that plaintiff negligently supervised the construction of the building so as to cause said building to be completed in a defective manner in that neither the roof nor exterior walls of said building were weathertight; and that as a proximate result of plaintiff's negligence performance of his contractual duties the interior of said structure and the contents thereof were damaged by the elements in the amount of $30,000. It was also alleged in said counterclaim that the sum of $6,000 is a reasonable amount for attorney's fees to be allowed in the action. Hall's answer was subsequently amended to allege two additional defenses, by way of counterclaim, designated as second separate and third separate defenses, respectively. The substance of the second defense is as follows: that plaintiff falsely, maliciously and with intent to defraud, represented to Hall and Dozier that the said apartment building could be built for a total labor cost of 75 cents per square foot, exclusive of the labor to be expended by subcontractors and exclusive of the labor necessary to construct the foundations of said building; that in truth and in fact it was impossible to construct an apartment house in conformity with the plans and specifications for less than 90 cents, exclusive of the items excluded; that Hall and Dozier believed said representations and in reliance thereon entered into the aforementioned agreement; that in said agreement it was provided that plaintiff was to receive a fee of $8,000 for his services in personally supervising the construction of said building, and the sum of $4,872 for the construction of the foundation for said building as an independent subcontractor; that subsequently plaintiff falsely induced Hall and Dozier to execute the last paragraph of said agreement with reference to additional work on 'extras' desired by the latter so as to allow plaintiff to expend labor cost without limitation; that in his bill of particulars plaintiff alleged the labor cost for the construction of said building to be $31,000, exclusive of the labor of subcontractors, but including the labor expended for the foundation; and that the reasonable value of said labor is not in excess of $16,650. The third separate defense is substantially in the same form as the second defense, excepting that it alleges that in said agreement plaintiff agreed that the labor costs would not exceed $14,000; that said labor costs exceeded the sum of $30,000; and that the reasonable value of said labor is not in excess of $16,500. A bill of particulars, demanded of plaintiff was furnished and filed showing itemizations totaling $141,516.53 ² less credits of $60,285.11, ^{3 3} leaving a claimed balance due of $81,231.42.

Subsequently, and approximately one month later, plaintiff furnished and filed an amended bill of particulars showing itemizations totaling $178,661.12 ⁴ less credits in the sum of $105,148.75, ⁵ leaving a claimed balance due of $73,512.37. A bill of particular was demanded from Hall but none was furnished. A jury trial was demanded by Hall and Dozier. ⁶

At this posture the proceedings were such that the cause should have proceeded to trial before a jury on all issues with the exception of the equitable issue as to whether or not plaintiff had recorded a valid mechanic's lien and whether he was entitled to a foreclosure of said lien. The parties, however, stipulated that the question of attorneys' fees should be determined by the trial court and not by the jury. The cause proceeded to trial before a jury and a verdict was returned in favor of plaintiff and against Hall for $28,500. Judgment was thereupon entered upon the verdict. ⁷ Thereafter, and without out taking of any further evidence, the trial court made its findings of fact and conclusions of law. The substance of the said 'Findings of Fact' is as follows: that plaintiff is a licensed building contractor in this state; that Hall is the owner of the land therein described; that plaintiff entered into a written agreement with Hall and Dozier whereby plaintiff agreed to furnish labor and materials and to erect an apartment house for said defendants upon said land, according to certain plans, for a sum equal to the actual cost to plaintiff for materials and supplies used in said construction, plus the sum of $8,000 as compensation for services in supervising the construction of said building; that plaintiff supervised the construction of said building, supplied labor, furnished materials therefor, and completed and finished said building; that the balance due from 'defendants to plaintiff under said written contract, after deducting all credits and all sums as and for damages sustained by defendants as alleged in their answer and counterclaim is the sum of $128,500.00'; ⁸ that in addition to the said sum of $28,500 there is still due and owing for materials and labor used and furnished in the construction of said building the sum of $14,843.85 'for which defendants herein are solely responsible and obligated to pay any amount or portion of said sum'; that the sum of $4,000 is a reasonable sum to be awarded as and for plaintiff's attorney's fees; and that plaintiff filed for record a lien and notice of lien provided for by law. From these findings of fact the court concluded that plaintiff is entitled to a judgment against Hall for $28,500, together with $4,000 attorney's fees, and that he is entitled to foreclose his lien upon the real property described in his complaint 'in the sum found due to him.' The court below further concluded that plaintiff 'is in no way obligated to pay' the aforementioned sum of $14,843.85, and that said obligation was the sole responsibility of 'defendants herein.' Judgment was thereafter entered in accordance with said findings of fact and conclusions of law. It should be here noted that the said verdict, judgment on the verdict, findings and conclusions, and the trial court's judgment do not make any reference to any adjudication for or against Dozier. We shall hereafter allude to this circumstance in our discussion of Dozier's appeal. ⁹

The Facts

A written agreement entitled 'Building Contract,' reciting that it was made on March 10, 1958, was entered into by and between Hall and Dozier, who are designated therein as 'Owners,' and plaintiff, who is therein called the 'Contractor.' At the trial each of the parties introduced in evidence his copy of said agreement. ¹⁰ Each copy was in typewritten form with the signatures of the parties appearing on the last page thereof and at the end of the typewritten portion. On the last page of each copy of said agreement and below the aforesaid signatures there is an undated handwritten addendum also signed by all of the parties to the agreement. This addendum reads as follows: 'Contrary to any promises hereinabove stated. Owners shall pay to Contractor the actual costs to Contractor for all labor, materials and other proper charges for the work to be performed in accordance with this agreement, in addition to the sum of $8,000.00 as referred to in Paragraph Seven (7) of this Agreement.' It is undisputed that this addendum was executed at or about the same time as the typewritten portion of the said agreement. The testimony at the trial, however, was in conflict with respect to paragraph 5(c) of the agreement which reads as follows: 'Actual costs...