Folco v. Sorenson

• Decision Date: 07 December 1923
• Docket Number: 18202.
• Citation: Folco v. Sorenson, 220 P. 821, 127 Wash. 291 (Wash. 1923)
• Court: Washington Supreme Court
• Parties: FOLCO v. SORENSON.

220 P. 821

127 Wash. 291

FOLCO v. SORENSON.

No. 18202.

Supreme Court of Washington

December 7, 1923

Department 2.

Appeal from Superior Court, Pierce County; M. L. Clifford, Judge.

Action by Joseph Folco against Ole T. Sorenson, in which the defendant filed a cross-complaint. Judgment for defendant and plaintiff appeals. Affirmed.

S. F McAnally, of Tacoma, for appellant.

PEMBERTON J.

In the month of September, 1922, respondent entered into a written agreement with appellant as follows:

'Contract between Joe Folco, of Tacoma, Washington, and O. T. Sorenson, of Tacoma, Washington, witnesseth: That for a consideration of $475 the said O. T. Sorenson agrees to furnish all the labor required to raise the house of the said Joe Folco one foot, and move the same house six feet to the rear; also to do all labor in connection with a concrete basement and floor, and to furnish all brick masons, lathers plasterers, and carpenters to complete the said house according to certain plans and specifications prepared therefor, to the entire satisfaction of said Joe Folco. This contract does not include electric wiring nor plumbing. The said Joe Folco agrees to furnish these in sufficient time not to delay the contractor. The said Joe Folco also agrees to furnish all the materials required for the completion of said house.'- A number of changes were made in the plans and specifications requiring additional labor.

On January 25, 1923, respondent filed a claim of lien against the property for the sum of $377.12, the balance due for his services. Soon thereafter appellant instituted this action to remove the cloud from his title created by the filing of the lien claim. Respondent in his answer and cross-complaint asked for the foreclosure of his lien claim.

It is claimed by appellant that respondent failed to complete his contract, and through his carelessness and negligence the house is unlevel.

The trial court found that the respondent was entitled to $402.12 for the extra work required. This added to the contract price there was due the sum of $877.12, upon which appellant had paid $490.60, leaving a balance of $377.12 due respondent. The court found, however, that respondent had failed to perform his contract in not leveling the building, and stated:

'It is true that there is no sufficient measure of damages. It must to a large extent be guessed at, but, as near as I can come to what I think is just, I will allow the cross-complainant $100 on his lien, and that is all I will allow.'

Findings of fact, conclusions of law, and judgment were entered in favor of the respondent, from which judgment this appeal is taken.

Appellant insists that the court erred in allowing but $277.12 for the failure of respondent to level the building. One witness testified as follows: 'What would be the reasonable cost of raising that building, making it perfectly level, that is within a quarter of an inch, we will say, and do the work which would be incidental in making the house complete?' The answer was '$400.' This question includes other conditions than merely the leveling of the building. Just what would be included in making the house complete was not stated.

It is next contended by appellant that the testimony shows that appellant had paid $594 to respondent while the court found the payment to be but $500.50. The respondent testified as follows:

'Did Mr. Folco make some payments? A. Yes.

'Q. Have you the list of payments? A. Yes.

'Q. You may state how much that is. A. Altogether he paid me $490.60.

'Q. That leaves how much due you on the contract for your services? A. $377.12.

'Q. (by the Court).

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