Franklin v. Schultz

• Citation: 57 P. 1037,23 Mont. 165
• Parties: FRANKLIN v. SCHULTZ et al.
• Decision Date: 17 July 1899
• Court: Montana Supreme Court

57 P. 1037

23 Mont. 165

FRANKLIN v. SCHULTZ et al.

Supreme Court of Montana

July 17, 1899

Appeal from district court, Silverbow county; William Clancy, Judge.

Action by J. Franklin against Mary Schultz and Carl Schultz. Judgment for defendants, and plaintiff appeals. Affirmed.

J. O Bender and R. Alley, for appellant.

Toole Bach & Toole, for respondents.

PIGOTT J.

This action was brought to recover of the defendants the sum of $497.75, claimed to be the balance due to the plaintiff upon a building contract whereby plaintiff undertook to erect and complete for the defendants, on a lot owned by them in Butte a two-story and basement brick house in accordance with the plans and specifications, and for which the defendants promised to pay to plaintiff $2,950. Enforcement of a mechanic's and material man's lien for the alleged balance was also sought. At the conclusion of the evidence in behalf of the plaintiff, the court, trying the cause without a jury, ordered judgment for the defendants, and the plaintiff appeals. The contract provides that all the work shall be done and the building completed in accordance with the plans and specifications, and that the defendants shall make payments from time to time during the progress of the work, the final payment of $1,350 to be made "when the said building is finally compl eted and accepted by the said second parties, and the said second parties are furnished with satisfactory proof that all claims against the said building have been paid by the said first party, and that no liens exist on the said property for or on account of the work done thereon or the material furnished in the erection of the same." One of the specifications requires plastering, without reference to any particular story or room, and without exception or exclusion of any particular portion of the building. The plans call for a chimney flue in the east half of the basement. In the complaint it is alleged that the plaintiff completed the building under, and in all respects fully complied with and performed all the conditions of, the contract. These allegations the defendants, by their answer, denied. The evidence failed to show that the defendants had been furnished with proof "that all claims against the said building" had been paid, or that no liens for work or materials existed. Although the plaintiff by deposition testified generally, without descending to details, that he completed the building as provided for in the contract, yet his witnesses made it appear, and clearly, that the east room of the basement, an apartment some 31 feet long by 12 or 13 feet wide, adjoining the dining room and kitchen, which comprise the western part of the basement, was never plastered, and that no flue was ever built in that room. There was no evidence whatever tending to disclose an understanding of the parties, or in respect of the uses intended to be made of this room, from which the inference that it need not be plastered appeared or could be deduced. No effort was made by the plaintiff to show that the particulars in which the contract had not been performed were unimportant, or that the nonperformance was the result of mere oversight; nor what the cost of remedying the defects or deviations would be. The plaintiff informed the defendants that the building was completed according to the plans and specifications, and offered it to them for their acceptance; but they refused to accept it. The plaintiff then locked up the house, and refused to turn it over to the defendants, for the reason that the last payment had not been made; whereupon they entered the house from the second-story window, and asked the plaintiff for the keys. He told them that he would deliver the keys upon their making the final payment. This the defendants refused to do; but had keys made, opened the doors, and took possession of the house.

1. No error was committed in ordering judgment for the defendants. The contract specifies the event upon the happening of which and of others, the last payment should be made, namely, the production of satisfactory proof that there were no claims or liens against the...