Friendly v. Larsen

• Decision Date: 12 January 1944
• Docket Number: 3386.
• Citation: 144 P.2d 747,62 Nev. 135
• Parties: FRIENDLY et al. v. LARSEN et al.
• Court: Nevada Supreme Court

144 P.2d 747

62 Nev. 135

FRIENDLY et al. v. LARSEN et al.

No. 3386.

Supreme Court of Nevada

January 12, 1944

Appeal from District Court, Fourth Judicial District, Elko County James Dysart, Judge.

Action by A. L. Larsen and others against Edward Friendly and others to foreclose a mechanic's lien. From a judgment for plaintiffs, defendants appeal.

Affirmed.

Milton B. Badt, of Elko, for appellants.

McNamara & Robbins and A. L. Puccinelli, all of Elko, for respondents.

ORR Chief Justice.

Respondents were engaged by appellants to reconstruct a dwelling house construct new buildings, and repair others, all situate upon what is known as the Sam McMullen Ranch, in Elko County Nevada. After the completion of the work a disagreement arose between the parties as to the amount due from appellants to respondents. Respondents filed a mechanic's lien against the said property, and later brought suit to foreclose it. The district court rendered judgment in favor of the respondents in the sum of $2,910.69, together with costs of suit and an attorney's fee in the sum of $750, which said judgment was declared to be a lien upon certain premises described therein.

This appeal presents, almost exclusively, questions of fact which have been resolved in favor of respondents by the trial court, and, of course, the findings of the trial court will be sustained if there is any substantial evidence in the record supporting them. Round Mountain Min. Co. v Round Mountain Sphinx Co., 35 Nev. 392, 129 P. 308; Murray v. Osborne,

33 Nev. 267, at page 277, 111 P. 31; Botsford v. Van Riper, 33 Nev. 156, 110 P. 705; Indiana N.M. Co. v. Gold Hills Co., 35 Nev. 158, 126 P. 965; McStay Supply Co. v. Stoddard, 35 Nev. 284, 132 P. 545; Girton v. Daniels, 35 Nev. 438, 129 P. 555; Rawhide Balloon F. M. Co. v. Rawhide Coalition M. Co., 33 Nev. 307, 111 P. 30; Jensen v. Wilslef, 36 Nev. 37, 132 P. 16, Ann.Cas.1914D, 1220; Round Mountain Min. Co. v. Round Mountain Sphinx Co., 36 Nev. 543, 138 P. 71; Rehling v. Brainard, 38 Nev. 16, 144 P. 167, Ann.Cas.1917C, 656; Gaston v. Avansino, 39 Nev. 128, 154 P. 85; Carey v. Clark, 40 Nev. 151, 161 P. 713; Clark Co. v. Francovich, 42 Nev. 321, 176 P. 259; McNee v. McNee, 49 Nev. 90, 237 P. 534, 537; O'Banion v. Simpson, 44 Nev. 188, 191 P. 1083.

Appellants recognize this rule, but insist that a study of the record will disclose that as to the questions presented the findings of the trial court have no substantial support therein.

We have decided not to quote the voluminous extracts from the evidence to which we have been referred by respective counsel, believing that to do so would be of little value.

The first point made by appellants is that the evidence establishes that respondents received a discount on the material furnished, and that said discount was not passed on to appellants. The appellants and respondents agree that the contract for the dwelling house was for the specified sum of $10,303 or for cost plus seven per cent, whichever might be the lower. Respondents contend that the appellants were not charged one cent in excess of $10,303 for the work done under the original contract for the reconstruction, repair and improvement of the dwelling house under the Vahy plans and specifications, and their contention finds substantial support in the evidence. However, certain specified work and construction is conceded to have been performed on a cost plus basis, and as to this construction it is urged the respondents obtained, and retained for their sole benefit, discounts; that as a matter of law such an advantage cannot legally be taken by a contractor as against the principal. Green v. Post, 135 Wash. 209, 237 P. 307. That such is the law is conceded by respondents, and such is the view held by the trial court. However, appellants complain that said court failed to apply that rule. We have read the record and particularly the portions cited by counsel, and we are convinced that substantial evidence exists to sustain the finding of the trial court that appellants received the benefit of all discounts given the respondents on the prices of materials used in the construction and repair of the buildings, and hence the finding of the trial court is sustained.

The next assignment of error relied on deals with two written change orders. The first written change order contains sixteen changes, and the second eighteen changes. All of the additions in these changes were allowed by the court, and a few subtractions were allowed. However, subtractions aggregating $391.16 were disallowed. Respondents discuss these items in detail, with many references to the record and quoting of testimony in support of their contention that substantial evidence exists to sustain the findings of the trial court. We find such to be the fact, and the finding of the trial court is sustained. As to other items not involved in written change orders, appellants frankly concede that most of these items were the subject of conflicting testimony, but claim that the evidence indicates clearly gross and unwarranted padding of items of labor and material. Some of the items were disallowed by the trial court. We think the trial court gave careful consideration to the evidence relative to the items in question, and that the claims of the appellants were disallowed only in such instances as the evidence on the part of the respondents substantially justified and sustained a finding in their favor.

The next proposition deals with extras which appellants claim the respondents were bound to supply under the terms of the contract. Certain claimed deductions were asked by appellants of the trial court; some were allowed and others disallowed. We think the court took the proper view of the law and the facts in making a determination of this claim.

The fourth contention relates to a claim as extras in relation to what appellants insist is the use of respondents' own tools. We will dispose of this matter by stating that the evidence in respect thereto was sufficient to justify ...