Hillman v. Donaldson

• Decision Date: 11 March 1912
• Citation: 67 Wash. 410,121 P. 866
• Parties: HILLMAN v. DONALDSON et al.
• Court: Washington Supreme Court

121 P. 866

67 Wash. 410

HILLMAN v. DONALDSON et al.

Supreme Court of Washington

March 11, 1912

Department 2. Appeal from Superior Court, King County; A. W. Frater Judge.

Action for a mechanic's lien by P. H. Hillman against Charles W Donaldson, Lewis Levy and wife, and others. From a decree entered, defendants Levy and wife appeal. Affirmed.

Fouts &amp Gould and Richard Winsor, for appellants.

John P Hartman, for respondent.

CROW J.

On January 14, 1909, the defendants Lewis Levy and Rachel Levy his wife, entered into a written contract with their codefendants, C. W. Donaldson and D. J. Noonan, for the erection of a three-story apartment building in the city of Seattle, upon lots belonging to Levy and wife, for the contract price of $25,600. On September 19, 1909, the plaintiff P. H. Hillman commenced this action against the defendants C. W. Donaldson, Lewis Levy, Rachel Levy, his wife, and others, to foreclose a labor lien on the premises. On October 9, 1909, James Duggan filed his complaint in intervention to foreclose his lien for $961.38 for labor performed and materials furnished. Thereafter, upon motion of Levy and wife, the Empire State Surety Company, a corporation, was made a party defendant and served with process, for the reason that it had executed a bond to Levy and wife in the sum of $10,000 to secure the faithful performance of the contract by Donaldson and Noonan. Other parties to the action need not be mentioned on this appeal. The pleadings are voluminous. Levy and wife alleged that Donaldson and Noonan had not performed their contract in accordance with the plans and specifications; that, after giving proper notice to the contractors and the surety company, they had completed the building; that their damages had been certified by the architect as in the contract provided; that they had been damaged in the sum of $4,852.12 for expenses incurred in completing the building, in the sum of $3,800 for demurrage arising from delay, in the sum of $675 for demurrage paid to the architect, in the sum of $6,719 for faulty construction, and in the sum of $2,602.50 for liens filed by laborers and subcontractors, for all of which they demanded judgment, together with $500 attorney's fees alleged to have been expended in defending foreclosure actions on the liens. In an oral opinion the trial judge announced his findings and conclusions to the effect that none of the lien claimants, other than the intervener, Duggan, was entitled to a foreclosure decree; that Duggan was entitled to judgment for $654.28, $75 attorney's fees, his costs, and a decree of foreclosure; that the defendants Levy and wife had paid the contractors $27,121.94, and were entitled to demurrage and damages in the sum of $2,574.83, making a total credit to them of $29,696.77; that the defendant Donaldson, as successor of Donaldson & Noonan, had received $26,930; that he was further entitled to $1,838 for extras, being a total credit to him of $28,768, leaving a balance of $928.77 in favor of the defendants Levy and wife, which they were entitled to recover from the contractors and surety company, and that they would also be entitled to recover from Donaldson and Noonan and the surety company...