Marchand v. Perrin

Decision Date03 February 1910
PartiesMARCHAND v. PERRIN.
CourtNorth Dakota Supreme Court

19 N.D. 794
124 N.W. 1112

MARCHAND
v.
PERRIN.

Supreme Court of North Dakota.

Feb. 3, 1910.



Syllabus by the Court.

In an action by a contractor to foreclose a mechanic's lien for a balance claimed to be due under an express contract, the answer puts in issue the allegation of the complaint to the effect that plaintiff had substantially performed the contract, and also pleads four alleged counterclaims. At the trial plaintiff's counsel moved to strike out certain of such counterclaims and certain portions of others. The trial court granted such motion in part and denied the remainder.

Held, for reasons stated in the opinion, that such rulings were nonprejudicial.

The finding of the trial court that the building erected by plaintiff for defendant under the contract was not built and completed in a good, substantial, and workmanlike manner, but was built and erected in a careless, negligent, unskillful, and unworkmanlike manner of inferior material, held amply supported by the testimony.

Plaintiff, having failed to prove a substantial performance of the contract on his part, cannot recover anything under the contract where defendant is not shown to have waived such performance.

Evidence examined, and held insufficient to show such waiver.

The mere fact of making certain payments and taking possession of and occupying the building does not of itself amount to such waiver or estop defendant from urging nonperformance of the contract on plaintiff's part.



Additional Syllabus by Editorial Staff.

In a mechanic's lien foreclosure proceeding, the refusal of a conclusion of law “that defendant was not indebted to the plaintiff in any sum whatever,” and the finding of a proposed conclusion “that the plaintiff is not entitled to a lien against the property described herein,” were not inconsistent; the intent being to hold that there was nothing due plaintiff under the contract, leaving open for future consideration the question of defendant's liability in an action on the quantum meruit, should such an action be brought.


Appeal from District Court, Bottineau County; Templeton, Judge.

Action by W. L. Marchand against F. X. A. Perrin. Judgment for defendant, and plaintiff appeals. Affirmed.

[124 N.W. 1112]

A. Besancon, for appellant. Weeks, Murphy & Moun, for respondent.


FISK, J.

This is an action primarily for the foreclosure of a mechanic's lien, and appellant desires a review of the entire case in this court.

[124 N.W. 1113]

The complaint is in the usual form, alleging, among other things, that on April 13, 1906, the parties entered into a written contract, by the terms of which plaintiff agreed to construct for defendant at Willow City a certain concrete building for the consideration of $4,550. It is also alleged that, pursuant thereto, plaintiff constructed such building, and in the construction thereof he furnished, at defendant's special instance and request, certain extras on account of changes and alterations in the original plans and specifications, which extras were reasonably worth $669.37, and which sum defendant promised to pay. After deducting credits for payments made, plaintiff claims a balance due him under such contract of $3,302.68, for which a lien is claimed and a foreclosure thereof prayed for. The complaint also alleges that as part payment under the contract defendant agreed to convey to plaintiff certain real property therein described at an agreed...

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