Middelstadt v. Kostendick
| Decision Date | 19 December 1919 |
| Docket Number | 21,498 |
| Parties | A. F. MIDDELSTADT AND ANOTHER v. JULIUS H. KOSTENDICK AND ANOTHER |
| Court | Minnesota Supreme Court |
Action in the district court for Sherburne county to foreclose a mechanic's lien and recover $117.50. The facts are stated in the opinion. The case was tried before Giddings, J., who made findings and ordered judgment in favor of plaintiffs for $92.50, and ordered a sale of the premises to satisfy the lien. From an order denying their motion to amend the findings or for a new trial, defendants appealed. Affirmed.
Mechanic's lien -- findings sustained -- attorney's fee.
In this action to foreclose a mechanic's lien, the evidence sustains the findings that plaintiffs had substantially performed their contract, so that what small defects existed could be remedied at a cost of not to exceed $25; that the time for completing the contract had been waived by defendant; and that certain extra work had been done for which additional compensation should be made. There was no abuse of discretion in allowing $65 as attorney's fees for foreclosing the lien.
Frank T. White, for appellants.
Charles S. Wheaton, for respondents.
Action to enforce a mechanic's lien. Defendants appeal from the order refusing to amend the findings and denying a new trial.
Plaintiffs undertook to do the work in erecting a dwelling and barn on defendants' farm. The price for the work was $900. Defendants were to do the excavating for the cellar and foundation and furnished all the needed material. The house and barn were built, and plaintiffs were paid $800. Defendants refused to pay the remainder, on the ground that the work had not been performed as agreed nor within the time fixed. Plaintiffs filed their lien for the balance and for some extras. In the answer defendants counterclaimed for the delay and for defects. The court found that the contract had been substantially performed, except for minor omissions and defects which could be remedied at a cost not exceeding $25 that extra work was done of the value of $17.50; that defendants have waived the time limit of the contract; and allowed a lien and recovery for $92.50, together with interest and costs, including an attorney's fee of $65.
The doctrine of substantial performance of a contract as stated in such cases as Leeds v. Little, 42 Minn. 414, 44 N.W. 309, and Snider v. Peters H.B. Co. 139 Minn 413, 167 N.W. 108, was, without doubt, properly applied here. Defendants' expert testified that it would cost only $32.75 to remedy the omissions or defects in this $900 job. The court found it would not exceed $25. Taking into consideration the great amount of work done under the contract, and the small sum required to remedy the defects therein, the conclusion is hardly to be avoided that there was a substantial performance.
The court's finding that the delay in completing the work was waived is sustained. Plaintiffs testified that, owing to illness and death of a member of defendants' family, in the old home situate close to the buildings plaintiffs were erecting, they, at defendants' request, left off working for three weeks.
Defendant objects to the extras allowed. As to the five dollars allowed for priming the barn,...
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