Raymond v. Agren, Civil 3471

• Decision Date: 22 October 1934
• Docket Number: Civil 3471
• Citation: 36 P.2d 797,44 Ariz. 327
• Parties: R. O. RAYMOND and MARIANA HERMAN, Appellants, v. N. P. AGREN, Appellee
• Court: Arizona Supreme Court

36 P.2d 797

44 Ariz. 327

R. O. RAYMOND and MARIANA HERMAN, Appellants, v. N. P. AGREN, Appellee

Civil No. 3471

Supreme Court of Arizona

October 22, 1934

APPEAL from a judgment of the Superior Court of the County of Coconino. P. A. Sawyer, Judge. Judgment affirmed.

Mr Chas. C. Jones, for Appellants.

Messrs Wilson, Wood & Compton, for Appellee.

OPINION

LOCKWOOD, J.

This is an action by N. P. Agren, hereinafter called plaintiff against Mariana Herman, hereinafter called defendant, and R O. Raymond, on an alleged building contract between plaintiff and defendant. A contractor's lien was filed by plaintiff, and Raymond was made a party as a mortgagee, with rights alleged to be junior to the lien. Judgment was rendered in favor of plaintiff and against Herman for some $3,000, and for a foreclosure of the lien and from this judgment defendant Herman has appealed.

There are three assignments of error which raise for our consideration three questions, which we shall consider in the order which seems advisable: First, as to the sufficiency of the evidence to support the allegations of the complaint. The complaint sets up a certain written building contract between plaintiff and defendant, and then alleges as follows:

"That in addition to the contract price for said building as set forth in said agreement, and subsequent to the making thereof, by mutual agreement between plaintiff and defendant Mariana Herman, at divers times during the construction of said building, certain alterations were made in the plans and specifications of said building and additional and extra services and materials were stipulated to be performed and furnished, said additional services and materials, and the price agreed to be paid therefor, being as follows, to-wit,..."

and continues with six specific items of labor and material, aggregating $604.35. The undisputed evidence shows that, in addition to these six items, the written contract was by oral agreement modified so materially as to amount almost to an entirely different contract, but that, with the exception of the six items specified, no change in, or addition to, the contract price was made or asked. It is urged by defendant that, when it is sought to rely on a modified contract, the contract as modified must be declared on and not the original contract. It is further claimed that, when a general allegation that the contract was modified is followed by specific allegations of the manner of the modification, the declarant is limited in his proof to the modifications set up.

Plaintiff does not seriously dispute the general rule, but contends that the rule is not applicable when distinct issues are presented by the general and specific allegations, and that the complaint herein shows clearly that the specific items are not part of the alterations. We think the exception to the rule is correctly stated and that the complaint comes within it. The language is as follows: "Certain alterations were made in the plans and specifications of said building and extra services and materials were stipulated to be performed and furnished, said additional services and materials and the prices...