Sitkin v. Smith

• Decision Date: 23 April 1929
• Docket Number: Civil 2795
• Citation: 35 Ariz. 226,276 P. 521
• Parties: FRANCES B. SITKIN and FRANK L. SITKIN, Her Husband, Appellants, v. SAM A. SMITH and THE EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LTD., Appellees
• Court: Arizona Supreme Court

276 P. 521

35 Ariz. 226

FRANCES B. SITKIN and FRANK L. SITKIN, Her Husband, Appellants, v. SAM A. SMITH and THE EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LTD., Appellees

Civil No. 2795

Supreme Court of Arizona

April 23, 1929

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.

Mr Herman Lewkowitz and Mr. Joseph B. Zaversack, for Appellants.

Messrs Cox, Moore & Janson, for Appellee Smith.

Messrs Sloan, Holton, McKesson & Scott, for Appellee Corporation.

OPINION

ROSS, J.

This action grows out of a building contract, dated October 19th 1926, in which Sam A. Smith as contractor agreed to furnish all material and provide all work according to specifications and drawings, and to complete within ninety days from date of contract, under the direction and to the satisfaction of her architect, a brick residence for Frances B. Sitkin, on lot 4, block 19, Story addition to the city of Phoenix, for $6,300. November 2d, 1927, Frances B. Sitkin, joined by her husband, Frank L. Sitkin, brought this action against Smith and his surety, the Employers' Liability Assurance Corporation, Limited, alleging that they had paid to the defendant Smith $1,600 cash; to mechanic lienholders who had filed on residence for labor and material, $5,523.04, and the sum of $61.40 costs, also, at defendants' request, $50.17 for hardware, or a total of $7,236.61; that while they took possession on April 2d, 1927, the building was not completed then or at all; that because of defective workmanship in the plastering of the living and dining room, it was necessary to repaint them at a cost of $135; that other undone work (enumerated) cost plaintiffs $112.50; that omitted work (enumerated) cost $164.50. Allowances for difference between the material used and that specified, and for labor, are claimed in the sum of $451.08, and damages for delay in completing building $150.

The prayer of the complaint was for judgment for the difference between the total of the above items, $8,249.69, and the contract price of $6,300, or $1,949.69.

The defendant Smith answered admitting the contract price was $6,300; that plaintiff had paid him and others for his account $7,060.50; but he alleges that under the directions of the plaintiffs he made changes and alterations in said building at an additional cost in labor and material (itemizing such costs) of $1,375.13, and asked for judgment on his counterclaim in the sum of $614.63.

The Employers' Liability Assurance Corporation, Limited, demurred and pleaded the general issue. Smith obtained a verdict against plaintiffs for $551.30 on his counterclaim, upon which judgment was entered. A separate judgment was entered in favor of the Employers' Liability Assurance Corporation, Limited, for its costs. No appeal was perfected from the latter judgment, and we will not consider points raised or suggested as to the surety's liability under its bond.

No questions are involved as to the sufficiency of the pleadings. The plaintiffs do insist, however, that error was committed in permitting the defendant to introduce oral evidence of changes and alterations in the drawings and specifications, in the absence of a showing that such changes and alterations were ordered in writing by the architect or ordered and agreed to in writing by the owner before made. It is claimed that such evidence varied the terms of the written agreement as expressed in the contract and the drawings and specifications attached thereto. Article III of the building contract, so far as it directly affects the question, reads:

"No alterations shall be made in the work shown or described by the drawings and specifications except upon a written order of the Architects, and when so made, the value of the work added or omitted shall be computed by the Architects, and the amount so ascertained shall be added to or deducted from the contract price."

In the specifications among the general conditions is this one:

"The contractor shall not vary from the drawings and specifications. Should the owner at any time during the progress of the work request any alterations, or additions to or deviations or omissions from the work included in the specifications, such request shall be acceded to by the contractor and the same shall in no way affect or make void the contract. No such alterations, additions, deviations or omissions which affect the price or the time for completion as agreed upon shall be done, however, without a written order from the owner."

Provisions like the above in building contracts are very common. They are binding upon the parties, neither of whom may show by parol testimony that the agreement, at the time of its execution or before, was otherwise than as...