De Lorenzo v. Von Raitz

This action was brought to foreclose a mechanic’s lien upon certain premises owned by the defendant Von Raitz. Upon the trial it appeared that in May, 1897, the plaintiffs and the defendant Von Raitz entered into a contract, whereby the former agreed for the sum of $1,150 to perform certain services in plastering, painting, and decorating the latter’s building, and in pursuance of this contract the plaintiffs performed certain services, and also performed, at Von Raitz’s request, services not called for in the contract to the amount of $523.16,—making a total amount which Von Raitz was liable to pay of $1,673.16; and that during the progress of the work the plaintiffs were paid the sum of $1,145. It also appeared, and the learned trial court found, that the plaintiffs never completed the contract, but left and abandoned the work before the same was completed, and by reason of such abandonment that Von Raitz was compelled to and did employ other workmen, and expended money to the amount of $743, to complete the work left undone by the plaintiffs, and to repair defective work done by them, which sum, together with the amount paid by Von Raitz to the plaintiffs, made an overpayment to them of $214.84, for which sum judgment was directed in favor of Von Raitz and against plaintiffs. The correctness of the sums expended by Von Raitz was not seriously disputed upon the trial, but the plaintiffs then insisted, as they do now, that they never abandoned the work, but were prevented from completing the same by Von Raitz himself, in that he refuses to permit them to continue under the contract, or to complete the work which they had agreed to do, and that, therefore, they were not legally • chargeable with the amount expended by him for the completion of the work.

Whether, in fact, there was an abandonment by the plaintiffs was the main question litigated upon the trial, and concerning which evidence was given upon both sides. The trial court found that there had been an abandonment, and there is evidence to sustain the finding. It certainly is not against the weight of evidence, and therefore we have no right to interfere with it. Benedict v. Arnoux,

We think the letter referred to by the appellants was properly excluded. It was not written until after the lien had been filed; and the rights of the parties, so far as this action is concerned, had then become fixed, and could not thereafter be changed by the act of one party without the consent of the other.

The defendant Bradley filed a lien for work performed by him in making certain excavations on the same premises, and on that account he was made a defendant, and the validity of his lien was also litigated at the trial. The learned trial justice held that his alleged lien was null and void, and directed that the same be canceled, and discharged of record, and Bradley has appealed from that portion of the judgment. As to Bradley’s claim, it appeared upon the trial that Von Kaitz entered into a contract with one Steinman, whereby the latter agreed to do certain excavating for the sum of $500, and that Steinman hired Bradley by the day to do his work. Before the commencement of this action, and before Bradley had filed his lien, Von Kaitz had paid to Steinman the $500 called for by the contract, and, in. addition thereto, had voluntarily- paid to him, in order that the work might be speedily completed, the further sum of $300. The work performed by Bradley amounted to $1,504.37, and he sought to hold Von Kaitz liable for such sum, less

Upon both branches of the case we are satisfied that the questions presented were properly disposed of by "the trial court, and for that reason the judgment must be affirmed, with costs. AE concur.