59 Wash. 405 | Wash. | 1910
Plaintiff brought this action to foreclose a mechanics’ lien, for the amount due him as contractor for the construction of a building at Ralston, in Adams county. The
The plaintiff first argues that the court erred in overruling the demurrers to the affirmative defenses which set up •counterclaims. The answer of the defendants, after admitting the contract alleged in the complaint and making certain general denials, alleged as an affirmative defense by way of counterclaim, as follows:
“That in the contract entered into between plaintiff and defendants it was agreed that he would complete the building and deliver the same to the defendants on or before December 1, 1908, and in. case of failure to deliver the said building "the said plaintiff agreed to pay stipulated damages in the sum of $5 per day, and on the 15th day of April, 1909, the date of bringing this action the said building had not been finished or delivered as per the contract, and by reason thereof the plaintiff is indebted to these defendants in the sum of $600.”
It is next argued that the court erred in receiving in evidence a copy of the plans and specifications. There is no merit in this contention, for the copy offered in evidence was identified as the specifications referred to in the contract. None were attached to the contract set up in the complaint,, although the plans and specifications were made a part thereof by express reference thereto, and it is not claimed that the copy offered was not correct. The evidence is sufficient to show that the copy offered is one of the originals.
It is next argued that the court erred in deducting $550' as stipulated damages, for delay in completing the building after the period provided for in the contract, being-one hundred and ten days at $5 per day. Such, contracts have frequently been enforced by this court. See, Jenkins v. American Surety Co., 45 Wash. 573, 88 Pac. 1112, and cases there cited. There is, therefore, no merit in the plaintiff’s appeal.
On the appeal of the defendants, it is argued that the-court erred in receiving in evidence the final certificate of the-architect, to the effect that the final payment was due. It appears that a bill for extras, amounting to $521.15, had been-, presented by the contractor to the architect' for approval.. The architect approved certain items amounting to $326.45, and rejected the other items for extras. The architect also-made deductions for imperfect work and work not done according to the contract, in the sum of $183, which amount was also deducted from the claim allowed for extras, thus.
The contract provides, at article 3, that, in case the owner and contractor fail to agree as to the amount to be paid or allowed for alterations, the determination of the amount shall be referred to arbitration. If it is conceded that the architect had no authority under the contract to fix the amount for extras, and the amount for defective work, and work not done,
The appeal of the defendants is therefore sustained, and the cause remanded with direction to the lower court to decree a foreclosure of the lien in favor of the plaintiff for $59.60, with costs and attorney’s fees as stated in the decree. The defendants will recover their costs on this appeal.
Rudkin, C. J., Dunbar, Crow, and Parker, JJ., concur