105 Cal. 114 | Cal. | 1894
Plaintiffs recovered judgment as materialmen and subcontractors foreclosing liens upon the building of defendant, and this appeal is taken from the judgment and order denying the motion for a new trial.
The contract price was four thousand dollars, payable in four equal installments as the work progressed.
Upon an examination of the evidence we conclude that the contractor failed to comply with the terms of his contract in substantial particulars, and, having committed breaches of ,the contract, he was not justified in leaving the work as he did leave it. It follows from this conclusion that the finding of the court that the contractor had duly performed all the terms and conditions of said contract upon his part up to the tenth day of March, 1892, fails for want of support in the evidence.
Deeming these breaches of the contract substantial and material it is unnecessary to notice other alleged violations of its terms, for we conclude that the con
Upon the conclusion of the evidence the court declined to hear an oral argument of the case, but gave the attorneys the privilege of filing briefs. Appellant insists that he had a legal right to orally argue the case to the court. We have no doubt that the court in the exercise of its discretion had the right to decline to hear oral argument. We also think the objections to the liens untenable, and the percentage of ninety-five dollars and fifty cents allowed by the court as costs was fully justified by the following cases: Whitaker v. Haynes, 49 Cal. 596; Packard v. Wilson, 72 Cal. 124; Fanning v. Leviston, 93 Cal. 186.
It is ordered that the judgment and order be reversed and the cause remanded for a new trial.
Harrison, J., and Van Fleet, J., concurred.