44 Wash. 558 | Wash. | 1906
The plaintiff, W. H. Sorrill, instituted this action to foreclose a lien for labor and material furnished by him in the construction of certain flues, fireplaces and brick mantels in an apartment house belonging to defendants James McGougan and Barbara McGougan, his wife. The original contract price was alleged to be $420. The plaintiff sought to recover $95 remaining due on the contract, and $10 for extra work. The defendants denied that any sum was due the plaintiff, and alleged that the flues were not built in accordance with the contract; that their construction was so defective as to cause them to smoke and be unfit for use; and that the defendants had been thereby damaged in the sum of $350, for which they asked judgment.
The respondent has moved to dismiss the appeal, contending that although this was originally an action in equity, it ceased to be such when the court found that he was not entitled to a lien, and that the original amount in controversy is less than $200. By their answer the appellants contend (1) that no sum whatever was due the respondent; and (2) that they had sustained damages in the sum of $350, for which they asked judgment. Had the appellants succeeded in fully establishing their counterclaim they would have been entitled to a judgment for $350. The amount in controversy is, therefore, over $200, and the action is appealable without regard to the question as to whether it continued to be an action in equity. The motion to dismiss is denied.
The only question raised upon the merits is one of fact. It appears from the evidence, that the respondent was to perform his contract in accordance with plans and specifications prepared by the appellants’ architect, who did not superintend the work; that the appellants’ agent, T. A. Moar, was authorized to let subcontracts and superintend all construction as the work progressed; that Mr. Moar was present from time to time during the progress of the building of the mantels, flues, and fireplaces, but failed to object to the char