Campbell v. Jung
Campbell v. Jung
Opinion of the Court
This is an action to foreclose a mechanic’s lien for a balance of $6,477.89 allegedly due plaintiff, a general contractor, for the building on a cost plus basis of a store building and another small building on a lot owned by defendants at Fairfax, California. The court gave plaintiff judgment for $6,214.84, costs and foreclosure of lien and defendants appeal. They complain that the rejection of their contentions below, that they were overcharged (that not all amounts charged went into or were reasonably chargeable to the construction of the building), that the rear part of the store as built extended into an adjoining lot not owned by them and that the walls of the store did not form right angles,
The question of the alleged overcharging was originally excluded from the trial before the court as it was to be assigned to a referee. As to the other points it was conceded that the contract as to the construction of the store contained the provision: “It is understood that property lines and proper location of the building will be the responsibility of the owner.” Moreover the evidence showed without conflict that defendants, when the building was started, were in possession of several conflicting survey maps, which they did not show to plaintiff or his personnel notwithstanding a request for maps, and that defendant Harry Pong told them that an existing adjacent building overlapped somewhat on his premises, but that he wished the sidewall of his new building to be built (gunnited) against the sidewall of the neighbor, whose permission for such gunniting he said he had obtained. Harry Pong testified that he had also given directions to build the sidewall at right angles to the sidewalk line and also to line the sidewall from a survey stake at the back end of the lot indicating the property line with the adjacent property. There was surveyor’s evidence that the existing wall against which the new sidewall was to be gunnited did not follow the property line but to the rear deviated into the neighbor’s premises, and that the front angle of defendants’ lot at the side of said neighbor’s building was not 90 degrees but somewhat less than 89 degrees. Therefore both the direction to build against the existing wall of the neighbor and to build at a 90-degree angle to the sidewalk would cause defendants’ wall to overlap on the adjacent premises. The evidence of plaintiff and his personnel was that the only direction received was to gunnite the sidewall against the existing sidewall of the adjacent building, that this was done; that the gunnited wall, which because of the greater depth planned for the new building had to extend to the rear beyond the adjacent sidewall, was there extended in the same general direction as given to the front part of the existing wall so that
When, after the reference as to the overcharging, the trial before the court was reopened, the attorney of defendants declared in substance that bills and vouchers had been furnished and that many items were “O.K.,” no longer in dispute. The items still in dispute were enumerated, and it was decided that evidence as to these items would be taken before the court. The plaintiff then offered evidence with respect to these items one by one. After the conclusion of this evidence appellants offered evidence and calculations of the expert witness Tieslau as to what reasonably should have gone into the buildings and what they should have cost. Plaintiff objected because such evidence was out of line with the earlier admittance of many items, among which all materials furnished, were no longer in dispute. However the court permitted the evidence to go in. Plaintiff then recalled the witness Yates, his general superintendent, who testified that all charges for material and all payroll charges made by plaintiff were reasonable, thus causing a conflict with Mr. Tieslau’s evidence.
Appellants, contending that the decision as to the amount overcharged is not supported by the evidence, cite no other evidence than that of their witness Tieslau that the reasonable price of the construction would amount to approximately $10,500 and further urge only that too much supervisory personnel was used. We need not decide whether the evidence of the witness Tieslau as to the reasonable costs of construction had any relevancy although it did not take into consideration the charges which were no longer disputed by defendants, because the court by implication preferred to accept the testimony of the witness Yates that, with a few specified exceptions, the charges made were reasonable.
With respect to the supervision the court by implication accepted the testimony of the same witness that the hours of those who did the supervising and expediting work did not duplicate, but that in a large organization working on different jobs at the same time, supervising personnel must sometimes substitute for each other. The evidentiary support as to other items, not specifically mentioned, can evidently not be reviewed.
Judgment affirmed.
Goodell, J., concurred.
A petition for a rehearing was denied November 6, 1953.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.