Hillman v. Donaldson
Hillman v. Donaldson
Opinion of the Court
On January 14, 1909, the defendants Lewis Levy and Rachel Levy, his wife, entered into a written contract with their codefendants, C. W. Donaldson and D. J. Noonan, for the erection of a three-story apartment building, in the city of Seattle, upon lots belonging to Levy and wife, for the contract price of $25,600. On September 19, 1909, the plaintiff, P. H. Hillman, commenced this action against the defendants C. W. Donaldson, Lewis Levy, Rachel Levy, his wife, and others, to foreclose a labor lien on the premises. On October 9, 1909, James Duggan filed his corn-
The pleadings are voluminous. Levy and wife alleged, that Donaldson and Noonan had not performed their contract in accordance with the plans and specifications; that, after giving proper notice to the contractors and the surety company, they had completed the building; that their damages had been certified by the architect as in the contract provided; that they had been damaged in the sum of $4,-852.12, for expenses incurred in completing the building, in the sum of $3,800 .for demurrage arising from delay, in the sum of $675 for demurrage paid to the architect, in the sum of $6,719 for faulty construction, and in the sum of $2,602.50 for liens filed by laborers and subcontractors, for all of which they demanded judgment, together with $500 attorney’s fees alleged to have been expended in. defending foreclosure actions on the liens.
In an oral opinion, the trial judge announced his findings and conclusions to the effect, that none of the lien claimants, other than the intervener Duggan, was entitled to a foreclosure decree; that Duggan was entitled to judgment for $653.38, $75 attorney’s fees, his costs, and a decree of foreclosure ; that the defendants Levy and wife had paid the contractors $27,121.94, and were entitled to demurrage and damages in the sum of $2,574.83, making a total credit to them of $29,696.77; that the defendant Donaldson, as successor of Donaldson & Noonan, had received $26,930; that he was further entitled to $1,838 for extras, being a total credit to him of $28,768, leaving a balance of $928.77 in favor of the defendants Levy and wife, which they were en
The appellants are dissatisfied with the judgment, insisting the award is insufficient, and further insisting that the intervener and respondent Duggan is not entitled to a foreclosure of his lien. As to Duggan, it is contended that his asserted lien is invalid; that his notice was- not filed within the statutory time; that, as to certain materials which appellants claim he delivered after June 9, 1909, he failed to mail or deliver to appellants a duplicate statement, as required by chapter 45, Laws 1909, page 71 (Rem. & Bal. Code, § 1133), and that in his lien notice he fraudulently claimed nine dollars per yard for concrete work, knowing his contract called for seven dollars per yard. These contentions involve disputed questions of fact upon which the evidence is conflicting. It is, however, sufficient to sustain findings, that the lien notice was filed in time; that all material for which any lien has been allowed was delivered upon the premises prior to June 9, 1909; that the erroneous charge for concrete work was not a fraudulent or intentional act of the respondent Duggan; that it was an inadvertent and excusable mistake; that respondent was dangerously ill and not expected to live when he verified the notice; and that he could not at that time correctly advise his counsel as to the exact facts. At the commencement of the trial, the respondent Duggan voluntarily conceded his mistake, called the court’s attention thereto, and. waived all claims in excess of seven dollars per yard. The findings, conclusions and decrees of the trial court sustaining and foreclosing the Duggan lien are affirmed.
Some exceptions are taken to rulings on the admissibility of
Dunbae, C. J., Chadwick, Morris, and Ellis, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.