Brodek v. Farnum

Citations

• 11 Wash. 565
• 40 P. 189
• 1895 Wash. LEXIS 344

Syllabus

<p>BUILDING CONTRACT — ACTION FOR BREACH — WAIVER — COMPLETION BY SURETY—SET-OFF — JOINT AND SEVERAL CLAIMS.</p> <p>In an action for damages for tbe improper construction of a building and tbe use of defective materials therein, and for loss of rents, the defendant is not entitled to a non-suit, because the proof shows that payments were made by plaintiffs after the expiration of the time fixed for the completion of the building and after knowledge of a change in the plans of construction, when the proof also tends to show that defective materials had been used without their knowledge.</p> <p>Where a payment is made on a building contract subsequent to the expiration of the time agreed upon for completion, the oitner is not entitled to damages for loss of rents prior to the date of such payment by him.</p> <p>One who agrees to complete a building abandoned by the original contractor has a reasonable time to complete it, where no date is specified in his agreement, although the original contract required it to be completed at a specified time.</p> <p>Where by the terms of a building contract the owner is required to provide the foundation for the building, which he undertakes to do, he cannot recover damages from the contractor for making the ground floor above street grade, when such defect is the result of the foundation being too high.</p> <p>Upon the abandonment of work by a contractor under his building contract, owing to a disputed liability as to the fall of the building, a new contract may be legally entered into by a surety, and, in an action by the owner for damages under the original contract, such subsequent contract is admissible in evidence by way of defense and counterclaim.</p> <p>Although a surety upon a building contract has, in an action for damages by the owner, set up by way of counterclaim a new contract with himself for the construction of the building after abandonment by the contractor, he may also set up a counterclaim upon the part of all t