Griffith v. Happersberger

Citations

• 86 Cal. 605
• 25 P. 137
• 1890 Cal. LEXIS 1076

Syllabus

<p>Assumpsit tor Work, Labor, and Materials — Special Contract— Substantial Performance — Findings—Appeal — Support ot Judgment— Reversal upon Findings.—In an action of indebitatus assump- ' sit, to recover for work and labor done and materials furnished, where the defendant pleads a special contract, which he alleges the plaintiff failed to perform, if the findings show that the contract was substantially complied with by the plaintiff, and that every technical failure of the plaintiff to comply with its strict letter was cured by the acts and consent of the parties, a judgment in favor of the defendant is not supported, and will be reversed upon appeal, and judgment will be ordered in favor of the plaintiff, upon the findings, for the balance due upon the contract.</p> <p>Id. — Another Action Pending — Suit by Subcontractor — Finding outside Issues — Res Adjudicata — Parties.—When the answer in such action does not plead another action pending which had been first brought by the subcontractor of the plaintiff against the agent of the defendant to recover for a foundation built pursuant to the contract, a finding that such action was pending is outside the issues, and a judgment in such prior action against the agent of the defendant cannot estop the plaintiff, who was no party to the former action, from recovering for the same foundation, if the court finds that it was built by the plaintiff and accepted by the defendant.</p> <p>Id. — Offset — Judgment and Costs — Action between Third Parties. — The judgment and costs in such former action, in favor of the subcontractor and against the agent of defendant, cannot be deducted from the balance unpaid on the contract between the plaintiff and the defendant, nor can it be offset so as to reduce the amount of the plaintiff’s recovery.</p> <p>Id.—Findings — Performance of Contract — Non-payment of Subcontractor— Liens.—If the findings show how the contract was performed by the plaintiff, and state facts showing that the