Michael A. PARKER and Grace L. Parker, his wife, Appellants,
T. C. HOLMES, Appellee.
[79 Ariz. 83] Jennings, Strouss, Salmon & Trask, Phoenix, for appellants.
Moore & Romley, Phoenix, for appellee.
The judgment which is here reviewed was entered in a suit in the court below to foreclose a lien for labor and materials, under Section 62-201 et seq., A.C.A.1939, furnished by plaintiff-appellee T. C. Holmes to defendants-appellants Michael A. Parker et ux. in the construction of a drive-in theater. The parties will be referred to as plaintiff and defendant. The lower court found that defendant was indebted to plaintiff in the principal sum of $14,550 plus interest and costs, which sums were decreed to be a personal obligation of the defendant and also a lien on the real estate involved. The lien was ordered foreclosed and special execution directed to issue. Supersedeas bond was given and this appeal followed.
The plaintiff was a licensed contractor during the time covered by the controversy, and the defendant was the owner of a parcel of real estate at 3700 West Van Buren Street, Phoenix, Arizona, upon which he desired to construct a drive-in theater. The parties entered into a written contract on November 8, 1950, whereby plaintiff agreed to grade and surface the area on both sides of a moving picture screen. We deem it unnecessary to set out the contract haec verba-it was obviously drawn by a lay-man-suffice it to say that the contract price
for the completed job of grading, rolling and compacting with a topping of two inches of granite covered with emulsified asphalt sealed with sand, was 48 1/2cents per sq. [79 Ariz. 84] yd. and the yardage was estimated at approximately 80,000 sq. yds. Some difficulties arose between the parties, and on or about December 15, 1950, plaintiff quit the job under circumstances which the trial court held amounted to a termination by mutual consent. No issue is now made of this finding.
The notice and claim of lien filed by plaintiff was for $16,300 for labor and materials. The principal items were a claim for grading 80,000 sq. yds. at 18cents per sq. yd. and a claim for 900 yds. of granite at $2 per yd.
At the trial plaintiff produced several witnesses, estimators of well-known local contracting firms, to testify as to what, in their opinion, was the 'reasonable value' of the work done by plaintiff. Their figures on the grading ranged from 18cents to 27cents per sq. yd. The defendant's experts, on the other hand, placed the reasonable value of the grading at 10cents per sq. yd.
In rendering its judgment the learned trial court, in the main, accepted plaintiff's evidence and that of his experts who testified as to the 'reasonble value' of the work performed. Defendant was denied recovery on his counterclaim for damages for wrongful abandonment of the contract and defective performance, and he has not cross-appealed therefrom.
The factual basis for defendant's sole assignment of error and proposition of law (hereinafter set forth) arises from a pretrial examination of plaintiff's books and records, which records defendant asserts reveal the actual costs of labor and material. A recapitulation of these records, admitted in evidence as defendant's exhibit No. 1, showed on its face a total cost of $11,998.65. However, defendant contends that by cross-examination of plaintiff he established certain duplications therein, which when eliminated reduce the actual cost to $6,208.65.
Defendant's sole assignment of error is:
'The court erred in fixing the reasonable value of the work done at * * * $14,400.00, for the reason that the plaintiff's own testimony established that the actual cost of the work was the sum of $6208.65.'
In support of this assignment he presents one proposition of law:
'Where exact costs are established for labor and materials furnished in improving the defendants' property the plaintiff may not recover a judgment enforcing a mechanic's lien for sums in excess of such amounts.'
It seems to be defendant's position that in the instant case 'reasonable value' is synonymous with actual costs, and that such costs are the true measure of the benefit conferred. In other words the defendant is contending that it did not cost the plaintiff as much to do the work as the judgment allowed him, and that he is not ...