Pearson v. Frank

Appellant brought suit to foreclose a mechanic's lien on respondent's dwelling-house, alleging in substance that appellant was obligated under an oral contract to furnish materials and perform work and labor in repairing and adding to said building for a certain consideration, due performance, nonpayment in part, the filing of a lien, etc.

Defendant admitted the contract but in certain designated particulars denied that all of the materials were furnished and alleged that in other particulars the work was not done in a good and workmanlike manner.

The court found that the plaintiff had violated and breached his contract in certain designated particulars and that in those particulars, the work had not been done in a good and workmanlike manner, and by reason thereof plaintiff had been fully paid, and entered judgment in favor of the defendant and for her costs.

Appellant contends that substantial performance of the contract was all that was required. (9 C. J. 739.) We do not understand that respondent takes issue with appellant as to the law applicable, which, in substance, is found in 9 C. J. 739-749, and the dispute presents, therefore, solely a question of fact. (9 C. J. 748, sec. 83.)

While not without conflict, there is sufficient evidence to support the findings and conclusions of the trial court, and, under the well-known rule, the judgment is affirmed.

Since respondent's brief was not filed within the time provided by rule 43, costs should not be allowed therefor.

Wm. E. Lee, C. J., Budge and Taylor, JJ., and Hartson, D. J., concur.