Zielinski v. Szilvasy

THOMAS, J.

The court, from a careful consideration of the record, is unable to say whether or not there was an agreement between the defendant and the plaintiff whereby the defendant agred to pay the plaintiff for this work as an extra. As- has been stated, the plaintiff had agreed with the principal contractor to do “all the mason work,” and this was a part of the work to be done by the plaintiff under said contract. The fact that a proper construction of the building required this footing would not make it an extra and it was included in the general contract with the principal contractor.

The court therefore feel it unnecessary to go .into a discussion of whether or not the lien was valid by reason of the alleged failure an the part of the plaintiff to send' to the owner the preliminary affidavit. As a matter of fact, the court finds that the plaintiff has been fully compensated.for the work which he agreed to do and that there is nothing due him from the defendant.

This contract having been made between the principal contractor and the firm of which the plaintiff is a member, it seems to us that the plaintiff is not the real party in interest, and that if a suit were to be maintained that the partnership firm should have brought it instead of a member of it.

For the above reasons the judgment of the lower court is affirmed.

(Farr and Williams, JJ., concur.)