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Farrell v. Lacey

February 23, 1973

FARRELL, RESPONDENT,
v.
LACEY ET UX, APPELLANTS, BASIC BUILDERS, INC. ET AL, RESPONDENTS



Appeal from Circuit Court, Marion County. George A. Jones, Judge.

F. P. Stager, Salem, argued the cause and filed briefs for appellants.

Myron L. Enfield, Salem, argued the cause and filed a brief for respondent Farrell.

James O. Garrett, Salem, argued the cause for respondents Basic Builders, Inc., and Hi-Lo Construction Co. With him on the brief were Crawford, Garrett & Seideman, Salem.

In Banc. Bryson, J.

Bryson

Plaintiff, a plumbing contractor, brought this suit to foreclose a mechanic's lien on property situated in Marion County and owned by defendants Lacey. Defendant Basic Builders, Inc., was the building contractor. Defendant Frank Spoor, doing business as Hi-Lo Construction Co., was the subcontractor for excavation, and plaintiff was the subcontractor for plumbing.

Defendants Lacey filed an answer to plaintiff's complaint, admitting that they executed a construction contract with Allan Hahn, of Basic Builders, and generally denied the remaining allegations of plaintiff's complaint.

Defendant Spoor filed an answer to plaintiff's complaint and a separate answer and counterclaim seeking to foreclose his lien against the property for labor performed and materials furnished.

Defendant Basic Builders filed a general denial to plaintiff's complaint and a separate answer and

counterclaim alleging completion of its contract to build a residence for defendants Lacey and seeking to foreclose two liens against the property, each of which covered unpaid subcontractors' claims and 12 percent of the costs and materials, pursuant to its contract with defendants Lacey.

Defendants Lacey filed a reply to defendant Basic Builders' counterclaim against them and two separate answers by way of counterclaim against Basic Builders, contending they had paid Basic Builders an amount in excess of the contract price and demanding damages for breach of warranty by reason of negligent and unworkmanlike construction on the part of Basic Builders.

Defendants Lacey also filed a reply to defendant Spoor's counterclaim and defendant Basic Builders filed a reply to defendants Lacey's two counterclaims.

The case was tried to the court as a suit in equity, and no contention was made against the pleadings.

The trial court's decree ordered the liens of plaintiff Farrell and defendant Spoor foreclosed and awarded each party $500 attorney fees. The court's decree reduced the first lien claim of Basic Builders in the amounts of $943.46 and $464, representing the satisfied claims of Farrell and Spoor, respectively, and by the further sum of $439.69, representing a payment received from the Laceys. The court also reduced Basic Builders' first lien in the amount of $5,160, representing 12 percent of the construction costs, to $1,500. The lien was ordered foreclosed in the amount of $2,093.44, together with $500 attorney fees. On the second lien of Basic Builders the court eliminated the claim for 12 percent of the costs of construction and ordered foreclosure of the lien in the amount of $1,101.91 but made

no allowance for attorney fees. The counterclaims of the Laceys were dismissed with prejudice.

The Laceys appeal from the adverse decree and contend the court erred "in not finding the completion date of the residence to be November 17, 1970"; "in finding that the defendants' [sic] Laceys, were their own contractors"; and in "rewriting the ...


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