Bailey v. Norton

The opinion of the court was delivered by This was an action to foreclose a mechanic's lien against real
estate. The appeal is from an order overruling a demurrer to the
petition as amended by supplemental allegations. Omitting formal averments, the prayer, paragraphs identifying
the parties, and other paragraphs describing the real estate and
the status of its title, the petition reads:

"(3) Plaintiff is and was at all times herein
mentioned carpenter, architect and builder and that
on the 20th day of March, 1952, plaintiff and
defendants entered into a written contract whereby
the plaintiff agreed to supervise the construction of
a dwelling house for said defendants upon the
premises hereinafter described and said defendants
were to furnish all material and labor therefor. That
the defendants agreed to pay the plaintiff the sum of
10% of the cost of construction of said dwelling not
to exceed the amount of $36,500.00 except as
otherwise specified in said contract. Further, said
contractor agreed to pay to the said plaintiff or
said superintendent the sum of $100.00 per week after
the construction was commenced which sum to be
credited against the commission due under said
contract to the superintendent. A copy of said
employment contract is hereto attached, marked
Exhibit `A-2', and made a part hereof by reference as
if fully set out herein.

"(4) That the plaintiff commenced said dwelling in
accordance with said contract and performed all the
conditions of said contract on his part to be
performed at the request of said defendants. That the
total cost for said dwelling for labor and material
was $48,279.96, which is in excess of said contract
in the amount of $11,779.96, and said sum is for
extra work or alterations done at the defendants'
request and for which the defendants promised to pay.
That there has been paid to the plaintiff pursuant to
said contract 10% of the cost of said amount,
$3,992.72, and there remains a balance due from said
defendants to the plaintiff on said contract in the
sum of $2,346.80.

"(7) That the defendants above named have failed
and neglected to pay the plaintiff any part of the
balance due on the contract for services rendered in
the construction of said building except the sum of
$3,992.75, which last payment was on or about the
15th day of December, 1952, and that there is now due
and owing from the defendants to the plaintiff above
named the sum of $2,346.80 with interest thereon at
the rate of 6% per annum.