Beley

Real party in interest Gerry Harmsma (hereinafter Seller) is a building contractor who brought an action in the municipal court to recover for services performed and material furnished in remodeling the home of appellants John and Lorraine Beley (hereinafter Buyer). Buyer moved for summary judgment, which the municipal court denied. Buyer sought a writ of mandate from the superior court to compel the municipal court to grant Buyer’s motion for summary judgment. Buyer appeals from the superior court’s denial of the writ.

On June 10, 1977, the parties executed a contract, at the home of Buyer, for the remodeling of Buyer’s home. The contract price was $11,689 and the work was to be completed by August 15.

The work was not completed on time, and on November 10, 1977, Buyer gave written notice that the contract was canceled.

Seller brought an action in municipal court alleging three causes of action and seeking damages of $3,000 (Buyer having already paid Seller $8,566). Seller’s first cause of action was on the contract; the second cause of action was a common count for services performed and materials furnished at the special request of Buyer; and the third cause of…