Michel & Pfeffer v. Oceanside Properties, Inc.

Williams & Burrows (contractor), Fireman’s Fund American Insurance Companies (surety) and Oceanside Properties, Inc. (owner) appeal from a judgment in favor of respondent Michel & Pfeffer (subcontractor). Michel & Pfeffer commenced this action against appellants for payment on a bond, foreclosure of a mechanics lien and common count based on work performed. The judgment ordered the contractor and surety to pay respondent the sum of $47,744.55 prior to July 27, 1975, or upon the earlier sale of the property, giving respondent a lien upon the property in the amount of the sum due, and directing foreclosure of the owner’s interest in the property if judgment was not satisfied within time specified.

I

Appellants contend that the trial court erred in construing the two subcontracts (between respondent and Williams & Burrows) to require payment of the final 15 percent retention within two years of the completion date of the project, July 27, 1973, or upon sale of the building, whichever occurs first.

It is undisputed that the sum of $47,744.55 is owed to respondent under the contracts. The trial court found that: “9. On or about August 20, 1970, defendant W & B entered into…