Jones

This action is one to foreclose a contractor’s lien and recover a balance claimed to be due in the sum of $2,757.88 on the construction of an apartment house in the city of Los Angeles. Defendant in her answer sets up the defense that the contract was procured by plaintiff through fraud and misrepresentation; that plaintiff represented that he was a licensed architect and a builder of skill and efficiency, when in truth and in fact he was not a licensed architect, nor had he at the time of entering into the contract—February 3, 1923—any experience in the building of apartment houses.

Under the terms of the contract on which this action is founded the plaintiff undertook to construct for defendant on certain property owned by her in the city of Los Angeles a 56-room apartment house. The contract is what is commonly referred to as a cost-plus contract, that is,, one whereby the owner agrees to pay for all materials and labor furnished thereunder, and in addition thereto a percentage thereon as compensation to the contractor for his services. In the contract here the percentage on the net cost of the materials and labor was to be ten per cent of the cost of the construction of the…