Roebling Construction Co. v. Doe Estate Co.

The action was brought to recover a balance of $12,039.75 alleged to be due upon the contract price for concrete work performed on the Wiley B. Allen Building in San Francisco. The complaint sets forth in haec verba, the contract upon which the action is based. Among its provisions are the following:

Paragraph 4 of the complaint was amended during the trial to read as follows:

The answer set up the defense of nonperformance. A cross-complaint was also filed by defendant alleging damages: (1) Cost of linoleum laid down to minimize the damages; (2) Loss of rentals; (3) Estimated cost of completing the work required by the contract, amounting in all to $19,753.20. As the decision of the court was against the defendant upon the issue of performance it necessarily disposed of the claim for damages. Says the brief of defendant: “If the decision thereon be upheld, the litigation will be concluded in all respects ; if the court shall hold that the plaintiff did not perform, the matter will be at large and a new trial of all issues will be in order.”

The controversy involves only the work done in the construction of the top cement finish upon the third, fourth, fifth, and sixth floors…