Fidanzo v. Bailey

556 P.2d 1361, 276 Or. 963, 1976 Ore. LEXIS 718

• Court: Oregon Supreme Court
• Decided: December 16, 1976
• Docket: No. 34-699, SC 24268
• Status: Published

Opinion

PER CURIAM.

Plaintiff brought this suit to foreclose his mechanic’s lien for landscaping services. The defendant homeowners contested the amount of the claim and claimed a setoff because of faulty workmanship. The defendants are dissatisfied with the decision on both aspects of their defense and appeal.

This is in equity; therefore, we try the suit de novo. However, the trial court’s findings on issues in which the evidence is conflicting are persuasive.

The evidence in this case was conflicting on the issues of whether the parties had contracted for a firm price of $6,550, whether the reasonable value of plaintiff’s services was $10,703, and whether defendants were entitled to an offset of $4,615 because of plaintiff’s defective workmanship. The trial court found there was no firm price; that $10,703 was the reasonable value of plaintiff’s services; and that the defendants were entitled to a set-off of $500 because of defective workmanship. The trial court’s findings are persuasive and we, therefore, affirm the judgment of the trial court on these issues.

The trial court awarded plaintiff $2,200 as attorney fees. The parties stipulated that attorney fees could be fixed on the submission of time records; however, plaintiff also introduced expert testimony that a reasonable fee would be approximately $3,000. We find the award of $2,200 was reasonable.

Defendants also claim the trial court erred in permitting plaintiff to amend his prayer for attorney fees from $1,475 to $2,200 at the close of the evidence. The amendment was made to conform to the proof and was within the power of the trial court. ORS 16.390; Cont. Plants v. Measured Mkt., 274 Or 621, 547 P2d 1368 (1976).

Affirmed.