S. A. Sorensen Construction Co. v. Broyhill

87 N.W.2d 439, 165 Neb. 744, 1958 Neb. LEXIS 8

• Court: Nebraska Supreme Court
• Decided: January 10, 1958
• Docket: No. 34187
• Status: Published

Opinion

Yeager, J.

On a review of the record on rehearing we conclude that certain additional credits should be allowed against the amount of the mechanic’s lien as determined by our former opinion.

Plaintiff and the defendant, Roy Broyhill, entered into a written agreement whereby defendants were to pay a materialman’s lien filed by G. F. Hughes & Son. The amount paid on this lien on July 13, 1953, was $5,117.87. In our former opinion we allowed only $4,943.81. Under the terms of the agreement the full amount paid should have been allowed as a credit to the defendants. An additional credit of $174.06 is therefore allowed on this item.

The record shows that plaintiff installed a 4-inch box gutter to carry water from the roof. The gutter was improperly installed and had to be replaced at a cost of $444. This item of expense to the defendants should be and is allowed as a credit on the amount due the plaintiff.

The evidence shows that plaintiff made a charge of $216.38 for installing a heat duct from the furnace. This item was unauthorized by the defendants and is not a proper charge. It was clearly the result of improper supervision by the plaintiff and should be surcharged against plaintiff’s claim.

The amount of these three items is $834.44. The 'amount found due by our former opinion should be reduced by this amount. We now find the amount due plaintiff to be $5,266.03, and our former opinion is modified to this extent. With this modification our former opinion is adhered to and the motion for a rehearing overruled.

Former opinion modified. Motion FOR REHEARING OVERRULED.