O'NEILL v. Frederick Trading Co.

Per Curiam. Mrs. O’Neill appeals from a judgment in favor of a materialman, Frederick Trading Co., (Frederick) for the cost of kitchen cabinets ordered by her contractor and installed by him in the home he was building for her. The contractor agreed to furnish all the materials and labor needed for the erection of a prefabricated home costing some $30,000. Mrs. O’Neill’s stove, refrigerator, washing machine ³⁰³ and dryer would not fit into the kitchen as it was designed, and this necessitated the replacement of some seven kitchen cabinets called for by the specifications of the house by fifteen cabinets of different shapes and sizes.

At Mrs. O’Neill’s request, the contractor ordered these from Frederick, who procured them on a special order from the manufacturer. The contractor became financially embarrassed and various materialmen, including Frederick, made demand on Mrs. O’Neill for the cost of the material they had furnished, either filing liens or threatening to file liens. There was testimony that the lawyer for Frederick personally served on Mrs. O’Neill a notice of intention to file a lien and that, in the course of a two-hour conversation with her, she said that the house was going to cost some thousands of dollars more than she anticipated but that not only would she pay Frederick but all the other creditors, and that the mechanics’ lien need not be filed. Frederick’s lawyer testified that as a result of her assurance, the lien was not filed.

The witness said further that she had called him twice later to repeat this assurance. She requested that a representative of Frederick make an inspection of the house to determine whether or not the items claimed had been installed. A representative did make this inspection, found that one cabinet billed was not installed and agreed to deduct its cost. The court, trying the case without a jury, found from the testimony of the witness who made the inspection that Mrs. O’Neill indicated that she was going to pay the account as corrected.

Mrs. O’Neill’s lawyer at the time (not her lawyer on appeal) said from the stand that he had told the lawyer for Frederick that it would not be necessary to file the mechanics’ lien because when it was ascertained what items on the bill were actually in the house, the bill would be paid. The contractor testified that at a meeting with Mrs. O’Neill and her lawyer, he had been presented with four papers which he took to be mechanics’ liens, one for each of four materialmen, including Frederick, and asked if it was all right with him if Mrs. O’Neill paid for those items on the lists direct. To indicate his agreement, he signed each document: