This is an appeal from a judgment, the evidence taken at the trial being presented in a bill of exceptions.
The action was one brought by plaintiff to foreclose a lien on account of certain work and labor performed in grading a tract of land under a written contract with defendant, the owner. This contract specified the exact lines of grade to which the premises should be brought, and for which work the plaintiff was to receive $1,000 upon completion. Upon the trial the plaintiff did not show that he had complied with the contract in any manner other than as required by his construction thereof, which was that, when he had taken off the earth from the high places and with it filled in the low places to the extent of the material within the lines of the work, he had done all that was required of him by the contract; and the court permitted plaintiff, under objections, to introduce testimony tending to show that the word "grade," as used in the contract, had by the custom of business no other construction than that given it by plaintiff; that by the use of the word "grade" in the contract it was never intended to require that dirt should be hauled from the outside.
At the conclusion of the plaintiff's testimony defendants moved for a nonsuit upon the ground that the plaintiff had failed to show that the contract set out in the complaint had been substantially fulfilled or completed, which motion was denied, with an exception. Thereupon, defendants introduced testimony tending to show the extent to which the work had been done and the amount of labor and expense incident to its entire completion; and plaintiff was permitted to introduce testimony in rebuttal in connection with such question of completion and cost.
At the conclusion of the testimony, the court filed its findings of fact, wherein it found that plaintiff furnished and performed the labor agreed to be furnished and performed, and substantially performed said contract according to its terms; that in the performance of said contract plaintiff failed to grade the property exactly to conform to the lines specified in said contract; that plaintiff endeavored in good faith to perform said contract; that defendants would not permit plaintiff to cut certain high places to the specified grade, which, had he been permitted so to do, would have provided *Page 611 sufficient dirt on the property to bring the entire property to the grade specified in said contract; that plaintiff failed to bring in dirt to fill up the low places on said property; that the defect is one that can be remedied, and the damage caused by the failure of plaintiff to bring in dirt, including the cost of supplying the deficiency, amounts to the sum of $150; that such sum would correct the work done by said contractor to make it conform to the contract aforesaid. And, as a conclusion of law, the court found that plaintiff was entitled to judgment for $650, being the amount of the contract price less a payment of $200 theretofore made, and the $150 necessary to an entire completion of the contract, together with $2.45 paid for verifying and recording the claim of lien and $50 for attorneys' fees; and a decree for the sale of the property in the ordinary way on default in the payment of such judgment.
The findings are not attacked by any specifications of error relating to insufficiency of evidence for their support.
The principal contention of defendant upon this appeal is, that the judgment should be reversed because of the action of the court in denying the motion for nonsuit. In a former opinion filed in this case this court reversed the judgment of the trial court upon the ground that such motion for nonsuit should have been granted. Upon a rehearing of the case, however, we are satisfied that we overlooked the effect which should be given the findings of fact. While it is true that the court would have been warranted in granting the motion for nonsuit when made, yet sufficient appears in the record to show that the omission of the requisite proof upon the part of plaintiff in the first instance was supplemented by subsequent evidence properly received upon the trial; and, under the well-established rule, such subsequent proof will have the effect to cure the error in denying the original motion. The rule is well established that in cases of this character the performance of a contract need not in all cases be literal and exact in order to entitle a plaintiff to compensation therefor; that a substantial performance is all that is required. (Harlan v. Stufflebeem, 87 Cal. 512, [25 P. 686].) "Whether the contract has been substantially performed is a question of fact which must be determined by the trial court in each instance from the facts and circumstances in that case, and the *Page 612 finding of the trial court upon that point is as conclusive as is its finding of any other fact." (Schindler v. Green,149 Cal. 755, [87 P. 627].) The findings not being challenged as unsupported by the evidence, we must, therefore, accept the same as conclusive upon the question of good faith and substantial completion. While findings of fact are not proper on a motion for nonsuit, yet, under the circumstances of this case, in determining whether or not the subsequent proof has supplied any omission in the plaintiff's testimony, we may look into the findings to determine that fact, rather than into the evidence in the bill of exceptions as the evidence to support such findings will be presumed to have been introduced. In the light of subsequent events, therefore, there was no prejudicial error in denying the motion for nonsuit.
It is further insisted by appellant that the court erred in admitting the testimony of witnesses as to the construction to be given the word "grade" in a contract where the same specifically states the exact grade to which the property should be brought. We quite agree with appellant in this regard. There was no room for construction. The contract was specific as to the lines to which the grade should be brought; but, looking again into the findings we see that the court finds that there was sufficient dirt on the ground to bring the property to the precise grade fixed in the contract. Hence, the evidence offered as applicable to cases where there was an insufficiency of earth could not prejudice defendant in this case.
We perceive no error in the action of the court sustaining the objection to a question asked defendant, as follows: "Can you state to the court how much and to what extent you have been injured by the failure of the plaintiff to complete this work; the question is, can you tell?" The contract provided for a fixed sum as liquidated damages for delay in the completion of the work beyond the time specified in the contract. No issue was presented as to the amount of the liquidated damages, or claim on account thereof, and the question objected to could have no reference thereto; and the court finding that the contract was substantially completed, there was no room for inquiry as to the damages, and no prejudice could result to defendant from such ruling.
The appeal from the judgment, however, presents the question involved in an allowance of attorneys' fees. InBuilders' *Page 613 Supply Depot v. O'Connor, 150 Cal. 265, [119 Am. St. Rep. 193,88 P. 982], it is held that an attorney's fee cannot be allowed in the foreclosure of a mechanic's lien, even though provided by statute. The same reasons which impelled that decision are applicable here, and the court erred in awarding an attorney's fee.
The judgment of the superior court is, therefore, modified by striking therefrom the words, "and for the further sum of $50 hereby allowed said plaintiff for attorneys' fees in this action"; and, as so modified, is ordered affirmed, appellant to recover costs on appeal.
Shaw, J., and Taggart, J., concurred.