#### H. M. Darby *v.*G. H. Morrison

(No. 7114)

Submitted March 29, 1932.

Decided April 12, 1932.

*168
      *E. A. Bowers*and *E. L. Maxwell,*for appellant.

D. *II. Hill Arnold,*for appellee.

Woods, Judge:

This is a suit to enforce a mechanic’s lien. The lien filed was for $9,468.11, the difference between $12,033.78, the amount claimed to have been expended by plaintiff for materials and labor, including an item of $3,543.00 for personal services, and $2,565.67, with which defendant had been credited. The suit was originally for $9,205.14, but was reduced to $7,205.14, by the payment on account of $2,000.00 by defendant at the time of filing his answer. The chancellor entered a decree for $5,119.25, from which plaintiff appeals.

According to plaintiff, he undertook to purchase the necessary materials, hire all necessary machanics and other labor, superintend the construction thereof, and pay for all materials and labor. While he admits that the house was to be completed by January 1, 1929, at a cost of something like $7,000.00, he states that the cost of $13,672.77, which includes $1,638.89 in lumber furnished by defendant, and the fact that the building was not completed until August, 1929, were due to various changes, made at the instant of defendant and his wife, and the further fact that defendant did not make necessary pecuniary advancements thereon, making it necessary for plaintiff, because of his depleted funds, to do a great portion of the work personally.

The defendant’s view of the contract was that the building, including all labor and the lumber furnished, should not cost more than $6,986.06; and that the plaintiff would take care of the materials and labor until completion of the work. Defendant, however, admits additional liability to the extent of $2,215.27, the amount found by the commissioner *169to have been expended in labor and materials in making tbe alleged changes.

Tbe commissioner in ebaneery, to whom tbe matter was referred, beard a great volume of testimony in behalf of both litigants. In view of tbe material conflict as to tbe terms of tbe contract, be found that neither tbe plaintiff nor defendant bad substantiated bis claims in regard thereto, and thereupon proceed to determine their respective rights on a *quantum meruit*basis. To a finding in favor of plaintiff for $5,119.25, both parties excepted. The chancellor overruled tbe several exceptions, sustained tbe finding of tbe commissioner, .and entered a decree for tbe plaintiff thereon, including costs.

Plaintiff contends that be actually expended $8,490.70 for materials and labor (other than bis own), and is entitled to recover that amount on *quantum meruit,*regardless of what be might be entitled to for his own personal services. This position is taken on the theory that such expenditures are not disputed. It is apparent from the commissioner’s report that plaintiff was given credit for all expenditures for materials actually put into tbe bouse. However, in view of tbe unusual time consumed in tbe construction thereof, which militates against tbe equity of plaintiff’s claim, we are of opinion that tbe commissioner was warranted in dealing with tbe item of labor as' a whole. He found, from tbe evidence, that tbe labor on a building of such character will run about forty per centum of tbe total cost. So, tbe claim for $6,981.04 ($3,543.00 for personal services and $3,438.04 for employed labor) was clearly out of all proportion.

In arriving at tbe sum to which plaintiff was entitled, tbe commissioner took into account an average of tbe estimates of several witnesses as to what it would cost to build such a bouse. Tbe necessity for such a method in some cases has been recognized by this court. *Gay*v. *Gibson,*101 W. Va. 284, 132 S. E. 717. In that case, at page 291, tbe court said: “It is quite evident be (tbe commissioner) took tbe average price as fixed by all tbe witnesses, which on tbe whole ease was perhaps tbe best way to determine tbe fact.”

*170Defendant files cross-error. Tbis embraces, first, tbe contention that tbe lumber furnished by defendant was considered in tbe estimates of wbat *the*bouse should *have*cost at tbe current price, ratber than tbe price at wbicb be bad agreed to furnish same. However tbis may be, we cannot 'see from the record that tbe commissioner did not make due allowance for such difference, although be was guided to some extent by tbe several estimates. Secondly, tbe defendant complains that be is prejudiced by tbe court’s refusal to divide tbe costs. It must be remembered that the plaintiff has received a substantial decree and by tbe ordinary rules of procedure, having materially prevailed in bis suit, is entitled to an award of costs. "We see no merit in that claim.

Where a decree is based upon conflicting testimony, upon wbicb persons might reasonably disagree as to tbe facts proven, or tbe proper conclusions therefrom, tbe appellate court will decline to reverse tbe chancellor, although tbe testimony might be such that tbe appellate court may have pronounced a different decree, if deciding tbe case in tbe first instance. *Wolfe*v. Morgan, 61 W. Va. 287, 56 S. E. 504. And while it is our duty to set aside or reverse a decree unsupported by, or clearly against tbe weight of, tbe evidence, we are just as indubitably bound to restrict such review to tbe questions of law only where it is otherwise. There is a presumption in favor of tbe decree of a chancellor, and tbis presumption is entitled to special consideration when tbe decree is ■ based on conflicting testimony. *Ramsburg*v. *Erb,*16 W. Va. 787. Considering tbe great volume of testimony taken pro and con, tbe failure of tbe parties to reduce their contract to writing, and our inability to reason out a more equitable finding, it seems to us a case where the foregoing rule should be applied to tbe end of terminating litigation in the interest of all parties concerned.

*Affirmed.*