Hill v. Clark

[610]

ALLEN, P. J.

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