Zachary v. Chapman

BURROUGHS, J.,

pro tem.

This is an appeal by the plaintiffs from a judgment in favor of the defendant Chapman. The appeal is taken upon the judgment-roll alone. Two causes of action are stated in the complaint. The first is to foreclose a mechanic’s lien; the second is in

quantum meruit.

In the first count it is alleged that the plaintiffs and defendant Chapman entered into a contract by the terms of which, for a consideration of $247 to be paid to them by the defendant, the plaintiffs agreed to furnish, lay, scrape, sand and finish complete, the hardwood flooring in a residence then being erected for the defendant. It is further alleged that plaintiffs have fully performed all of

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the terms and conditions of said contract to be performed by them, but that the defendant has failed and refused to pay said sum of $247, or any part thereof. The second count of the complaint alleges the reasonable value of said materials and labor to be the same in amount as the contract price. The answer of the defendant Chapman admits the making of the contract, and also admits the nonpayment of the contract price, or any portion thereof. The answer further alleges that the contract provided that plaintiffs were to furnish the best grade of plain white oak flooring, and that the work of scraping, sanding and finishing complete, said hardwood flooring, would be of the highest grade, and of first-class workmanship; and denies that the plaintiffs furnished the best grade of flooring; and alleges that over the protest of the defendant, plaintiffs furnished a very inferior grade of flooring and installed it in the house, and that the work was done in a very poor manner, and not in conformity or in accordance with said agreement. It is further alleged in said answer that in laying said floor, plaintiffs damaged the premises and property in said house, which they had agreed should not be done, and that said damage consisted of punching holes in the sanitas cloth and plaster that was on the walls, and in defacing the baseboards in the rooms at various places, and in the improper installation of a threshold which permitted the collection of water and dampness, and thereby ruined a large front door.

Defendant denies the allegations of the second count of the complaint, and by way of a counterclaim for damages alleges, in detail, a total damage to the building through the fault of the plaintiffs in performing said work in the sum of $449. Defendant further alleges that in laying and finishing said flooring, that it was not properly fitted and joined and scraped, and on account thereof there were wide cracks and pieces chipped or knocked off the ends of the flooring where they joined, requiring a great deal of filling to be inserted, which is of a temporary nature, and that the floor is uneven and wavy; that in the construction of the other portions of the building defendant used the very highest grade of material obtainable, and that the low grade of flooring and poor workmanship used by the plaintiffs in