Johnson v. Seelye

SHAW, J.

In this action the complaint contains two counts. By the first cause of action plaintiff seeks to recover the sum of $863, alleged to be the reasonable value of a certain line of concrete pipe laid and constructed upon defendants’ premises at their special instance and request; and by the second cause of action recovery is sought for the construction of another line of pipe for which defendants, as alleged, agreed to pay plaintiff $73.80. In addition to denying the allegations of the complaint, defendants filed a cross-complaint wherein they alleged the employing of plaintiff to lay both lines of pipe, which were by him to be completed by June 1, 1917; that he failed to comply with his contract in that behalf, as a result of which defendants were damaged in the sum of $2,000; all of which plaintiff, by his answer to the cross-complaint, denied.

[794]

The court made findings adverse to defendants, upon which judgment followed for plaintiff, and from which defendants appeal, basing their claim for a reversal upon the ground alone that none of the findings are supported by the evidence.

The contention is without merit. That plaintiff performed the work and laid both lines of pipe appears without conflict of evidence, and the only reason assigned by defendants for not paying therefor, upon demand of plaintiff, was, according to the testimony of defendant Margaret C, Seelye, that they had not received returns from their dried fruit and did not know how much they were damaged by plaintiff’s failure to construct the pipe-line by June 1st. “That is why,” said the defendant, “we did not pay the bill. ’ ’ Defendants did not question the fact that plaintiff had done the work alleged, nor the amount due therefor. Their sole contention was that the pipe-lines were to be completed by June 1st. As to this, however, counsel concedes a substantial conflict of evidence thereon; hence it cannot be said the finding that no agreement was made to complete the line by such date is without support. Neither can it be said, upon this record, that defendants’ fruit'was damaged as the result of an unreasonable delay on the part of plaintiff in constructing the pipe-lines. .

Objection is made that no evidence was offered in support of the finding as to the sum due from defendants to plaintiff for the work done and performed. While this is true, the production of evidence in support of the issues as to which such finding was adverse to defendants was, in open court, waived by counsel for defendants, who said: “We make no objection as to the amounts claimed,” followed by this interrogatory from the court: “Either as to the first cause of action, or the second?” to which defendants’ counsel replied: “No, your Honor. There may be a small difference, but, as the witnesses say, it is not material.” After making such statement, the effect of which was- to concede the correctness of the amount claimed to be due in each count of the complaint, plaintiff was not called upon to make further proof of such allegation, and defendants are in no position to question the finding upon the score that the evidence is insufficient to justify the same.