Carpenter v. Markham

HENSHAW, J.

This is an appeal from an order denying plaintiff’s motion for a new trial. Plaintiff, as contractor, entered into a contract with Carrie B. Shortman, since and now by marriage Carrie B. Markham, to construct for her a dwelling-house. In recompense he was to receive the total sum of $6,440, payable in four separate installments of $1,610 each, the last payment to be due and payable, under the mechanic’s lien law, thirty-five days after the completion of the work. In terms the contract between the parties provided that compensation for additions, changes, and extras shall be agreed upon between the parties “at a fair and reasonable price . . . and the owner shall give the contractor

[113]

written authorization for the work, setting forth the changes to be made, the price to be paid and the extra time allowed for its execution.....This authorization shall be signed by both parties to the contract and shall be binding upon both. No extras will be allowed without agreement for the same. Changes thus made shall in no wise alter, make void, or in any other way affect the standing of the original contract. ’ ’ After the completion of the building and the payment by the owner of the last payment of $1,610, plaintiff contended that there was due him $540.21 for and on account of extra work. Defendant denying this, the present action followed. The court heard the evidence of plaintiff and of plaintiff’s witnesses tending to show that all the items charged for in the extra work, material, and labor performed were actually supplied and performed, and that the reasonable value was the amount sued for. Evidence was also offered that when plaintiff made his demand upon defendant after payment by defendant of the $1,610 final payment, defendant did not question her liability to pay for these extras, but questioned only the amounts charged for them. The defendant, W. F. Markham, now the husband of defendant, Carrie B. Markham, and at the time her man of affairs, was the one through whom these negotiations were carried on and with whom these discussions were had. Indeed, there is in evidence a letter from defendant, W. F. Markham, admitting some liability on account of these extras, and declaring that when the plaintiff had finished some other work upon which he was engaged for defendant, defendant had expressed his intent to “settle with him fair and square and was willing to pay him more than his due; that we would get together personally or by friendly arbitration if necessary.” This evidence, legally sufficient to establish plaintiff’s contention, was admitted under objection and subject to defendants’ motion to strike it all out. Subsequently, and upon defendants’ motion to this end, the court did strike out all of this evidence and gave judgment, so far as these controverted matters are concerned, for defendants.