Smith v. Murphy

THE COURT.

This action was brought to foreclose a mechanic’s lien asserted to be due for extra labor and material used in the construction of defendant’s residence. The whole of the original contract price had been paid. The contract provided that any additions or extras not mentioned in the contract should be added to the contract price. Defendant filed an answer and cross-complaint. After trial judgment

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passed for plaintiff and from that judgment and from an order denying his motion for a new trial defendant appeals.

Plaintiff’s original complaint, in setting forth the items of extra work and material and the values thereof, declared that no prices for these items had been agreed upon but that after completion of the building the defendant agreed to pay the balance due on account of this extra work and material. Shortly after the trial of the action began plaintiff sought and obtained leave of court to amend this averment by alleging that after the work was completed the defendant had agreed to pay a named and specified sum therefor. Appellant first complains of the injury inflicted upon him by the court in allowing this amendment, and in so doing denying a continuance of the action and a trial by jury. An inspection of the record shows that plaintiff’s attorney was willing to accord any reasonable time to defendant to gather his evidence to meet the changed form of the issue, but it appears from the statement of defendant’s attorney that all that he expected to show was that the defendant at the time he signed the statement agreeing to pay the specified amount was in such a condition of ill health as not to know what he was doing. It required no extension of time to produce this evidence since naturally it would be the evidence of Mr. Murphy himself. And, it may be added that plaintiff’s attorney agreed in open court that if later in the case a continuance should become necessary for this purpose he would readily assent to it. The amendment did not entitle the defendant to a trial by jury.

Appellant argues that as to certain items the findings are not supported by the evidence. We need not particularize upon these matters, since it would carry this opinion through an entirely useless detailed consideration of numerous small items of labor and material and the value thereof. It is sufficient to say that the findings are supported in some instances and in others there are no specifications of insufficiency so as to justify our consideration of them.