Cummings v. Ross

Foote, C. This action is to foreclose a mechanic's lien, and the complaint sets forth two counts,—the first [69]for the recovery of $163.72, unpaid, under a contract for $525, and the second for recovery on a quantum meruit of a balance of $213.83, unpaid, of the stun of $567.55. Attorney’s fees for one hundred dollars, and costs, are also claimed.

The defendant Ross, in his answer, among other things, admitted the contract for $525, and claimed to have paid all he owed thereunder, and alleged another contract to have been made between the parties for $325, which included all of the work done and performed as to the second cause of action stated, and further alleged that the whole sum due the plaintiff by defendant, upon any ground, was the sum of $109.50, of which tender of payment had been made to and refused by the plaintiff.

The question as to what amount was due for all the work done was, by consent of both parties, upon a suggestion of the court, submitted to a jury, who, upon that special issue, found for the plaintiff in the sum of $289.15.

By inadvertence, the clerk entered up a judgment upon this verdict, when the other issues as to the existence of a mechanic’s lien, amount of attorney’s fees due, counterclaim set up by defendant, etc., remained undetermined by the court. Upon this being brought to its attention within a reasonable time, the judgment was set aside, and evidence had as to the other matters involved. Thereupon the court adopted the advisory verdict of the jury upon the specific matter therein involved, and made findings as to the other issues, upon which a decree and judgment was duly given, made, and entered, enforcing the lien, etc. From that, and an order denying a new trial, this appeal is taken.

The first point made for a reversal of the judgment and order is, that the evidence is insufficient “ to sustain the judgment.” The reason given in the appellant’s points and authorities being, that each cause of action [70]was based upon work performed in constructing a different story of the building; that the evidence did not show the extent of extra work done upon each story; and as the defendant claims no extra work under the contract was to be allowed as to the work performed on one of the stories, the judgment cannot stand.