Kuhlman v. Burns

Belcher, C. It is alleged in the complaint in this case that between the twenty-sixth day of March and the twenty-ninth day of September, 1894, plaintiff furnished for defendant, and at his request, materials and [470]labor for the construction of a three-story brick building in the city of Sacramento, and that the balance remaining due and unpaid for the reasonable value of such materials and labor is the sum of fourteen hundred and fifteen dollars and thirty-seven cents, for which judgment is asked with interest. The answer denies all the allegations of the complaint, and alleges that during the year 1894 defendant employed plaintiff as a mechanic to do certain labor in and upon the premises described in the complaint, and that he paid to plaintiff all the money agreed to be paid to him on that behalf, and is not now, and has not at any time since the completion of the work by the plaintiff on said premises been, indebted to him in any sum whatever.

The court found the value of the materials and labor, furnished by plaintiff for defendant in the construction of the said building, and the amount paid by defendant on account of such materials and labor, leaving a balance of fifty-four dollars and sixty-one cents still due and unpaid, for which sum judgment was entered in favor of the plaintiff.

The plaintiff moved for a new trial upon the grounds of errors in law occurring at the trial, insufficiency of the evidence to justify the decision, and newly discovered evidence. After a hearing the court granted the motion, and from that order the defendant appeals.

It appeared from the evidence introduced at the trial that the plaintiff was a building contractor, and that he entered into a written contract with defendant by the terms of which he was to furnish all the materials and labor, with certain' exceptions, necessary for the construction of the building, according to certain plans and specifications, for a sum exceeding one thousand dollars. The contract was filed in the office of the county recorder, but the plans and specifications, which, by the terms of the contract, were made a part of it, were not so filed. The plaintiff contracted for all the materials and labor used by him in the construction of the building, and the defendant paid for the same ac[471]