Brubaker v. Mallickzadha

SCHOTTKY, J. pro tem. Plaintiff filed an action against defendant in the justice’s court alleging that he had rendered services to defendant for which he was to receive $15 per day; that the total of wages earned amounted to $1,533, and that there was a balance of $743.83 due him from defendant.

Defendant filed a demurrer to the complaint on the ground that it could not be ascertained whether the contract was oral or in writing. The demurrer was overruled. Defendant filed a cross-complaint alleging a written agreement by which plaintiff undertook to remodel defendant’s kitchen and build a new sunroom, furnishing and paying for all labor and material necessary, defendant to pay plaintiff the cost of all materials plus $15 per day per man, provided defendant should not be required to pay more than $2,850; that plaintiff proceeded to do the work, purchasing large quantities of materials for which [781]he did not pay so that defendant was required to pay for labor and materials himself, expending $4,232; that in addition defendant paid plaintiff $1,000 for his services; that as a result defendant has been damaged in the sum of $2,382. The prayer is for that amount. The answer refers to the same written agreement and alleges that plaintiff did not have a contractor’s license; that under the terms of the contract defendant could withhold payment of $500 until the job was completed and plaintiff delivered to him receipted bills for all labor and material furnished, and that plaintiff has never delivered such receipted bills; that all sums due plaintiff under the said agreement have been paid. A copy of the written agreement is attached to both the answer and the cross-complaint. The case was transferred to the superior court. Plaintiff’s demurrer to the cross-complaint was overruled. In plaintiff’s answer to the cross-complaint it is alleged that the written agreement was rescinded; that thereafter it was agreed that plaintiff would work for defendant as an employee, being paid $15 a day as wages; that the balance unpaid for plaintiff’s services is $745.83; that the $1,000 paid by defendant was paid to plaintiff and his two sons to be applied on account of labor performed by them; that plaintiff is not indebted to defendant in the sum of $2,382 or any other amount.

Defendant having died while the action was pending, his administratrix was substituted as defendant and cross-complainant. The case was tried by the court without a jury and before the close of the trial the cross-complaint was dismissed on motion of defendant.