Barnwell v. Kempton , 22 Kan. 314 ( 1879 )

The opinion of the court was delivered by

Hokton, C. J.:

A very extensive record is presented to us in this case, and our attention called to nunierous allegations of error; yet, upon a careful examination of the proceedings of the trial court and the briefs of counsel, we find very little demanding any comment, and nothing in the record requiring a reversal of the judgment. The case turned almost wholly upon controverted questions of fact, and we have decided so often that this court will not disturb-a judgment as against the evidence, even when the evidence seems to preponderate the other way, that it is unnecessary to refer to the testimony further than to say there was evidence before the court to prove every fact necessary to sustain the judgment.

The main allegation of error made by counsel is, that the court erred in overruling the demurrer of the defendant below to the evidence introduced by the plaintiff. In support of this alleged error, counsel say:

1st. Plaintiff failed to have what he did do completed until thirty-two days after the time fixed by the contract, and that time was regarded as of the essence of the contract.

2d. That he did not replaste.r the building as he agreed to do; and,

3d. That he placed the building on a stone foundation, without knowing or caring to know whether it was level or not.

As to the first objection, it is sufficient to say, that while the plaintiff agreed to complete the contract within forty days from its date, it was further stipulated that for each and every day’s delay after the expiration of the' forty days, he was to pay a penalty of six dollars. Therefore, for the delay of thirty-two days, the defendant was entitled to $192 as liquidated damages, to be taken from the amount due the plaintiff; but the fact that the evidence disclosed such delay, was no ground to sustain a demurrer to the evidence.

The other objections to the evidence of plaintiff relate to a failure to perform his work in full compliance with the terms of the .contract. On the side of the plaintiff it is asserted, that as he plastered all that was necessary with three coats, and that-all the .old plastering left on was good, and as the new foundation was better than the old one, the contract was fully completed on the part of the plaintiff, as he was only required to place the building after removal in all respects as good as before. Conceding, however, that the plaintiff should have replastered the whole of the building and leveled the foundation, his failure so to do would not be fatal to his recovery in the case. According to the claim and evidence of the plaintiff, there-was an honest intention to go by the contract, and a substantia], if not an exact, execution of it. It is well settled, that where one party has entered into a special contract to perform work for another and furnish materials, and the work is done and the materials are furnished, but not in the manner stipulated for in the contract, so that he cannot recover the price agreed on in the contract, yet, if the work and materials are of any value and benefit to the other party, he may recover for the work done and for the materials. This is upon the principle that if the other party has derived a benefit from the part performed, it would be unjust to allow him to retain that without paying anything. 2 Pars. Cont. (6th ed.), 523; Duncan v. Baker, 21 Kas. 99.

Another point made by counsel is, that the court below erred in not sustaining the motion of the defendant to have Sweet & Stone,, two sub-contractors, made parties defendant in the action. The record shows that the defendant, in his answer, alleged that G. H. Sweet and F. R. Stone, late partners as Sweet and Stone, duly filed a lien on the premises of defendant on January 9, 1877, for the sum of $300 for labor and services, as mechanics and sub-contractors of plaintiff; that on the trial the defendant moved the court to make said sub-contractors parties defendant, and to cause them to appear in accordance with the prayer of the answer; that the plaintiff admitted in court that Sweet & Stone had filed a lien for work done on the building as sub-contractors: thereupon the motion was overruled. Ordinarily this would have been material error, and sufficient to reverse the judgment; but, considering the result of the case and the inferences plainly drawn from the actions of the court and parties, we do not think the error was prejudicial to the plaintiff in error. The plaintiff originally claimed judgment in his petition for $1,500 and interest; when he submitted the case to the court, he reduced his demand to $1,100. The lien of $300 was admitted by all the parties; there was no controversy over the amount. The court had the right to deduct this sum from the amount due to the plaintiff, as such sum of $300 was set up in the answer. No special findings were asked for, or made, and as the court assessed' the recovery at only $600, with interest from November 9, 1876, considering the admissions of the parties to the amount of the lien, we think we may fairly assume that the lien of $300 was deducted from the sum due for the work and materials. If this was the fact, the only person who could complain would have been, the plaintiff below, not the defendánt. Hence no error was committed to-the prejudice of the defendant’s rights.

We have examined the other questions presented, but in-the condition of the pleadings and record, we think nothing further need be said.

The judgment of the district couj;t will be affirmed.

All the Justices concurring.