Bernstein v. Angeletty , 125 Miss. 656 ( 1921 )

Holden, J.,

delivered the opinion of tlie court.

The appellee, Angeletty, sued the appellant, Bernstein, for ninety-eight dollars as a balance due appellee for the building of a barn. Bernstein defended on the ground that Angeletty was due him more than the amount sued for, on account of the failure of Angeletty to build the barn according to the contract. Bernstein appeals from the judgment against him.

The appellee, Angeletty, plaintiff below, testified at the trial that he contracted to build the barn for five thousand dollars, apd that he had constructed the building according to the contract, and Bernstein was due him a balance of ninety-eight dollars. He further testified on cross-examination that Mr. Bost, an architect, had drawn the plans and specifications for the building, but that he had not signed the plans and specifications, as they had been modified and changed by agreement between him and Bernstein.

The appellant, Bernstein, testified that the building was to be constructed according to the said plans and specifications of Architect Bost, for the sum of five thousand dollars; that the contract was in writing, which he introduced in evidence, and reads in part as follows:

“Witnesseth, that the said contractor agrees to furnish all necessary materials with the exception of electric wiring and plumbing and to do all work required to build a brick stable on the north side of Main street, Natchez, Mississippi, owned by said Bernstein, the said work to be-done in a workmanlike manner as soon as possible after this date and the said work and material will be strictly according to plans and specifications for said stable drawn by It. E. Bost and bere referred to and which said plans and specifications have been signed by the partieshereto for identification.” •

“The price of said work completed to be the sum of five thousand ($5,000) dollars. Payment to be made to said contractor as follows,” etc.

This contract was signed by both parties, but the plans and specifications mentioned therein, which were said to be signed by both parties for the purpose of identification, were never signed by either party. Appellant, Bernstein, testified that the appellee, Angeletty, had failed in many respects to comply with the contract according, to the plans and specifications, which resulted in damage to Bernstein in a sum greater than the amount sued for by plaintiff. Bernstein offered the plans and specifications in evidence, but upon objection by plaintiff the court refused to allow their introduction, and this action of the court is assigned for reversal. ,

' It seems that the lower court refused to permit the introduction of the plans and specifications because they had not been signed, for identification purposes, by the parties. It appears, however, from the testimony of the appellant, and the written contract between the parties introduced in evidence, that the plans and specifications drawn by Architect Bost are the plans and specifications mentioned in the written contract, and that the building was constructed according to them; whether the construction was to be according to the original plans as testified by Bernstein, or whether the construction of the building was to be by the modified plans as testified to by An-geletty, was a question of fact about which there was a conflict in the testimony, and should have been determined by the jury. Therefore we think the court erred in not permitting the introduction of the plans and specifications in evidence.

The appellee, Angeletty, could recover only upon his written contract; and1, while he attempted to recover on an oral contract, there being no objection by defendant. vet when the written contract was introduced by Bernstein, which showed the terms of the contract, and that the construction of the building was'to be according to the plans and specifications of Architect Bost, then the appellant Bernstein should have been permitted to introduce the plans and specifications in making out his defense so that he might be enabled to show the jury where in the appellee Angeletty, had failed to comply with the contract. Acting under the plans and specifications amounted to a waiver, and made them admissible in evidence, because the plans and specifications were part of the contract, and the building was constructed according to them, either as originally drawn or as modified. They were the only plans and specifications ever in existence, according to the record, and were! very material evidence to the defense.

The judgment of the lower court is reversed, and the case remanded. '

Reversed and remanded.