Russell Lumber & Supply Co. v. Grooms , 231 Ky. 544 ( 1929 )

Affirming.

The Russell Lumber Supply Company, which we shall call the plaintiff sued Mrs. Alice Grooms for $1,094.25 for building material it sold Philipps Simpson, which they used in remodeling a house for her. The court peremptorily directed a verdict for the defendant, and from the judgment which followed plaintiff appeals.

The evidence is that Mrs. Grooms employed Philipps Simpson to remodel a house for her. They were to do this work and furnish this material for $4,700. Plaintiff sold and charged this material to them. Plaintiff failed to file a lien for this material but sued Mrs. Grooms for the bill.

The peremptory instruction was properly given for two reasons: Plaintiff failed to prove Mrs. Grooms promised to pay for this material sold to Philipps Simpson, and also failed to allege she made such a promise, thus failing both in its proof and its pleading. To avoid a peremptory instruction a plaintiff must have a cause of action both proven and pleaded. Utterback v. Quick, 230 Ky. 333, 19 S.W.2d 980.

Judgment affirmed.