Citation Numbers: 21 S.W.2d 832, 231 Ky. 544
Judges: Drury
Filed Date: 11/15/1929
Status: Precedential
Modified Date: 10/19/2024
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,
Judgment affirmed.
Herrman v. Daffin , 302 S.W.2d 313 ( 1957 )
Metropolitan Life Ins. Co. v. McDonald , 246 Ky. 109 ( 1932 )
N. O. Nelson Mfg. Co. v. Wallace , 66 S.W.2d 505 ( 1933 )
National Surety Corp. v. Massachusetts Bonding & Insurance , 280 Ky. 785 ( 1939 )
Hollywood Wholesale Electric Co. v. John Baskin, Inc. , 121 Cal. App. 2d 415 ( 1953 )