Tucker v. Waschak

BY THE COURT

The plaintiffs below, who are the plaintiffs herein, brought an action against defendants herein claiming that the Waschaks entered into a written contract with plaintiff, Tucker, for the construction of a house' upon certain lots owned by Waschak. Waschak deposited a certain amount of cash and the proceeds of a mortgage to The Union Building and Savings Co. to provide for payments upon the construction contract. Tucker later assigned a portion of the money due on said contract to Hoffman. The petition avers that on or about July 9, 1924, Tucker entered upon the performance of said contract and continued until about the 4th of August, 1924, when the defendant Waschak discharged him, the said Tucker, and refused to permit him to further continue, and proceeded to finish the construction himself. The plaintiff avers that in completing the building the defendants, the Was-chaks, used more expensive material than the original contract called for and spent more money than was called for in said contract and that the defendants have refused and continue to refuse to pay plaintiffs the amount due them thereunder or to make an accounting thereof. The trial court sustained a demurrer and final judgment was rendered against the plaintiffs.

There is no statement in the petition showing the amount due to the plaintiffs. This would be necessary to maintain an action at law or to demand an accounting. An accounting will not be decreed upon a mere abstract right. There must be a clear showing of a substantial right.

We are of the opinion that the demurrer was properly sustained.

Judgment affirmed.

. (Ferneding, Kunkle and Allread, JJ., concur).