Borne v. HardinBorne v. Hardin
This is а suit by ■ a plumber for the sum of $295.60, the balance alleged to be due under a verbal contract by which he installed сertain plumbing and fixtures in the defendant’s premises. Defendant filed a general denial. On the trial of the case оn the merits there was judgment in favor of plaintiff, as prayed for. Defendant then filed a motion for a new trial, which was granted on the ground that the transcript of the testimony оf the witnesses had been lost. The defendant then filed a suрplemental answer in which he admitted that the contract was entered into and that there was a balance due the plaintiff, but specially pleaded that the work had never been completed and accepted, because the supervisor of plumbing of thе city of New Orleans, in accordance with the rules аnd regulations of the city engineer’s office, refused tо issue a certificate of approval, beсause the kitchen sink on the second floor was not рroperly vented through the roof and one basin on the first floor was not vented, or connected to the waste line. The plaintiff objected to the filing of the supplemental answer and the court sustained the objeсtion. During the course of the second trial the transcript of the testimony taken in the original trial was found and introduсed in evidence.
There is some doubt as to the right of defendant to file a supplemental answer, which seеms to conflict with his original answer, or general denial, but аssuming that the supplemental petition was propеrly before the court, the most favorable view we could take of the situation, as far as defendant is cоncerned, we pass to a discussion of the evidenсe in the cáse.
Plaintiff’s evidence tends to show that the plumbing and fixtures were installed, in a workmanlike manner, in accordance with the contract. The defendant frankly admits that • the contract was entered into and that therе is a balance due plaintiff,
Defendant also complained in his testimony that the kitchen sink was not in accordance with thе fixture that he had selected. But it is noted that this was not plеaded in his answer and, even if it be considered that the pleadings were enlarged by the admission of the evidence, as the defendant had the burden of establishing this speсial defense, and the testimony is conflicting on that issue, we find that he has failed to sustain his claim on that score.
For the reasons assigned the judgment is affirmed.