137 Iowa 1 | Iowa | 1908
The cement walk constructed for defendants on premises at the time belonging to defendants was laid under a specific contract, and a portion of the specified price was paid. Thereafter the plaintiff sued for the balance of his compensation under the contract, but was defeated of his recovery by evidence establishing the defense that the walk was not such as was called for by the terms of the contract. Plaintiff now sues for value of the walk constructed by him over and above the amount paid therefor, and in a second count asks damages for the conversion of the walk by the defendants, who after' the determination of the first action sold the premises to another. The claims of plaintiff are, first, that although he did not comply with bis contract so' as to be entitled to recover the agreed compensation, he had conferred upon defendants a benefit for which he is entitled to be paid; and, second, that upon defendants’ refusal to accept the walk it remained the property of plaintiff with the right to remove it, and that defendants have converted it to their own use to plaintiff’s damage by selling .the premises' to another without reserving such right of removal. Defendants plead a prior adjudication-as to plaintiff’s recovery for the value of the walk, and deny the conversion.
On no theory was the plaintiff entitled to recover in this action, and the judgment against him is affirmed;