1 *4892 *488I. The grounds of defendant’s motion were that as to the first count “the undisputed evidence shows that the contract has been performed”; that as to the second count “there is no evidence to show the value of the property as it now is, with its defects, and because no mechanic’s lien can be claimed upon the quantum meruit”; also “because the evidence fails to show the value of the property, or the material furnished, or labor performed, if the action is based upon the quantum meruit.” This motion is in the nature of a demurrer to the evidence, and the evidence must b© taken as proving each material allegation which it fairly tends to establish. Thus viewed, it shows that there was a contract as set out, that palintiff erected the house, and that of the $1,500 to be paid therefor defendants have paid $1,250. The only issues on the first count are whether plaintiff comjfiicd substancially with the contract, whether said items 5, 6, 8, 11, 15, .and 16 were extras, and the value of the other 11 items charged as extras. The evi*489deuce for plaitiff standing uncontradicted, as it does, fairly ■establishes each of these allegations. There is evidence tending to show the value of the extras admitted, and also that the other extras were not within the contract. Therefore on this evidence the plaintiff is entitled to judgment in some amount, and his petition, should not have been dismissed. In view of this conclusion, we will not discuss the evidene. .What is said in argument in relation to the counterclaim is not applicable, as that is a matter to be established by the defendant-s. Appellants contend that, if this ease is reversed, they should have judgment in this court for an amount due as shown by the evidence, the case being in equity. The case is in equity only because foreelosof the mechanics lien is asked. There is no issue as to the lien nor any question but that the plaintiff is entitled to have it foreclosed if he recovers upon the first count. In view of, the state of the record, this court should not undertake to render final judgment, but must remand the case for a retrial upon the merits. — Reversed.
