20 S.D. 646 | S.D. | 1906
This is an action by a subcontactor to enforce a mechanic’s lien upon property owned by the defendant Rudgers. Defendant Dudley, another subcontractor, answered, claiming the
Plaintiff's complaint contains these allegations: “(2) That the defendants, Yankton Theater Company, Denton W. Rudgers, Willard C. Lusk, and Maurice W. Jenclcs, or one or more of said persons, is, and at all times hereinafter mentioned was, the owner of lot 3 and south 23 feet of lot 2, in block 26, of that part- of the city of Yankton, Yankton county, state of South Dakota, known and platted as ‘Yankton.’ (3) That during the year 1902, and prior to the 8th day of May, in said year, the defendant Frank P. McClure contracted with the defendants Denton W. Rudgers, Willard C. Lusk, Maurice W. Jencks, and the Yankton Theater Company, or one or more of said persons, to furnish material for and construct upon the real property above described a brick building to be used for an opera house.” Appellant insists that the complaint is fatally defective because these allegations as to ownership are stated in the alternative. He neither demurred no,r objected to the introduction of evidence, on this ground, and entered into a written stipulation regarding the ownership of the property. The defect, if any existed, might have been cured by amendment. Under these circumstances the objection is not now available. Jenkinson v. Vermillion, 3 S. D. 238, 52 N. W. 1066; Johnson v. Burnside, 3 S. D. 230, 52 N. W. 1057; Townsend v. Kennedy, 6 S. D. 47, 60 N. W. 164; Anderson v. Alseth, 6 S. D. 566, 62 N. W. 435; Sherwood v. Sioux Falls, 10 S. D. 405, 73 N. W. 913; Martin v. Graff, 10 S. D. 592, 74 N. W. 1040; De Luce v. Root, 12 S. D. 142. 80 N. W. 181; Walker v. McCaull, 13 S. D. 512, 83 N. W. 578; Woodford v. Kelley, 18 S. D. 615, 101 N. W. 1069.
Answering plaintiff’s complaint and defendant Dudley’s cross-complaint appellant alleges there is a defect of parties defendant, in that Frank P. McClure, the principal contractor referred to in such compláints, has never been served with the summons or complaint, and has never appeared in the action. It appears from the sworn return of the sheriff “that after due diligence he was unable to find the defendant Frank P. McClure, in said county, or to learn that he. was in or had any property within the state of South Da
It is disclosed by the record: ‘‘That several days after the completion of the taking of the testimony in the Burgi branch of the case, the taking of the testimony under the Dudley branch of the case was taken up and proceeded with, neither the plaintiff Burgi nor his counsel being present or taking any interest therein; that at the conclusion of all the evidence in the case and the submission of findings by the parties, the defendant Dudley asked leave to amend his cross-complaint and submit further evidence. This leave was granted by the court. It was therefore agreed that the case should be again taken up four days thereafter. Upon the service of his amended cross-complaint on the defendant Rudgers, said defendant, at the time the cause came on for further hearing, interposed a demurrer thereto on the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was taken up by consent, and submitted without argument, and defendant Rudger’s attorneys did not specify any objections to said cross-complaint, except that it did not state facts sufficient to constitute a cause of action. The court overruled said demurrer to which the said defendant Rudgers excepted, and his exception was allowed.” On the trial it was admitted: “That at the time of this contract with said McClure the property was owned by the defendants Rudgers, Lusk, and Jencks. That subsequently and during the
The trial court found that Dudley contracted to furnish all material and labor in constructing a steam heating plant, and to do plumbing for $1,400; that he intended in good faith to comply with his contract, and had complied ivith all of its terms and conditions except as to certain defects and omissions caused by inadvertence which could be remedied at a cost of $177.50. No other injury to the owner appearing, the court deducted the cost of rem-. edying such defects from the contract price and gave judgment for the balance. In doing so it followed the established rule in this jurisdiction. “When contractors have in good faith intended to and have substantially complied with the contract, although there may be slight defects caused by inadvertence or unintentional omissions, they .may recover the contract price, less the damage sustained on account of such defects.” Aldrich v. Wilmarth, 3 S. D. 523, 54 N. W. 811; Hulst v. Association, 9 S. D. 144, 68 N. W. 200.
The contention that the amendment of the findings of fact to conform the decisions to the fact as stipulated b)’- the parties was reversible error is clearly without merit.
The judgment of the circuit court is affirmed.