146 Ky. 269 | Ky. Ct. App. | 1912
Reversing.
J. D. Sebree brought this action in the Scott Circuit Court against Mrs. Mary C. Cantrill. He died shortly thereafter and the case was revived in favor of his ad-ministratrix. The cause of action was upon three distinct claims: First, upon an account for extra work done by Sebree as a carpenter and builder over and above the contract price of work which'he was doing for Mrs. Can-trill ; second, upon a claim for services as agent for Mrs. Cantrill in renting out her houses, collecting her rents and the like; third, upon a balance claimed to have been found due upon a settlement of prior transactions between Sebree and Mrs. Cantrill. Issue was joined by the defendant, the case tried out before a jury, and a verdict awarded in favor of plaintiff: in the sum of $796.53. From the judgment upon that verdict this appeal is prosecuted.
It is first urged that the trial court erred in instructing the jury to find for the plaintiff the sum of $202.65 in any event. In this we find no error. The plaintiff filed with his petition, as a part of it, an itemized account setting out in detail the extra items. In an amended answer the defendant denied certain specific items of this account, but did not deny a number of them, amounting to $307.15. Both sides admitted a payment by Mrs. Cantrill. to Sebree of $104.50 more than the contract price. The court found the balance of $202.65 by-deducting the overpayment of $104.50 from the sum of $307.15 of items not specifically denied. The defendant claims that her general denial of the account was sufficient as a denial of each and every item claimed by plaintiff; but such a denial is not sufficient where the items comprising the plaintiff’s claim are set out in detail as a part of the petition. In such cases the defendant must deny every specific item of the account which it is desired to controvert. Whitaker v. Sandifer, 1 Duv., 262; Webb v. Jeffries, 2 Bush, 221; Palmer v. Johnson’s Admr., 13 Ky. Law Rep., 590. Upon the return of the case Mrs. Cantrill’s answer may be amended in this respect, if she so desires.
The second instruction told the jury that if they believed from the evidence that in May, 1905, Sebree :and Mrs. Cantrill had a settlement of their accounts, finding a balance due to Sebree from Mrs. Cantrill, they ■should find for the plaintiff the amount which they
As the ease must be retried, it is proper to say that if any testimony is offered to establish the balance of $61.88, set up in the amended petition, filed on January 19th, 1909, the deed from Mrs. Cantrill to Mrs. Sebree should be admitted as evidence upon the issue raised by the allegations of that amendment and the traverse thereof. But if it is so offered, the court will, by proper instruction, limit the jury’s consideration of it to that issue.
For the reasons given the judgment is reversed for another trial consistent herewith.