48 Kan. 253 | Kan. | 1892
The opinion of the court was delivered by
J. W. Hooper brought an action against A. F. Groves and M. H. Carr, copartners under the name of ■ Groves & Carr, for labor and material performed and furnished in plastering five houses and building chimneys thereon, and in constructing five cisterns, in pursuance of a verbal contract, at stipulated prices, on the east 137-|- feet of a lot in the city of Atchison. He alleged that the contract was made in July, 1887, that the work under the contract was completed about December 9,1887, and that the material and work furnished under the terms of the contract were of the value of $734, on which there had been paid $307.10, leaving due and unpaid $426.90. He further alleged that on about the 5th of January, 1888, he made out and filed in the office of the clerk of the district court a sworn statement containing a list of the items of material and labor, and claimed a lien on the real estate on which the improvements were made. Several other parties, who claimed an interest in the real estate, were made defendants, and they filed answers setting up the nature and extent of their interests. M. H. Carr filed a separate answer, which was first a general denial; and he further answered that he had fully paid all of the demands of the plaintiff against him individually, as well as against A. F. Groves; and, as another defense, he alleged that he had been garnished
Error is assigned on the exclusion of some testimony-concerning the manner in which the cisterns were constructed, and the amount of damage suffered by reason of the defective character of the work done by the contractor. Some of the cisterns constructed by the plaintiff below were not walled up with brick or stone, but were merely cemented upon the earth, and the cement and lime cracked and fell off, so that the cisterns would not hold water. Others of the cisterns constructed were walled with brick, and cemented over the brick. Some questions were asked by the plaintiff in error as to what was the difference in value between a cistern constructed without a brick wall and one constructed with a brick
Judgment affirmed.