Chicago Lumber Co. v. Limerick
53 Kan. 395
Kan.
1894
Check Treatment

The opinion of the court was delivered by

Allen, J.:

The plaintiff brought suit to foreclose a lien for materials furnished by it under a subcontract with J. D.. Bricker, for the erection of a building on a lot owned by Ella Limerick. The petition is in the usual form, and has-attached thereto a copy. of the itemized account against Bricker, which amounts to $305.52, and is duly verified. The defendant Ella Limerick answered, admitting that she-was the owner of the lot mentioned in the petition, but denying that her codefendant Bricker, was indebted to the plaintiff in any sum, and denying generally all other allegations in the petition. The case was tried by the court, and a judgment entered against the defendant Bricker, for the amount, claimed, refusing any lien upon the property, and in favor of Ella Limerick, for costs.

The main and only substantial claim of error in the casé-is in the admission at the trial of proof of payment by Ella Limerick for the lumber furnished for this building. Bricker-also hade contract for the erection of another building for her brother, J. F. Limerick, and one Crafts. J. F. Limerick testified that, as the agent of his sister, he paid a check on his bank for $300, given by Bricker to the plaintiff’s local agent, Eck,. and that it was agreed at the time that this was to be accepted as payment in full for the whole bill, it being paid in advance of the delivery of all of the materials. It is argued that the answer of Ella Limerick, which is unverified, does not raise an issue of payment, and that the plaintiff’s account, *397being duly verified, entitled the plaintiff to judgment without proof, and Gray v. Bryant, 46 Kas. 43, is cited in support of this contention. At the trial, the plaintiff offered proof of all the facts necessary to establish a lien on the premises, and rested. Thereupon, a demurrer to its,evidence was interposed by counsel for Ella Limerick. The plaintiff then asked and obtained leave to reopen its ease, and thereupon introduced witnesses to prove that the account had not been paid, who testified at some length. After the introduction of such testimony the demurrer was overruled, and the defendant proved, without objection or exception on the part of the plaintiff, the payment as above stated, and offered in evidence the check referred to. To this check objection was made, but the objection was overruled, the check was read in •evidence, and further testimony with reference to the payment was introduced on both sides, the principal contention being as to whether this payment applied on the lumber furnished for the Ella Limerick building or on that furnished for the Limerick and Crafts building. The parties having treated the question of payment as the main issue, and having tried the case through from first to last on that theory, it would be manifestly wrong to require a retrial because the answer may not be technically sufficient to raise the issue in fact litigated. The case seems to have been fully and fairly tried, and the question of payment determined adversely to the plaintiff. We think the litigation should end here.

The judgment is affirmed.

All the Justices concurring.