Johnson brought an action against Erskine to recover the sum of $46.48 balance on a contract for the erection of a frame dwelling-house; $5.00 for extra work in grading around said house; and for altering a cellar window and one bay-window, $9.00.
Erskine in his answer admits that there is due the plaintiff on the contract the sum of $45.82. As a counterclaim Erskine alleges that Johnson was to complete the building on the 1st day of January, 1886, but that he failed to do so until the middle of March of that year, to Erskine’s damage in the sum of $62.60. Second, that the painting of the house was not done in good and workmanlike manner, whereby Erskine sustained damages in the sum of $15.
On the trial of the cause the jury returned a verdict in favor of Johnson for the .sum of $52.48, and amotion for a new trial having been overruled, judgment was entered on the verdict.
A copy of the contract is set out in the bill of exceptions, from which it appears that Johnson was to erect the cottage on a specified lot in the city of Lincoln, and to furnish all the materials and finish and deliver in true, perfect, and thoroughly workmanlil e manner for the said Erskine, for which he was to receive the sum of $1,410, payments were to be made on estimates every fourteen days, twenty per cent to be retained until the completion of the work, and the work to be performed “agreeably to the plans, draw
The testimony of Johnson in regard to the grading is as follows:
Q,. What did this extra work consist of?
A. Grading higher, about nine inches higher, one course of stones higher.
Q. Then it was grading up near his house, was it?
A. Yes, sir, and sloping off so as to give it a gradual descent.
Q,. How much do you say it was necessary for this extra work to be done?
A. It was necessary to give it a slope from the house to draw the water from the house, otherwise the water would have drawed to the house instead of from it.
A. I was.
Q,. What rendered it necessary to do this extra grading to raise it up?
A. Simply because the architect made a mistake in drawing his grade line, after the building was up the grade line came too low; he was mistaken in regard to the raise of the ground back.
Q. How was it Mr. Erskine told you to do this, state that conversation?
A. I spoke to Mr. Erskine about it and told him about it.
Q. Was there anybody present?
A. I don’t know that there was, I am not positive that there was anybody present.
Q. What did you say ?
A. I stated to him where that grade line was and showed it to him; I said I thought it was proper to raise that grade right up, and in the conversation I told him that it would be worth probably $5.00 extra work to grade that up.
Q. What'did he say ?
A. He said go ahead and do it.
In this he is corroborated to some extent by Mr. Jenkins, the son-in-law of Mr. Erskine, but the testimony is «denied by the latter. In our view, however, the jury was warranted in finding that the authority was given. Considerable stress is laid by the attorneys of Erskine upon that portion of the written contract which provides that, *cNo work of any kind shall be considered as extra unless expressly contracted for in writing before its commencement.” This provision may be waived by the parties by any contract, either verbal or written, subsequently made, which modified its condition.
The testimony as to the extra charge for the bay-window
The raising of the cellar windows became necessary from the change in the grade, and there is testimony tending to show that Mr. Erskine gave his assent to raising the same. The items of counter-claim of Erskine, are, first, for rent, from the failure to complete the building by January 1st. The testimony of two of the witnesses shows that they commenced plastering the house about the middle of December, 1885; that the weather set in very cold and there was danger of the plaster freezing; that there were no flues in some of the rooms, so that stoves could not be used therein to dry the walls, and that the architect directed them to cease .plastering until the weather became mild, .and that in consequence thereof they did desist until warmer weather set in, when they completed the work. This is denied by the architect.
Mary Johnson, the wife of Isaac Johnson, was called as a witness and testified as follows:
A. Yes, sir.
Q,. Have you ever seen him at your house?
A. Yes, sir.
Q,. About what time?
A. He was at our house a Sabbath day when Mr. Johnson was working on the Erskine house.
Q,. About what time ?
A. In the afternoon.
Q,. What month?
A. I can’t say.
Q,. Was that about the time of the completion of this house?
A. It was while he was working on it, somewhere near the time.
Q,. State what conversation took place between you?
A. We were building a house at the same time, and I said to Mr. Erskine that we were slow getting our work done, that Mr. Johnson was urging his work, trying to. get it done according to the time in the specification. Mr. Erskine remarked, he said, no damages if it is not done according to the time specified.
The testimony also shows that at the time the contract, was entered into Mr. Erskine expressed a willingness to give the contractor another month in which to complete the building. This testimony is not denied. The house in question was not constructed for renting, but for a son-in-law of Mr. Erskine, and there is no proof whatever-'that the son-in-law and his wife desired to occupy it before the 17th of March, 1886., It is evident that the attempt, to charge rent for the use of the house was an after-thought,, and not within the contemplation of the parties when the-contract was made. The damage sustained by Erskinefrom the defective painting is shown to be $15, and this the jury evidently allowed. Upon the whole case the verdict responds to the testimony, and it is unnecessary to
Judgment affirmed.