151 Iowa 729 | Iowa | 1911
The defendants, being under contract to construct a certain tile ditch, sublet to plaintiff the work of excavating the trench to grade and laying the tile. He was not required to do the back filling, but was at liberty to do so. The defendants undertook to' inspect the work every two weeks, and, if they found it properly done in accordance with the engineer’s profile of survey, to pay plaintiff eighty percent of the contract price for the work so done, and at the due completion of the ditch and a showing that all labor claims had been satisfied they would pay the remainder of said contract price. Plaintiff alleges the performance of the contract on his part, and that defendants have not paid in full the agreed compensation he was to receive, and he asks judgment on said account for $603.61. In another count he alleges the performance of other or extra work at the request of defendants, for which he demands the additional sum of $104.75.
Por answer the defendants deny that the work was done or completed according to contract, deny the alleged value of the extra work mentioned, and allege payment to plaintiff of all and more than he in fact earned under said contract or otherwise. Defendants also allege that the work done by the plaintiff was so unskillfully and improperly performed as to make necessary the relaying of much of the tile, and to correct these defects’ and make 'the ditch conform to the contract will require an outlay of $275. The same matter is also pleaded as the basis of a counterclaim of $275. Other matters in controversy do not materially affect the questions presented by this appeal. There was a verdict and judgment for plaintiff for $484.15.
We find no error in either respect. The testimony first mentioned was to the effect that, because of the ■soft condition of the ground, defendants were unable to deliver all the tile for plaintiff’s use on the line of the ditch as agreed, and that, in consideration of this fact and plaintiff’s undertaking to receive the tile at a distance from the ditch, they agreed to pay him an increased price for the work of construction. As the petition alleges a modification of the original written contract by which the price per rod for the work was- increased, and the answer admits that there was a modification, but denies that its terms are properly stated by the plaintiff, the testimony thus objected to was both competent and material. It, is too well settled to require argument that a written contract may be orally modified upon sufficient consideration therefor; and, if plaintiff consented to receive' the tile at a distance from the trench, where the defendants undertook to place them, such agreement would afford consideration for their promise to pay the increased compensation.
The case was fairly tried and no good reason is shown for disturbing the verdict. The judgment of the district court is affirmed.