295 S.W. 414 | Ky. Ct. App. | 1927
Affirming.
Defendant, Eugene Demumbrum, contracted with one Early to construct a residence on his lot in Ravenna, according to certain plans and specifications, for $5,050. *423 Under a contract with Early the plaintiff, Hazard Lumber Supply Company, furnished material therefor aggregating over $3,000. Upon ceasing to do this it gave proper notice and within the time required by statute filed proper claim in the county clerk's office for a balance due it of $543.05, and later brought suit in equity in the Estill circuit court against Demumbrum, to enforce its lien on the property. An itemized statement of materials furnished and credits was filed as an exhibit with the petition. The answer traversed the allegations of the petition generally. The case was referred to the master commissioner, who took proof and reported in favor of the entire amount of the claim. Numerous exceptions were filed to this report and upon final hearing the court adjudged a lien in favor of plaintiff in the sum of $355.53, with costs, and ordered the property sold. Plaintiff appeals from so much of the judgment as refused its entire claim and the defendant has filed a cross-appeal.
1. It is strongly insisted by the defendant that it was the duty of the plaintiff to prove delivery of each item in its account, and that, as it failed to do this and only made proof in a general way, it is not entitled to recover anything, and that judgment should have been entered for defendant on the entire claim. It appears, however, that defendant merely traversed the account generally and did not raise an issue in the answer as to the correctness of any individual item in the account and that in this respect the answer was bad (Webb v. Jeffries, 2 Bush, 221; Cantrill v. Segree,
Wherefore, perceiving no error, the judgment is affirmed on the original and cross appeal.