51 P. 607 | Idaho | 1897
The plaintiff brought his action against the three defendants npon an alleged joint contract for the performance of certain labor, in the construction of three water wheels and certain other work. The first paragraph of plaintiff’s complaint is as follows: “The plaintiff complains, and alleges that about the first day of May, 1895, plaintiff and defendants entered into an agreement whereby plaintiff agreed to construct three certain' water wheels, to construct and repair the fences, and to construct a privy upon the land and farm hereinafter described, and to furnish certain materials for the same, said defendants to furnish certain other materials; and said defendants agreed to pay him for the same, first, the value of the materials to be furnished by plaintiff, and the value and compensation per day for each day employed in the performance of the labor and construction aforesaid. And plaintiff avers that he worked upon said wheels, fences and privy under said agreement, and furnished material thereunder,and has fully kept and performed the said agreement in all things to be by him kept and performed; but the said defendants have not paid him therefor, nor any part thereof.” The complaint then proceeds to allege the performance of the labor, and the furnishing of certain materials, and claims judgment therefor in the sum of $2-56.69 against defendants. It seems plaintiff attempted to file a mechanic’s lien, but failed in establishing it, and that part of the complaint was abandoned. A general demurrer to the complaint was filed by defendant Maize, which was overruled. The defendant Maize then filed his separate answer to the complaint of plaintiff. The first paragraph of the said answer is as follows: “Comes now the defendant H. B. Maize, and answers the plaintiff’s complaint as follows: Said defendant denies that about the first day of May, 1895, or at any other time, this defendant entered into any agreement whereby plaintiff agreed to construct three certain wheels, to construct and repair the fences, and to construct a privy upon the land described in the complaint, or to do or perform any of the things alleged upon the described lands and premises, or upon any premises, or that this defendant ever entered into any contract or agreement with plaintiff to do anything whatever, or that plaintiff ever kept or fulfilled said al
To the candid, unprejudiced mind, these facts are conclusively shown by the record: 1. That the work alleged to have been performed by the plaintiff was performed by him; 2. No question is raised as to the value as charged; 3. That plaintiff performed said work, and supplied the materials, at the request
Appellant contends that, because the complaint alleges a cause of action against defendant Maize and the Venables jointly, and the proofs showed a several liability against defendant Maize, therefore his motion for a nonsuit should have been allowed. We cannot consent to this contention. The authorities cited by appellant do not, it seems to us, sustain his position. People v. Harrison, 82 Ill. 84, was an action upon a joint and several guardian’s bond. The court held in that case that “a recovery