149 P. 975 | Mont. | 1915
delivered the opinion of the court.
The Inter-State Lumber Company, plaintiff below, agreed in writing with the defendants that it would, for the sum of $3,925, furnish “during the progress of the building, so as not ■to delay the work,” certain materials required in the construction of a residence, to-wit: “All the common lumber, as dimension and sheathing, as per list attached; all the outside finish, such as cornice and porch work, ceiling, window and door frames, as per list attached; all the interior finish and mill-work, such as sash, doors, stairs, base, and other finish, as per list attached. All this material to be in strict accordance with the plans and specifications and details prepared by Link & Haire, architects at Helena, Montana, and subject to their approval.”
The complaint, alleging compliance with this contract, declares upon an unpaid balance of $1,410.55 for materials furnished under the same, and also upon an account for $358.35 for additional or extra materials furnished for the building in question at defendants’ special instance and request. The answer admits the balance as stated under the contract, but claims an offset amounting to $420 for delay, denies all liability for the extra materials, and pleads an offer and tender to pay $1,500 in settlement of plaintiff’s demands. Trial of the issues resulted in a verdict and special findings of the jury in favor of the plaintiff, upon which a money judgment for $1,768.90 was entered, together with a decree recognizing and foreclosing a materialman’s lien for said amount — all in conformity
Fourteen errors are assigned, which present two principal questions, viz.: (1) Does the record warrant the allowance of plaintiff’s claim for extras? And (2) does it warrant the dis-allowance of defendants’ claim for delay?
1. In all the transactions relating to the building, the defendant company was acting through its manager, the defendant Kleinschmidt, and the construction was under the immediate supervision of one Howard Pew, engaged by them for that purpose. It seems to be conceded that the plaintiff did furnish all the materials required by the lists attached to the contract and, so far as quality and character are concerned, in strict accordance with the plans, specifications and details of the architects. How the so-called extras came to be procured is related by Mr. Pew as follows: “When we had exhausted our common lumber supply, we needed more lumber, and I went to Mr. Kleinschmidt and asked him what I should do about procuring extra lumber needed on the job, and I asked him if I should obtain the same from the Inter-State Lumber Company, stating that the InterState Lumber Company had agreed to furnish the extra lumber needed on the job at the same price that they had furnished it under the original contract, and I asked him if I should go ahead and order the lumber there, as I needed it, and he told me ‘Yes.’ I then went to Mr. Swinehart (plaintiff’s manager), who was in his office at the time, and I asked him if he would agree to furnish the extra lumber at the same price at which he was furnishing lumber on the original contract, and he told me ‘Yes.’ I went back to Mr. Kleinschmidt then and told him that he (Swinehart) had agreed to furnish the lumber that way, and I went back then to Mr. Swinehart with my orders from time to time during the progress of the work, and they furnished the materials for me under that arrangement. I have seen a bill for extra material, which I approved prior to the filing of the lien in this case. * * * The extras therein
The contention of the defendants is that, notwithstanding these circumstances, recovery for the extra material may not be
2. Whether the plaintiff furnished the materials promptly, “so as not to delay the work,” and, if it did not, whose was the fault, were questions of fact. Upon them the evidence seems
Error is assigned upon certain rulings in the admission and exclusion of evidence. These assignments are all technical in character. Most of the rulings complained of were correct. In none of them was there error sufficient to command a retrial of the cause.
The judgment and order appealed from are affirmed.
Affirmed.