55 Iowa 315 | Iowa | 1880
I. The petition states the plaintiff did work and furnished materials for the erection or repair of a dwelling house, situate on real estate therein described, for the defendant; that disputes arose as to the amount due therefor, that said differences were compromised and settled, and
All these parties, so far as we can j udge, are of equal credibility, and we feel constrained to say the preponderance of the evidence is clearly with the plaintiff, and, therefore, the finding of the District Court that there was a settlement must be affirmed.
In response to a motion for a more specific statement, the defendant stated in an amended answer that defendant “fraudulently charged for the time of each workman employed at least fifty cents' per day more than he actually paid said workmen so employed upon said work, and charged at least twenty per cent more for the material put into said building than he was required to pay for the same, and charged in said bill so furnished for a greater amount of material than was used, to the amount of twenty-five per cent thereof.”
It will be observed there are three specifications of fraud only: Fvrsb. In relation to the amount paid the workmen. Second. The amount paid for the materials, and TJwrd. As to the quantity of materials furnished. The burden to establish these specifications is on the defendant.
As to the third and last, it was admitted on the trial “ that the material named in the bills sworn to by McCoy as having been paid for by him went into the house.”
As to the first specification the defendant was informed before the settlement he had been charged fifty cents more per day than the amount paid the carpenters by the defendant, and there is no evidence showing the amount so charged was not the usual and ordinary price. Finally, we do not understand this specification to be relied on in argument.
There is not a ¡^article of evidence to sustain the second specification, except as to a gate for which the plaintiff charged $14.40, which the evidence tended to show was not worth more than seven or eight dollars'. Conceding this to be so, we are not prepared to say the settlement was procured through fraud, by reason of the overcharge in the price of the gate. There was evidence tending to show a portion of the material
We are unable to conclude from the evidence that the plaintiff acted fraudulently in making the house as constructed cost more than two thousand dollars. If he did the fraud was well known and understood by the defendant at the time the settlement was made. The judgment of the District Court must, therefore, be affirmed. The defendant superseded the judgment below, and the plaintiff asks for judgment on the bond in this court. To this he is entitled and it will be so ordered.
Affirmed.