49 Ind. App. 368 | Ind. Ct. App. | 1912
Appellant’s complaint was in a single paragraph and sought to recover for labor performed and stone used in constructing a building erected by appellee George A. Weaver, and to foreclose a mechanic’s lien on said building. There was a written contract, by the terms of which appellant was to
“furnish all labor and materials necessary fully to complete the cut stone work, as described under the*370 heading of ‘Cut Stone Work,’ and as per opening or introductory article of the specifications, and as indicated in the drawings, both general and detail, * * * for the sum of $1,690.”
The complaint, in addition to averring the furnishing of material and the performing of labor, under said written contract, further averred that appellant, at the special instance and request of appellee, furnished extra material and labor, of the reasonable value of $333.12, evidenced by a bill of particulars. The complaint admits that appellee paid on said materials and labor furnished $1,100, and seeks to recover the balance of $923.12, which is alleged to be due and unpaid, and also asks for $150 attorneys’ fees, and the foreclosure of a mechanic’s lien on the property. The complaint contains the other essential averments as to the ownership of the lots upon which the building was located, the filing of the notice of the intent to hold a lien, etc. Appellee trust company was made defendant to answer as to its interest in the property, on account of a lien held by it. To this complaint appellee Weaver filed an answer in four paragraphs: (1) A general denial, (2) a plea of payment, (3) a plea of tender of $727.68 on September 1, 1908, which was before the suit was begun.
The plea of tender averred that the amount tendered was in excess of the amount due to appellant, and that appellee Weaver had paid said sum to the clerk of the court for the use of appellant, and was ready and willing to pay said appellant said sum in settlement of its claim.
The fourth paragraph was a counterclaim, alleging a failure on the part of appellant to furnish the kind of stone provided by its contract, and a failure in other respects to furnish the material and perform the labor as provided therein, specifically setting out the items and amounts, and asking damages on account thereof in the sum of $600. To the special answer, a reply in general denial was filed by appellant.
A motion for a new trial was overruled, and the ruling on this motion is the only error assigned.
The various grounds of this motion may be grouped and discussed under the following heads*. (1) That the amount of the judgment is erroneous, in that it is too small; (2) that the court erred in denying appellant’s right to a mechanic’s lien; (3) that the court erred in the admission and exclusion of certain evidence.
The price to be paid for the cut stone work, under the agreement was $1,690. In addition to this sum appellee Weaver, upon the trial, agreed upon certain extras aggregating $42.13, making a total of $1,732.13, conceded to be due to appellant on account of all material furnished and labor performed. This of course leaves out of account any claim for damages growing out of said appellee’s counterclaim.
Upon this sum appellant concedes a payment of $1,100 before the suit was filed, leaving a balance of $632.13.
The amount of the tender pleaded and brought into court, about which there seems to be no dispute, was $727.68. The court rendered judgment for $650.28, which was $77.40 less than the tender, and $18.15 in excess of the amount conceded to be due by said, appellee.
The amount found by the court to be due to the appellant was less than the amount appellee Weaver had tendered it before the suit was filed, and which was brought into court for its benefit. We do not think that it can be seriously contended that the foreclosure of the lien should be decreed, and allowance for attorneys’ fees made, against a party who had, before he was sued, offered to pay in full, and after-wards kept his tender good by bringing the amount into court.
The witness was not asked merely what doors or doorsills were shown by the plans and specifications, but was asked whether the building contained any other than those shown by such plans and specifications. This could not be determined from the plans and specifications alone, but involved an examination of the building also. While the question may have been objectionable, in that it asked the witness for his opinion on said matter after an examination of both the plans and specifications and the building, yet it certainly could have resulted in no substantial harm to appellant. This is especially so, in view of the two preceding questions put to the same witness, which he was permitted to answer without objection. To these questions the witness had answered, first, that after the plans and specifications were prepared he had not put in an extra door, and then in reply to a question asking whether he had put an
The record upon this subject disclosed that the witness, in reply to a question put by counsel for appellant, had said, in substance, that he had never heard of the stone quarried at Bloomington or Monroe being called “Bedford stone.” After this answer, appellant’s counsel merely said: “Look at this copy of the American Contractor.” An objection was sustained by the court, and exceptions saved by appellant.
The record does not disclose what the “American Contractor” was, nor appellant’s purpose in having the witness examine it, and no offer or statement of any kind was made as to what was expected to be elicited or proved by the examination. The question which followed, however, evidently elicited all that the appellant could have been entitled to, by having the witness examine the publication submitted to him. This question and answer were as follows:
“Q. Don’t you know the trade journals generally and traders advertise and sell stone known as Indiana Oolitic limestone as Bedford stone, without regard to the particular place it is quarried ?
A. I don’t Imow it that way.”
Judgment affirmed.