83 P. 512 | Idaho | 1905
— In this case judgment was entered for plaintiff, and defendant appealed therefrom, and from an order denying his motion for a new trial. The appellant contends that the complaint does not state facts sufficient to constitute a cause of action; that the evidence was not sufficient to justify the verdict and judgment, and that certain of the court’s instructions were erroneous. The complaint alleges that during the year 1903, Collins & Sherer sold and
Defendant answered this complaint by denying the principal allegations thereof. At the trial, however, the case resolved itself into practically only one issue. Rubedew admitted that he entered into the contract with Dahlgren whereby Dahlgren was to furnish the material and paint the house for $100, and that he thereafter paid Dahlgren the sum of $40 on the contract. He also admits that he agreed with the plaintiff that he would pay him $60 as soon as the painting contract was completed. It seems that one door lacked a coat of varnish, and a small place on one side of the house was lacking a coat of paint. Defendant claims that under the contract no part of the contract price was payable until the work was completed, and that he was withholding payment until the completion of the contract. Plaintiff produced Dahlgren as a witness, and he admitted that there was a small amount of work to be done on the contract, but he also testified that he had on different occasions offered to complete the work, and at one time was on his way to defendant’s
Judgment is affirmed with costs in favor of respondent.