146 N.W. 570 | S.D. | 1914
The Symms-Powers Company, as party of the first part, and one Kennedy, as party of the second part, entered into a written contract wherein the company contracted to install a heating and plumbing system in an opera house then in course of erection by Kennedy; the contract price for installing both systems being one lump sum. The only provisions of this contract necessary to be noted are: (1) that the consideration for the installation of said plants was to be paid “provided that the party of the first part shall have furnished to' tire party of the second part a good and sufficient surety bond in the 5tt*n. of one thousand dollars guaranteeing to the party of -the second part that said heating plant is installed in accordance with this contract and the specifications thereto attached and will heat the buildings as therein provided, -or, in default thereof in any respect, the party of the first paid will, upon notice thereof and with all reasonable expedition, repair aity defects in the
Under this contract the Symme-B'owers Company installed a heating and plumbing plant. The Plumbing Supply Company ■furnished all or a large part of the material used by the contracting company. The plants having been installed and the contract price remaining unpaid, each of said companies filed a mechanic’s lien against the building and the lot whereon it was situate; the contracting company filing its lien in the full amount of the balance claimed to be due under the contract, the other company filing a lien in the amount claimed to be due it from the contracting company. Kennedy having notified each of said companies to bring an action to enforce its lien or else to satisfy the same of record, each company brought an action to foreclose its lien, in which action Kennedy and the other company were made defendants. It appearing that it was a proper case therefor, the trial court ordered the two actions to be consolidated and the issues tried in J:he action wherein the contracting company was the plaintiff. By a supplemental and amended complaint, the “Supply” company pleaded an error in the amount of its lien as filed and prayed that it be given a lien considerably in excess of the amount of the filed lien. Bindings, conclusions, and judgment were entered in favor of the two companies; by such judgment the contracting company was given a lien for the full amount claimed less $120 deducted for failure to fully comply with its contract, but from the amount of such judgment the supply company was to be paid the full amount claimed by it. Kennedy appealed from such judgment and an order denying him a new trial. We shall first discuss this appeal as though the supply company had not been and were not a party to the action.
Plaintiff, in its complaint, alleged the entering- into a written contract for the installation of the two 'systems and that it had per
Plaintiff introduced in evidence the written contract and proof of the installation of the two plants. It offered no proof that it had furnished the bond, or that it had offered to submit any difference to arbitration. There was no evidence to show that plaintiff was ever advised that defendant refused payment on the ground htat the plants had not - been properly installed. Wien plaintiff rested, defendant moved for a dismissal of plaintiff’s complaint basing such motion upon plaintiff’s- failure to prove the giving of such bond, and: upon its failure to submit matters in dispute to arbitration. The count overruled this motion. Defendant, at the opening of his defense, offered evidence to show that the bond had not been furnished. This was objected to upon the grounds, among others that it was “in no •way referred to in the pleadings,” and that “it appears undisputed in the evidence, up to this stage, that the defendant waived any claim, and accepted the performance of the contract with the knowledge that the bond had not been furnished and that the parties waived any such provision.” The objections were sustained. Defendant immediately asked leave to 'amend his answer so as to correspond with the proof offered. This was refused. Evidence was received that a demand was made for. the bond, and it stands conceded and the court found that no bond was given. At the close of all the evidence, defendant again, asked' leave .to amend his answer to conform to the evidence that had been received, and in connection with such motion presented his proposed amended answer, in which answer he alleged the 'failure of plaintiff to furnish the bond. The court refused the amendment. Defendant then renewed ‘his motion for a dismissal of plaintiff’s complaint for failure to prove compliance' with -the provisions for bond and for
The judgment in so far as it is in favor of Symms-Powers 'Company is reversed, with costs for appellant. The judgment in favor of the Plumbing Supply Company should he modified so that it be limited, to the amount claimed in the lien filed and interest thereon; as so modified, it is affirmed, without costs to either party.