No. 709 | La. Ct. App. | Feb 12, 1927
Suit by contractor to recover for extra work and material used in erecting a dwelling hous'e and sidewalks.
The plaintiff, Albert T'olle, agreed by written contract and according to written specifications with Henry A. Mentz to build for the latter a dwelling house, furnish material and labor, for a certain price; but during the work, some changes were agreed upon and extra work undertaken. This suit is to recover on account of extra work and material not provided for in the original contract and specifications.
The plaintiff alleges that defendant is due him $1023.89 on account of extra work and materials. That a bill of $218.82, which plaintiff had furnished defendant on said account was due to. an error of fact on part of plaintiff. That there is really due him $1023.69 on account of extra work, which amount he claims; by suit.
After filing an exception of vagueness, which was overruled, defendant, answering, denies being indebted to the plaintiff. He admits that extra work was done and material furnished pursuant thereto, but that everything had been paid for and that he owed the plaintiff nothing.
Judgment was rendered in plaintiff’s favor for $218.82 and the balance of plaintiff’s demand was rejected. The plaintiff appealed.
The item which plaintiff claims under the head, “bill rendered”, $218.82, is not disputed. Defesdant, as a witness, admits, that this amount remains unpaid; he says that he held it back because plaintiff has not finished the cement sidewalk according to their agreement', and as it should have been done.
The evidence on the subject of this sidewalk shows that the workmen, in constructing it, dropped cement on it in places, making low bumps, etc. This should not have been done, and the plaintiff should clean it off and deliver the sidewalk to the defendant in the condition in which it was intended at the time the work was undertaken.
We are going to assume that plaintiff will do that and not interfere with the judgment allowing him $218.82, because of such a small matter. As for the items, $91.25 for sanding and scraping pine floor, $50.00 for tile batp in bathroom, $115.00 for full length screens in outside openings, they appear to be expressly provided for in the contract between the parties and "in the specifications of the work to be done and are not extra, but work required by the contract. Not only the above, as to the items mentioned, but the record contains a receipt in favor of the defendant, signed by the plaintiff, for $1906.56, dated September 25, 1925, in which it is stated that defendant has finally paid for all material, labor and ■construction work, and there is no recordation as to anything. This receipt ia not said to contain anything, not true, and that it is not as general as it purports to be. Defendant says that it is correct and that he has paid everything due the plaintiff except $218.82 held back as above stated. We can not hold against this receipt and the evidence of the defendant that the other items claimed by plaintiff, $300.00 on account of - painting plastered walls, $35.00 for brick and tile border on main entrance porch, $49.00 for tile border on sun iparlor, $89.00 for tile hearths and tile base at fireplaces, are not paid for. It looks from-the specifications that they may well be comprehended in the matters therein provided for; but suppose them not to be; the burden of proof is on the