Carr v. Hooper

• Decision Date: 01 January 1892
• Citation: 48 Kan. 253,29 P. 398
• Parties: M. H. CARR v. J. W. HOOPER et al
• Court: Kansas Supreme Court

29 P. 398

48 Kan. 253

M. H. CARR v. J. W. HOOPER et al

Supreme Court of Kansas

January 1, 1892

Error from Atchison District Court.

THE opinion states the case.

Judgment affirmed.

J. T Allensworth, and L. F. Bird, for plaintiff in error.

C. D Walker, and J. F. Tufts, for defendants in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

J. W. Hooper brought an action against A. F. Groves and M. H. Carr, copartners under the name of Groves & Carr, for labor and material performed and furnished in plastering five houses and building chimneys thereon, and in constructing five cisterns, in pursuance of a verbal contract, at stipulated prices, on the east 137 s1/2s feet of a lot in the city of Atchison. He alleged that the contract was made in July, 1887, that the work under the contract was completed about December 9, 1887, and that the material and work furnished under the terms of the contract were of the value of $ 734, on which there had been paid $ 307.10, leaving due and unpaid $ 426.90. He further alleged that on about the 5th of January, 1888, he made out and filed in the office of the clerk of the district court a sworn statement containing a list of the items of material and labor, and claimed a lien on the real estate on which the improvements were made. Several other parties, who claimed an interest in the real estate, were made defendants, and they filed answers setting up the nature and extent of their interests. M. H. Carr filed a separate answer, which was first a general denial; and he further answered that he had fully paid all of the demands of the plaintiff against him individually, as well as against A. F. Groves; and, as another defense, he alleged that he had been garnished in various actions by the creditors of Hooper in the sum of $ 100, for the payment of which he will become liable when judgment shall have been entered against the plaintiff. And, finally, he alleged that by reason of the defective and unwork-manlike manner in which the cisterns were built by the plaintiff, he was damaged in the sum of $ 100. A trial was had before the court and a jury, and a verdict was rendered in favor of Hooper, awarding him $ 251.79. The mechanic's lien was foreclosed, and the priorities of the various liens found to exist were determined. M. H. Carr alone complains of the rulings of the court, and he brings this proceeding, asking a reversal of the judgment and decree of the court upon several grounds.

It is contended that the court erred in permitting the plaintiff to prove the execution of the mechanic's lien after the verdict of the jury had been returned. This objection is not tenable. The nature of the transaction between the owner and the contractor, and the indebtedness existing under the contract made between them, was submitted to and determined by the jury; but the question of the existence of the lien, and the determination of the priorities among the lien-holders, was for the court and not for the jury. The admission of testimony, therefore, to establish liens or to enable the court to settle the priorities was admissible after the discharge of the jury.

Error is assigned on the exclusion of some testimony concerning the manner in which the cisterns were constructed, and the amount of damage suffered by reason of the defective character of the work done by the contractor. Some of the cisterns constructed by the plaintiff below were not walled up with brick or stone, but were merely cemented upon the earth, and the cement and lime cracked and fell off, so that the cisterns would not hold water. Others of the cisterns constructed were walled with brick, and cemented over the brick. Some questions were asked by the plaintiff in error as to what was the difference in value between a cistern constructed without a brick wall and one constructed with a brick wall, to which objections were sustained. The rejection of this testimony was not error. According to the testimony, the agreement between the parties under which the cisterns were constructed was, that they should be constructed without brick walls, and in the manner in which they were built. The court permitted a full investigation of whether the work had been done in the manner contracted for and also instructed the jury that the plaintiff could not recover unless he showed by a preponderance of the evidence "that he performed the labor in a workmanlike manner, and furnished the material, as by his verbal agreement he was bound to do." There was ample proof to sustain the contract claimed by Hooper, and the jury have found that such a contract was made. An examination of the record,...