Evarts v. Smucker

• Decision Date: 19 January 1886
• Citation: 26 N.W. 596,19 Neb. 41
• Parties: L. H. EVARTS, PLAINTIFF IN ERROR, v. W. B. SMUCKER, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

26 N.W. 596

19 Neb. 41

L. H. EVARTS, PLAINTIFF IN ERROR, v. W. B. SMUCKER, DEFENDANT IN ERROR

Supreme Court of Nebraska

January 19, 1886

ERROR to the district court of Richardson county. Tried below before GASLIN, J., sitting for BROADY, J.

AFFIRMED.

E. W Thomas and C. Gillespie, for plaintiff in error.

Frank Martin and J. D. Gilman, for defendant in error.

OPINION

MAXWELL, CH. J.

This action was brought in the district court of Richardson county by the defendant in error against the plaintiff to recover the sum of $ 473.50, as a balance due for certain material furnished and labor performed on a house of the plaintiff in error in pursuance of the terms of a certain contract in writing, a copy of which is set out in the record. The plaintiff below alleged in his petition that he had performed all the stipulations of said contract on his part to be performed. The defendant below in his answer admitted the written contract, but alleged that the plaintiff had failed to comply with its terms and conditions, and stated specifically the particulars in which he alleged there was a failure, and claimed that he had sustained damages to the amount of $ 500. The plaintiff below in his reply admitted that the work was not done as required by the contract, but alleged that the defendant had caused certain changes to be made in the plans and specifications, and that the work was performed in accordance with such changes. The defendant below thereupon filed a motion to strike out of the reply all matter relating to change in the plans and specifications for the reason that the same was a departure from the petition.

1. It is claimed by the plaintiff in error that this motion was overruled, but in this he is evidently mistaken, as the record (page 11) shows that the motion was sustained. This motion was sustained on the 10th of October, 1884. A jury was thereupon impaneled, and the trial proceeded. On the next day, and after the jury had returned their verdict, the plaintiff below filed an amended petition, in which the variations from the contract are set out, and a compliance averred with the contract as modified. A motion was thereupon filed by the defendant below to strike this petition from the files, because it "was filed by plaintiff after the verdict of the jury was returned and accepted by the court." The motion was overruled, and this is assigned for error. The jury returned a verdict in favor of the plaintiff below for the sum of $ 410.50, and judgment was rendered thereon.

The principal errors relied on are the failure to strike the erroneous matter from the reply, and the filing of the amended petition after the return of the verdict. As stated above, the motion to strike the matter inconsistent with the petition out of the reply was sustained. The reply must be consistent with the petition, and if modifications have been made in the contract, and it is sought to recover upon the contract as modified, the contract as changed should be pleaded, and an allegation that the plaintiff has duly performed. Durbin v. Fisk, 16 Ohio St. 533. Smith v. Brown, 17 Barb. 431. Hosley v. Black, 28 N.Y. 438. Oakley v. Morton, 11 N.Y. 25. Holmes v. Holmes, 5 Seld. 525. Garvey v. Fowler, 4 Sand. 665. Swan's Pl. and Pr., 208. Maxwell's Pl....