Green v. Fiester
| Decision Date | 26 January 1934 |
| Docket Number | 28744 |
| Citation | 252 N.W. 397,125 Neb. 874 |
| Parties | EDWARD R. GREEN, APPELLANT, v. ERNEST K. FIESTER ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Adams county: J. W. JAMES, JUDGE. Reversed, with directions.
REVERSED.
Syllabus by the Court.
Where there is a contract for a specified sum to furnish the labor and the material for repair of building, a detailed account is not necessary.
Appeal from District Court, Adams County; James Judge.
Suit by Edward R. Green against Ernest K. Fiester and another. From the judgment, plaintiff appeals.
Judgment reversed and cause remanded with directions.
Stiner & Boslaugh and Edmund P. Nuss, for appellant.
J. E Willits, contra.
Heard before GOOD, EBERLY and DAY, JJ., and BLACKLEDGE and RYAN, District Judges.
This is a suit to foreclose a mechanic's lien arising out of the repair of a building following its damage by a tornado. The plaintiff's petition alleged that he entered into a contract with the defendant, Ernest K. Fiester, who is the owner, to furnish the material and perform the labor necessary to repair a building for the sum of $ 1,068.02, and that the work and labor were performed according to the contract. The plaintiff filed an affidavit setting out the account in writing of his claim with the register of deeds as provided by section 52-103, Comp. St. 1929. The defendant filed a general denial. Upon a trial the district court found that the plaintiff furnished labor and material for the repair of the building in question, and that there was due the plaintiff from the defendant on account of said work and labor the sum of $ 162.05. From this judgment, the plaintiff appeals to this court.
Both the sworn statement of account which was filed by the plaintiff and the petition filed by the plaintiff to foreclose the lien set out that a contract existed between the plaintiff and the defendant to repair the building for the sum of $ 1,068.02. The evidence discloses that, after the building had been damaged by the storm, the plaintiff was requested to make an estimate of the cost for doing the work. This was done, but the adjuster for the insurance company which had insured the building objected that the estimate was too high. It was agreed between the adjuster for the insurance company and the defendant that he would proceed with the repairs and settlement would be made on the basis of the cost of repairs. The defendant proceeded to do considerable work along this line. But before the work was completed, the plaintiff alleges that defendant called him in and entered into the contract as set out in the petition, in which he agreed that plaintiff was to take over the work and complete the repairs of the building for the amount of the adjustment by the...
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