Harness v. McKee-Brown Lumber Co.

• Court: Oklahoma Supreme Court
• Writing for the Court: GARBER, J.
• Citation: Harness v. McKee-Brown Lumber Co., 89 P. 1020, 17 Okla. 624, 1907 OK 18 (Okla. 1907)
• Decision Date: 13 February 1907
• Parties: HARNESS v. McKEE-BROWN LUMBER CO.

89 P. 1020

17 Okla. 624, 1907 OK 18

HARNESS v. McKEE-BROWN LUMBER CO.

Supreme Court of Oklahoma

February 13, 1907

Syllabus by the Court.

Before this court will review the correctness of instructions given by the trial court, the record must affirmatively show an exception to the giving of such instructions at the time they were given.

[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2300-2305.]

Where a disputed question of fact is submitted to a jury in the trial court, under proper instructions, the finding of the jury on such question of fact, and the judgment of the court thereon will not be disturbed by this court where the record shows evidence reasonably tending to support such finding.

A promise on the part of an owner to pay the amount of a subcontractor's claim is supported by an agreement by the subcontractor not to file a lien.

[Ed Note.-For cases in point, see Cent. Dig. vol. 11, Contracts §§ 325, 326.]

Error from District Court, Oklahoma County; before Justice B. F. Burwell.

Action by the McKee-Brown Lumber Company against D. K. Harness. Judgment for plaintiff, and defendant brings error. Affirmed.

M. Fulton, for plaintiff in error.

Crockett & Johnson, for defendant in error.

GARBER J.

This action was brought by the McKee-Brown Lumber Company in the district court of Oklahoma county against D. F. Harness for a balance due on an account for lumber and material furnished Gillespie & Son, contractors and builders, with which to build a dwelling house for the plaintiff in error. In its petition the lumber company alleged, substantially, that it entered into a verbal contract with Gillespie & Son, contractors and builders, whereby it furnished them with lumber and material in the sum of $793.85, with which to construct a residence building for D. F. Harness, on the corner of Eighth and Broadway, Oklahoma City, and that the same was used in the construction of said building, with the exception of a small amount returned to it by Harness, and for which it gave him credit in the sum of $47.91; that it received the further sum of $200 cash from Gillespie & Son on said account, leaving a balance due and unpaid in the sum of $545.94; that on or about the 3d day of July, 1903, Gillespie & Son abandoned their contract for the construction of said house, and thereupon Harness requested the defendant in error to continue delivering lumber and material necessary to complete its construction, giving his promise to pay for the same; that said request was complied with, and the lumber and material necessary for the completion of the construction of said house was delivered by defendant in error; that during the month of August, 1903, the defendant in error was preparing to file a materialman's lien on the premises to secure its claim for the lumber furnished in the construction of the house, but, upon the request of Harness to file no lien and to take no steps for the collection of said account and upon the assurance and promise that he, the said D. F. Harness, would assume the payment thereof in full for all material furnished, and relying thereon, the defendant in error refrained from filing and establishing its lien to secure its account, and thereafter, and after the time for filing said lien had expired, it presented its account to Harness and requested payment, which was refused; that by reason of the promise to pay, and on account, and in consideration of which the defendant in error refrained from causing to be filed its lien, the said Harness became liable to pay the defendant in error the amount of its claim in the sum of $545.94, with interest thereon from the _____ day of September, 1903. For his answer, plaintiff in error set up (1) a general denial; (2) alleged, substantially, that he had entered into a contract with Gillespie & Son, contractors and builders, to erect a dwelling house for him at the price and sum of $2,562; that said Gillespie & Son were to furnish all the material and construct said house; that the McKee-Brown Lumber Company was advised and knew of such contract, and further knew that the contractors were to furnish and pay for all the material themselves; that on the _____ day of August, 1903, he had paid to Gillespie & Son on the contract for the building of said house the sum of $2,244.68, leaving a balance due of $317.32; that the McKee-Brown Lumber Company was advised of such payment, and knew that Gillespie & Son had purchased material to the amount of $459.75 of the T. F. Sullivan Lumber Company; that the said lumber company has instituted suit in the district court for the indebtedness against plaintiff in error for said lumber; and that, if the defendant in error was entitled to anything on its account, it would only be its pro rata share of $317.32 due on his contract with Gillespie & Son. The issues thus joined were tried to a jury, and a verdict returned in favor of the defendant in error for the amount of its claim in the sum of $545.94. A motion for a new trial being overruled and exceptions saved, this appeal is brought here upon petition in error and case-made for review.

Since the filing of the case-made plaintiff in error, on motion was permitted to amend under section 1, art. 4, of chapter 28 of the Session Laws of 1905, attaching a recital to the effect that the case...