Justus v. Myers

• Decision Date: 09 June 1897
• Citation: 68 Minn. 481,71 N.W. 667
• Parties: JUSTUS v MYERS ET AL.
• Court: Minnesota Supreme Court

68 Minn. 481

71 N.W. 667

JUSTUSvMYERS ET AL.

Supreme Court of Minnesota.

June 9, 1897.

(Syllabus by the Court.)

1. In an action to establish and foreclose a mechanic's lien it is held that the trial court erred when admitting in evidence a certain exhibit, which tended to alter, vary, and contradict the terms and conditions of the contract between the parties under which the materials were furnished and the labor performed.

2. Held, further, that certain findings of fact were not warranted by the evidence.

Appeal from district court, Ramsey county; J. J. Egan, Judge.

Action by Philip Justus against Walter F. Myers and others. Judgment for plaintiff, and defendants appeal. Reversed.T. S. Tompkins and Edmund S. Durment, for appellants.

Schoomaker & Fleming, for respondent.

COLLINS, J.

Action to establish and foreclose a mechanic's lien on account of materials furnished and labor performed in the construction of a combination heating apparatus in a dwelling house belonging to defendant Mary F. Myers. The complaint alleged the furnishing of the material and the performance of the labor at the request of the owner, and the reasonable value thereof, and a promise to pay the amount stated to be such reasonable value. The answer made by the owner alleged that the material was furnished and the labor performed under and by virtue of a contract whereby plaintiff, in writing, proposed to defendant owner and offered to construct the heating apparatus for a certain specified sum of money, which proposition the latter verbally accepted. A copy of the written proposal was made a part of the answer, and, in so far as the capacity of the apparatus was concerned, it was plain and unambiguous. It contained the following language: “Heating plant to be guarantied to heat rooms to seventy-five degrees in the coldest winter weather. Heating plant to be tested by owner before accepted. If same is not entirely satisfactory, it is to be made so by additional radiation, or anything else necessary, without additional expense to owner.” The answer also alleged a breach of this contract, in that the apparatus was not of sufficient capacity to, and did not, heat the house according to the contract, was not satisfactory to the owner, had not been accepted by her, but, on the contrary, she had specially notified the plaintiff that she would not accept it. The answer further alleged other breaches of the contract, which need not be particularized at this time.

1. It was error for the court below to admit plaintiff's...