McCarty v. Hampton Bldg. Ass'n

• Decision Date: 12 June 1883
• Citation: 16 N.W. 114,61 Iowa 287
• Parties: MCCARTY v. THE HAMPTON BUILDING ASSOCIATION
• Court: Iowa Supreme Court

16 N.W. 114

61 Iowa 287

MCCARTY v. THE HAMPTON BUILDING ASSOCIATION

Supreme Court of Iowa, Des Moines

June 12, 1883

Appeal from Franklin District Court.

ACTION in equity for the establishment of a mechanic's lien. Judgment for the plaintiff, and defendant appeals.

AFFIRMED.

McKenzie & Hemingway, for appellant.

Henley & Gilger, for appellee.

OPINION

SEEVERS, J.

In July, 1880, the plaintiff and defendant entered into a contract in writing, whereby the plaintiff contracted to construct and place in a building erected by defendant a steam heater, in accordance with certain specifications. The plaintiff claims to have complied with the contract on his part, and seeks in this action to recover a balance due him and establish a mechanic's lien therefor on the real estate. The defendant pleaded: First, that the plaintiff guaranteed that the heater would not consume more than one hundred and twenty-five tons of soft coal annually, but that in truth and in fact much more than the quantity of coal above stated is required to properly heat the building; Second, that to induce the defendant to contract with the plaintiff, the latter represented that the building could be properly heated with one hundred tons of soft coal annually, but that said representations were false and fraudulent, and that it will take three hundred tons of coal to properly heat said building with the heater; and, Third, that the plaintiff agreed and undertook to construct and place the heater in the building aforesaid in a skillful and workmanlike manner, which he failed to do, and thereby the defendant has been greatly damaged.

I. There is no sufficient evidence to establish the charge of fraud, nor is there any evidence tending to show that the heater was not properly constructed, or was negligently set up. We do not understand counsel for appellant to claim that the court erred in any respect, except in overruling the first defense above stated. The plaintiff agreed in writing to construct the heater according to certain specifications. What the specifications were, the record fails to disclose. But it is not claimed that there was anything in the specifications in relation to the quantity of coal that would be required. As the contract and specifications were in writing, it is doubtful, to say the least, whether any oral representations made prior to or at the time the contract was entered into was admissible to add to or change the terms and conditions of the contract. Conceding, however, that this may be done, the president of the defendant testified that, prior to the execution of the contract, the plaintiff represented that it would not take more than one hundred tons of coal to properly heat the building during an ordinary winter. The plaintiff admitted that he so represented,...