McCullough v. The S. J. Hayde Contracting Company

• Decision Date: 11 June 1910
• Docket Number: 16,588
• Citation: 109 P. 176,82 Kan. 734
• Parties: LEE MCCULLOUGH et al., a Partnership, etc., Appellees, v. THE S. J. HAYDE CONTRACTING COMPANY et al., Appellants
• Court: Kansas Supreme Court

109 P. 176

82 Kan. 734

LEE MCCULLOUGH et al., a Partnership, etc., Appellees, v. THE S. J. HAYDE CONTRACTING COMPANY et al., Appellants

No. 16,588

Supreme Court of Kansas

June 11, 1910

Decided January, 1910.

Appeal from Cloud district court; WILLIAM T. DILLON, judge.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACTS--Performance Except in Certain Particulars--Damages--Expense of Completing Contract. A subcontract for plumbing and heating work in a building amounting to over $ 7000, was performed except in certain particulars. A comparatively small expenditure was necessary to supply the omissions and remedy the defects. It is held that the reasonable expense necessary to make the work conform to the contract is the proper measure of damages to be allowed to the owner upon his counterclaim in an action against him for the contract price.

2. EVIDENCE -- Opinions and Conclusions -- Immaterial Error. The admission in evidence of a general statement of the contractor to the effect that he had performed the contract fully is not prejudicial, when testimony relating to the various items is given and findings are made thereon relating to all the defects pleaded in the answer.

3. EVIDENCE -- Collateral to the Issue--Cross-examination. It was not error to restrict the evidence to the particular defects pleaded.

4. PRACTICE, DISTRICT COURT -- Consolidation of Actions -- Amendment of Pleadings--Discretion. The refusal of the court to permit the consolidation of this action with another action in which another party was impleaded, and in refusing to allow an amendment of the answer, were within the discretion of the court, which, in the circumstances shown, was not improperly exercised.

A. L. Wilmoth, F. W. Sturges, and F. W. Sturges, jr., for the appellants.

C. C. Coleman, F. L. Williams, Park B. Pulsifer, and Charles L. Hunt, for the appellees.

OPINION

BENSON, J.:

This action is by a subcontractor for the foreclosure of a mechanic's lien. The S. J. Hayde Contracting Company entered into a contract with the Nazareth Convent and Academy to erect a building for the latter. The plaintiffs, McCullough and Bateman, entered into a subcontract for the plumbing work and to. supply and place the heating apparatus in the building. Payments were made to the subcontractors as the work progressed, amounting to $ 3800, and having, as they alleged, completed the work, they sued for the balance claimed upon the contract price and for extra work. The contracting company answered by admitting the subcontract, and alleging that it had not been faithfully performed by the plaintiffs, specifying eight particulars wherein they had failed, and pleading the alleged defects. The answer then stated:

"That by reason of the failure of the plaintiffs to perform the work and furnish the materials in manner and form and to the effect as required by said contract and specifications in the particulars enumerated, the defendants have suffered damage in the sum of $ 500."

The answer concluded with an offer to allow judgment for $ 3090, the amount sued for less the damages so claimed.

Before the trial the defendants moved for an order consolidating this action with another action previously commenced in the same court by the contracting company against McCullough and Bateman and their sureties for damages for the alleged failure of the plaintiffs in the present action to perform the subcontract. This motion was denied.

At the term in which the case stood for trial and in which it was tried the defendants asked leave to amend their answer instanter, by setting out more in detail the defects and defaults complained of. This was refused, on the ground that the proposed amendment would unsettle the issues and might compel a continuance.

At the trial one of the plaintiffs was permitted to testify generally, over the defendants' objection, that they had done everything they had agreed to do under their contract, and had complied with all the specifications. The defendants attempted to cross-examine the witness, by inquiring into details of construction and workmanship not included in the particular specifications of defects in the answer, but were not permitted to do so.

Error is assigned upon the refusal to consolidate, the refusal of leave to amend the answer, and upon the rulings relating to the testimony just referred to.

The proposed consolidation was properly denied. Another party had been impleaded in the other action, and it is not apparent why that action should be prosecuted after the defendants had confessed by their pleading in this action that the...