McCune v. Ratcliff

• Citation: 88 Kan. 653,129 P. 1167
• Decision Date: 08 February 1913
• Docket Number: 17,758
• Parties: F. G. MCCUNE, Appellant, v. J. M. RATCLIFF, Appellee
• Court: Kansas Supreme Court

129 P. 1167

88 Kan. 653

F. G. MCCUNE, Appellant, v. J. M. RATCLIFF, Appellee

No. 17,758

Supreme Court of Kansas

February 8, 1913

Decided January, 1913.

Appeal from Sedgwick district court, division No. 1.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. EVIDENCE--Admission--Not Error. Rulings upon the admission of testimony are examined and approved.

2. BUILDING CONTRACT -- Defective Construction -- Measure of Damages. The decision in McCullough v. Hayde 82 Kan. 734, 109 P. 176, relating to the measure of damages upon a building contract for defective construction, is followed.

3. INSTRUCTIONS--Measure of Damages. Failure to give an instruction stating the measure of damages is immaterial where the evidence is confined to specific items set out in the pleadings, and the instructions restrict the jury to the consideration of such items, and no request is made for an instruction upon that subject.

Adams & Adams, of Wichita, for the appellant.

George McGill, and Blood & McCormick, all of Wichita, for the appellee.

OPINION

BENSON, J.:

This is an action to recover the balance alleged to be due on a written contract for the construction of a two-story brick business building and for alleged extra work. A counterclaim was interposed for damages for alleged defects in the plans furnished by the contractor and for defective workmanship. The claim for extra work was denied. The contract price was $ 7725, upon which there was a balance of $ 376.28 unpaid, and the value of the alleged extra work was claimed to be $ 164.65. The defendant claimed damages to the amount of $ 1585. A verdict was returned in favor of the defendant for $ 450.

The appellant alleges error in the rulings upon evidence and in the instructions.

Conflicting evidence was given upon the claim for extra work and upon the counterclaim. In the absence of special findings we are unable to determine how much, if anything, was found due for extra work, or what items of damages specified in the counterclaim were allowed. The amount allowed the appellee was well within his evidence of damages. The testimony tended to prove serious defects, requiring the rebuilding of the front wall above the first story, strengthening the second floor joists, and other necessary work to make the building conform to the contract.

The principal complaint of the ruling upon evidence relates to the admission of the testimony of an architect who had examined the building and detailed the manner of its construction, the defects therein, and the nature and probable expense of necessary repairs, He was allowed to testify to particulars wherein the job had not been done in a workmanlike manner. Counsel say that the witness was asked and allowed to answer numerous questions each of which was objected to. These objections are now insisted upon. Upon this very general complaint the questions and answers have been examined without finding any erroneous rulings. The witness was an architect of experience and competent to give opinions upon the matters covered by his examination. Other witnesses,...