Salisbury v. Wellman Electrical Co.

• Decision Date: 26 January 1917
• Citation: 191 S.W. 289,173 Ky. 462
• Parties: SALISBURY ET UX. v. WELLMAN ELECTRICAL CO.
• Court: Kentucky Court of Appeals

191 S.W. 289

173 Ky. 462

SALISBURY ET UX. v. WELLMAN ELECTRICAL CO.

Court of Appeals of Kentucky.

January 26, 1917

Appeal from Circuit Court, Boyd County.

Action by the Wellman Electrical Company against William Salisbury and wife. Judgment for plaintiff, and defendants appeal. Affirmed.

Richard D. Davis and S. S. Willis, both of Ashland, for appellants.

Rufus S. Dinkle, of Catlettsburg, for appellee.

MILLER J.

The appellants, William G. Salisbury and E. J. G. Salisbury his wife, own the Gaylord Building, on the southeast corner of Sixteenth and Greenup streets, in the city of Ashland. As originally constructed the building contained two stories. In May, 1914, the appellants put three additional stories on the building, thus making it a five-story structure. In making these improvements the contract to do the electrical wiring and similar work, in the erection of the third, fourth, and fifth stories, was awarded to the appellees Harlan P. Wellman and Haskell F. Wellman, doing business as the Wellman Electrical Company, for the sum of $265.25. Subsequently appellants determined to make certain changes and additions in the first and second stories, and the appellees were employed to do that work, without naming, however, any specific sum for which it was to be done. The work was completed in November, 1914; and, the parties having failed to agree upon a settlement, this action was filed on January 4, 1915, by the appellees, seeking to recover the contract price of $265.25 for the improvements on the three upper floors, $440.06 as the reasonable price and value of the material and labor furnished in improving the two lower stories, and to enforce a lien upon the premises to secure the payment of both sums.

The answer traversed the petition; and, by agreement, the issues thus raised were referred to a jury. Upon a trial the court entered a judgment for the contract price of $265.25 for work upon the three upper stories, which was not controverted by the proof, and submitted to the jury the issue raised as to the value of the work and material furnished on the first and second stories.

At the close of the proof the plaintiffs amended their petition by stating their causes of action in two paragraphs, the first paragraph declaring upon the express contract to do the work upon the three upper stories for $265.25, and the second upon an implied contract for $440.06, the reasonable value of the material and labor furnished upon the two lower stories.

The jury found for the plaintiffs in the sum of $440.06 the amount claimed; and from a judgment upon that verdict the defendants appeal. While the appeal is from the judgment as a whole, which involves both sums sued for, the argument and grounds for a reversal relate solely to errors committed in connection with the recovery of the $440.06 for material and labor upon the first and second stories.

Appellants assign four grounds for a reversal: (1) That the verdict is not sustained by sufficient evidence, and is contrary to the weight of the evidence; (2) that the court erred in refusing to permit the jury to view the work done by the plaintiff (3) that the court erred in submitting the case to the jury as to Mrs. Salisbury; and (4) that there was a material variance between the pleadings and the proof of the plaintiffs.

1. As above stated, there is no controversy here as to the contract for wiring the three top stories for $265.25. The court did not submit that question to the jury, because there was no evidence tending to dispute the contract, or the work done under it. After the three top stories had been completed however, it was decided to put in a conduit service, and in doing this the wires were placed in small pipes for a distance, leading from the corner of the building to the hallway. In doing this work certain wiring and repairs became necessary in the first and second stories. The account filed with the petition sets forth each item of work done and material furnished and the charge therefor, aggregating $440.06. Appellants insist that this extra work was of little or no magnitude, and that a bill therefor for $440.06, which is nearly $200 more than the contract price for the work in the three upper stories, is exorbitant upon its face. And in this connection it is insisted that appellees failed in their proof to substantiate the charges. The argument is that the plaintiffs failed to show by competent proof what work was done. This contention, however, is based upon the fact that Harlan P. Wellman, one of the plaintiffs, testified that his workmen would turn in at the end of each day tickets or slips showing what material had been used and the time the men had worked, and that these tickets were delivered to the bookkeeper who charged them against the appellants; that Harlan B. Wellman did not know what had been done, and was not a competent witness to show what had been done; and that the bookkeeper did not testify.

The proof, however, further shows that Harlan P. Wellman had immediate supervision of the work, and visited the building every day, spending from one to two hours each trip in supervising and directing the work. He testified specifically to the several items of the account sued on showing that he kept in touch with the work, and personally knew that the account correctly showed the amount of the material and labor used in the building. He was corroborated by Dawson and Williams, two of his workmen.

When Harlan Wellman had direct supervision of the work and personally knew what had been done under his direction, it was competent for him to show those facts. The bookkeeper knew nothing about the work; she merely entered in the book the items shown by the slips returned to the office. But Wellman spoke from personal knowledge. He did not have to do the work himself or make the entries upon the book in order to make his testimony competent. He directed the work, saw it while in process of construction, and after it had been finished, and any one could have made the addition showing the aggregate of the items testified to by him.

On the other hand, appellants introduced no evidence directly tending to contradict or disprove the evidence of the appellees with reference to the labor and material furnished and the prices charged in the itemized account. Dr. Salisbury testified that he did not keep an account of the labor and material furnished, but only stated that, in his opinion the labor and material claimed were not furnished.

King, the architect in charge of the work, testified that he did not keep an account, nor did he know the amount of labor and material furnished and paid for by the appellees, but gave his opinion that the labor and material required in doing the extra work on the first and second stories was reasonably worth only $150. In this estimate, however, King did not include the labor and material furnished in installing the new distribution system, wiring the elevator, putting in the conduit pipes, and placing the wires therein which ran from a pole on the curb to the top of the building.

Appellants also introduced Weller, an electrician from Huntington, W. Va., who testified as to the unreasonableness of the charges.

The testimony of Wellman and his workmen was competent, and certainly tended to sustain the plaintiffs' case. And the same may be said of the testimony of the defendants as to this case. The issue thus sharply made was passed upon by the jury. The chief province of a jury being to decide disputed...