School-Dist. No. 2 in Wabaunsee County v. Boyer
| Decision Date | 11 April 1891 |
| Citation | 46 Kan. 54,26 P. 484 |
| Parties | SCHOOL-DIST. NO. 2 IN WABAUNSEE COUNTY v. BOYER et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. The plaintiff, who alleges the construction of a building under a written contract with the defendant, and who asks a recovery of the contract price, may subsequently amend the petition so as to claim the actual value of the materials furnished and the work performed upon such terms as the court may deem just.
2. Where the building is erected upon and becomes a part of the realty of the defendant, and, although defective in some respects, is of real and substantial value to the defendant for the purposes intended, the plaintiff may recover from the defendant what the building is reasonably worth to him.
3. The testimony in the case found to be sufficient to sustain the overruling of a demurrer to plaintiff’s evidence.
Error from district court, Wabaunsee county; WILLIAM THOMPSON Judge.
J. F Peffer, for plaintiff in error.
George G. Cornell, for defendants in error.
This was an action brought by Boyer & Boyer to recover $1,030 for furnishing material and constructing a school-house in school-district No. 2 in Wabaunsee county, and to foreclose a mechanic’s lien which they had filed against the school-district and building. They alleged in their petition as a first cause of action, that on or about the 20th day of July, 1889, they entered into a written contract with the school-district board to furnish material and erect for the school-district a school-house, and that soon after the making of the contract they commenced the work, which was completed on October 7, 1889. They state that they performed all the conditions of the contract on their part, but that the school-district had failed and refused to pay them the contract price, or any part thereof. It is further alleged that they duly perfected the mechanic’s lien to which they were entitled, and they asked for a foreclosure of the same. As a second cause of action it was alleged that before the signing of the written contract set out in the first count of the petition they had entered into an oral contract with the school-district to erect the school-house in the manner and upon the terms set out in the written contract, which oral contract was not reduced to writing until July 31, 1889, and that, prior to the signing of the written contract, work had been commenced, and the foundation of the building nearly completed, and that they were permitted by the school-district to carry on the building to completion, and that the material furnished and the work and labor performed for and upon the building were worth the sum of $1,030, no part of which had been paid. The defense of the district was a non-performance of the conditions of the contract by the defendants in error. The case was tried by the court without a jury, and, after the evidence of the Boyer brothers had been introduced, a demurrer to the evidence upon each count of the petition was filed by the school-district, and the court sustained the demurrer as to the first count, and overruled it as to the second count. After hearing the evidence of all the parties, the court subsequently rendered judgment against the district for $739.95, together with interest and costs. Two grounds of error are assigned for a reversal: First, that the court erred in permitting the Boyer brothers to amend their petition during the progress of the trial by setting up the second count, which has been referred to, and which seems to have been pleaded with a view...
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