Taulbee v. Moore

• Decision Date: 03 June 1899
• Citation: 51 S.W. 564,106 Ky. 749
• Parties: TAULBEE v. MOORE. [1]
• Court: Kentucky Court of Appeals

51 S.W. 564

106 Ky. 749

TAULBEE v. MOORE. ^[1]

Court of Appeals of Kentucky.

June 3, 1899

Appeal from circuit court, Montgomery county.

"To be officially reported."

Action by George W. Moore against J. B. Taulbee to recover money due upon a contract. Judgment for plaintiff, and defendant appeals. Affirmed.

E. C O'Rear, for appellant.

W. A De Haven and Tyler & Apperson, for appellee.

BURNAM J.

This suit was instituted by appellee to recover a balance of $258.68 alleged to be due upon a contract made with appellant to build an addition to his house at an agreed price of $458.68, $200 having been paid in cash. Appellant, in his original answer to appellee's claim, said that the work was not done in a workmanlike manner, and alleged that it was a part of the parol contract between them that the brickwork was to be executed so as to leave the inside surface of the walls as smooth as the outside; that the joints were all to be struck and pointed, so as not to require plastering, and that appellee had violated this provision of the contract and left the inside surface of the wall so rough and unsightly as to require it to be plastered, which would cost him at least $40; that he had been damaged in the sum of $25 by reason of the lintels put in the building not being of good material; that the guttering had been changed, so as to cause him to spend $3; that appellee failed to make a valley in the roof, which caused the water to run down into the building, to his damage in at least the sum of $10, and that he had allowed rubbish to fall into his cellar, to his damage of $2.50; that appellee was indebted to him for $45 for medical services rendered to one Hill, at his special instance and request, and for an account due the firm of Taulbee & Hayden, which had been assigned to him, for $29 and by an amended petition appellant alleged that it would cost him at least $300 additional expense to take down the brick walls erected by appellee and rebuild them with struck joints on the inside, as provided by the contract,--all of which he pleads by way of set-off and counterclaim against appellee. The trial resulted in a verdict and judgment for appellee for the amount sued for, which we are asked to revolve on account of several alleged errors to appellant's prejudice.

It is contended that the court erred in permitting appellee to state to the jury that the work was done according to the contract. As the contract was a verbal one, and the parties differ essentially as to its terms, it seems to us, after giving his version of it, appellee was entitled to state to the jury that the work had been performed in accordance therewith. Another ground relied on is that the trial court erred in refusing to allow appellant to introduce his son as a witness to testify to facts which should have been properly introduced in chief after appellee had closed his testimony. The only reason assigned why this witness was not introduced at the proper time is that counsel for appellant did not know what his testimony would be at that time. This is a matter that rests very largely in the discretion of the trial judge, and will not be interfered with...