Wolff v. Hopkins

McGtoweN, J., delivered the opinion of the court. The appellee, Hopkins, sued the appellant, Ike Wolff, in the circuit court of Washington county, filing a declaration in which he alleged that he had entered an oral contract, as a contractor, with Wolff, as the owner, to repair and remodel a certain store building occupied by the appellant, Wolff, and under such oral contract, the appellant obligated himself to pay the appellee for all labor and material used in the performance of said contract, plus ten per cent, commission on the gross amount thereof.; and that the work had been completed according to the oral contract, and there remained due to the appellee, or plaintiff in the court below, the sum of eight hundred thirteen dollars and ninety-five cents, which the owner, Wolff, defendant in the court below, had neglected and refused to pay. Attached to the declaration was what purports to be an itemized statement oí the labor and material furnished by F. A. Hopkins, Jr. There are several pages itemizing the material furnished, which total one thousand eight hundred seventy-six dollars and ninety-five cents. The balance of the account attached as an exhibit is the weekly pay rolls for labor, set out as follows: Weekly pay rolls: March 28 .$162.85 April 4.,... 174.25 April 11. 55.30 April 18 ... 168.45 April 25 160.85 *831 May 2 . 201.42 May 9. 197.31 May 16 . 192.65 May 23 . 142.80 June 6 . 66.62 June 13 .,... 6.75 June 6' .■...i. ... 54.00 June 13. 13.50 July 18 . 87.20 July 19 Framing and setting* mirrors ... 36.27 There was a verdict and judgment for the amount sued' for, eight hundred thirteen dollars and ninety-five cents, in favor of the appellee. The appéllee, Hopkins, offered to prove the amount of the above weekly pay rolls in bulk, set forth above, and testified that he had kept a book showing the names of the laborers, the amount paid to each, and the date on which paid; that the book had been misplaced and that he could not find it, but that he had furnished weekly pay rolls to Wolff, the owner. The appellant, Wolff, objected to the testimony because the labor account sued on was not itemized and attached to the declaration. The appellee did not offer to amend the account and the court first sustained appellant’s objection, but when the witness testified that he had lost this book, the court permitted the testimony to go in over the objection of the appellant, Wolff. First. The very essence of the complaint here of the appellee, Hopkins, was based upon the items of the account, and we cannot agree with counsel that it is a suit upon a contract only. It was necessary to allege and prove the items of the weekly pay rolls, for.they constitute about one-half of the account sued on in .this case, and it was necessary to attach to the declaration an itemized account of the weekly pay rolls of labor, the same as was done relative to the lumber. In fact, the appellant, Wolff, in such a suit could more readily detect error, point it out, and prove it if the names of the parties to whom the money was paid for labor and *832 tile dates were given. Then, too, the items of the pay roll cannot he proved in the manner undertaken in the court below. The items of the weekly payroll were neither completed nor proved. The appellant, Wolff, defendant in the court below, having pleaded the general issue, in our opinion, it was absolutely necessary to allege and prove all the items of the pay rolls for labor. Section 734, Code of 1906, section 517, Hemingway’s Code; Pipes v. Norton, 47 Miss. 61; Southern School Book Depository v. Donald, 115 Miss. 465, 76 So. 519; Levy v. Bank, 124 Miss. 325, 86 So. 807; and Finck & Co. v. Brewer, 133 Miss. 9, 96 So. 402. Second. There was sharp dispute as to the terms of the contract for the construction of the awning which Huddleston and Wolff claimed was a separate contract for the total sum of three hundred dollars, and which Hopkins disputed. This issue should have been submitted to the jury. Third. There was an error also of ten dollars, a double charge, which was ignored by the court in its instructions. For the reason indicated, this cause will be remanded to the court below to be tried anew. Reversed and remanded.