McDermott v. Woods

Opinion by Mb. Justice McCollum, The claim in this case is, “ one hundred and eighty-one dollars for extra materials furnished and extra work done in the building of a kitchen and porch.” It appears that the plaintiff agreed to furnish the materials, and build for the defendant a house and kitchen for the sum of 11,325; that he hag substantially performed his contract, and has received the consideration for it. The only dispute between them relates to the claim for extra work and materials, the plaintiff alleging that extra materials were furnished, and that extra work was done by him, on the suggestion of the defendant, and his promise to pay for the same, and the defendant contending that the work was done, and that materials were furnished, under the contract for the construction of the house and kitchen. The statement of the claim' is not in compliance with the rule of court. It is not “ verified by affidavit.” “ A specification of the items of the claim ” is not contained in or filed with it. We cannot ascertain from it the kind, amount, or value of the materials furnished, or of the work done. The affidavit of defence is somewhat informal, but it is a substantial denial that any extra work was done, or that any extra materials were furnished. The learned judge of the court below thought this denial was not sufficiently specific to put the plaintiff upon proof of his claim, and virtually instructed the jury that their verdict should be for the full amount of it, less a small item of set-off, which was undisputed. This instruction was founded upon a rule of court, which provides that “ all items of book-accounts and other claims, not specifically traversed or denied, under oath or affirmation, shall be taken as admitted, and no proof thereof shall be required on trial.” But the rule in question is, we think, limited to cases in which the claim is stated or declared upon in conformity with the preceding rules, and is not applicable unless the statement is “ verified by affidavit,” or “ a specification of the items of the claim ” is filed with it. As the statement in the case at bar is defective in these essential particulars, the plaintiff has the burden of establishing his claim by appropriate evidence. It is admitted that the plaintiff agreed to furnish materials, and build a house and kitchen, [359] for a sum or price which he has received. He now demands an additional sum for extra work done and materials used in their construction, and the defendant replies, in substance, that the contract covered all the materials furnished, and all the work done. This reply is, under the pleadings in the case, sufficient to put the plaintiff upon proof of his claim, and we therefore sustain the specifications of error. Judgment reversed and venire facias de novo awarded.