Turner v. Corbett

By the Court, Watson, J. This action was originally commenced in justice’s court for North Portland precinct, Multnomah county, and was afterwards appealed to the circuit court from whence an appeal has been taken to this court. The complaint alleges, in substance, that the defendant, in September, 1879, made a contract with plaintiff, whereby he agreed to pay the plaintiff one hundred and five dollars for white-washing certain cellars for him, and that plaintiff has performed a large portion of said work pursuant to said contract, and was at great expense in preparing materials and [80] implements for carrying on said work according to contract, but was prevented by defendant, acting through his agent, from so doing, and that the defendant is indebted to him on said contract in the sum of one hundred and five dollars, for which sum he prays judgment. The answer denies that the defendant is indebted to plaintiff in the sum of one hundred and five dollars, or any other sum, for white-washing said defendant’s building upori a contract, and denies all other material allegations in the complaint, except the making of the contract as alleged; and the answer alleges affirmatively that in the month of September, 1879, plaintiff and defendant entered into a contract, wherein plaintiff promised and agreed to perform and complete certain work in and about defendant’s building, in a skillful and workmanlike manner; that in consideration of said work to be performed as aforesaid, defendant promised and agreed to pay plaintiff one hundred and five dollars; that plaintiff performed his work in such an unskillful and unworkmanlike manner that defendant received no benefit therefrom, but was damaged in the sum of one hundred and twenty dollars, and prays judgment for that amount and costs. The replication denies that the plaintiff performed his work in an unworkmanlike or unskillful manner, or in such unskillful or unworkmanlike manner that defendant received no benefit therefrom, and denies that defendant was damaged thereby in any sum whatever. The case was tried by a jury, and a verdict found for the plaintiff for the full amount claimed. The only question before this court is whether the pleadings above set forth should be held sufficient after verdict. The complaint, it may be conceded, was defective; but, if taken in connection with the answer and reply, it ought to be held good after verdict, and the judgment should not be reversed. The defendant, however, in his answer, sets forth the contract, and alleges, in effect, that the work was performed, and [81] only complains of tbe unworkmanlike character of the performance. We think, in this instance, the defendant having undertaken in his answer to set out the plaintiff’s case, shows that the performance, even if incomplete, was accepted by him, and considered a complete performance, and would, to that extent, if necessary, be held to aid the complaint after verdict rendered. There was no error in the judgment of the court below, and it must be affirmed with costs. Judgment affirmed.