Gilman v. Gard

Frazer, J. The first paragraph of the complaint was, we think, good, and made a case within section 649 of the code. It is urged that it should have been averred that the work done by the plaintiff was in accordance with the contract between Gard and Gilmore and Sabine. It is alleged that the labor was done for Gard in building the mill for Gilmore and Sabine, and that the proprietors, at the date of the notice, owed the contractor $2,500 for erecting that mill. It was wholly immaterial whether that liability was upon the special contract or an implied contract to pay what the service was worth. If that liability by Gilmore and Sabine to Gard existed, no matter whether under an express or an implied contract, and if the plaintiff' was employed by Gard in doing the work, and if the proper notice was served, then the case is made which the statute was intended to provide for. Again, it is objected that the notice was insufficient, in that it did not, as the statute requires, “ particularly set forth the amount of the claim, and service rendered.” It seems to us that it did both these things. As to the amount, “ fifty dollars and seventy-five cents.” Surely that is as particular as is possible. It will be noticed that it is the amount, not the items of which the amount is composed, which is required to be stated. Then as to the service rendered, it is distinctly stated to have been for the plaintiff’s work, “ thus done,” under an employment “ as a superintendent and laborer to work in the construction of said mill,” and the mill is specified. This stat [293] nte is eminently remedial, intended for the benefit and protection of sub-contractors, journeymen mechanics and laborers, and the courts should not indulge in such niceties of construction, or such useless requirement in practice under it, as will tend to defeat its object, without insulting in any good end. This notice need not be recorded, nor need it describe the premises on which the structure has been erected. The statute does not require it. G. V. Howk, B. M. Weir, J. H. Stotsenburg and T. M. Brown, for appellants. A. Dowling and J. S. Davis, for appellee. The defendants introduced one Benton, a millwright, to testify as to the manner in which the contractors had done the work, its value, &c. He testified upon those subjects, and, on cross-examination, was allowed to státe what sum he would have undertaken to build the mill for, according to the contract. This is complained of, and was assigned as one cause for a new trial. We perceive no error in it. On cross-examination, the plaintiff had a right to ascertain the rates upon which the witness-; proceeded in making his estimates, and to test his judgment upon the subject concerning which he had been called to give an opinion. Lastly, it is urged that the finding was against the evidence. We do not think so. The judgment is affirmed, with costs.