Harkrider v. Howard

WOOD, J., (after stating the facts). The above instructions granted by the court ignored the defense made by the appellant J. H. Hamlen & Son to the effect that it had purchased the staves without any notice of appellee’s claim for lien and that at least part of the labor for which appellee claimed a lien was done while he was a partner with Harkrider in the production of the staves, and that the payment by Hamlen & Son to Harkrider for the staves settled for the labor of appellee on the staves while he was Harkrider’s partner. True, in another instruction the court told the jury in substance that if Hamlen & Son had settled with Harkrider without knowledge that plaintiff claimed a lien, that plaintiff could not recover of Hamlen & Son. But the instructions did not present a harmonious charge on this issue. As a specific objection was made the court should have so framed its instructions as to make the charge as a whole harmonious. The court did not in any of its instructions present appellants’ theory that appellee could not claim a lien and recover for labor done in the production of the staves while he was Harkrider’s partner and for which the latter had been páid. The appellants were entitled under the evidence to have these defenses submitted in a consistent charge. The court over the objection of appellants permitted testimony as to the contract price of the staves; as to whether anything was paid for culls, whether the culls were dead culls and their value, and as to the reasonable Avorth of plaintiff’s labor. This testimony, and the instructions based upon it, were not germane to the issue as we conceive it, but we would not reverse for these rulings because we do not consider them prejudicial. We call attention to them in order that they may be eliminated and time thereby saved on a new trial. We find no other reversible error in the record, but for the above the judgment is reversed and the cause is remanded for a new trial.