Green Bay Lumber Co. v. Smutney
Green Bay Lumber Co. v. Smutney
Opinion of the Court
About the first of September, 1892, the plaintiff entered into a verbal agreement with the defendant A. Smutney for the erection of a double one-story brick store building and a coal house, on two lots owned by him in the town of Vail. All labor and materials required were to be furnished by the plaintiff, and in payment it was to receive a reasonable price for what it should furnish, the amount not being agreed upon. The buildings, were erected according to the agreement, the plaintiff furnishing whatever was required for their construction. Payments on the contract to the amount of two thousand and twenty-one dollars and fifty cents have been made by Smutney. The plaintiff claims a balance due of seven hundred and eighty-eight dollars and forty-five cents. Smutney claims to have paid the full amount due under the contract, and ninety-six dollars and fifty cents in addition, andhe demands judgmentforthatamount. The district court found that the plaintiff was entitled to recover one hundred and twenty dollars, with interest thereon from the tenth day of November, 1892.
The only question we are required to determine is the amount which the plaintiff is entitled to recover. The books of the plaintiff show charges against Smutney on account of the buildings, to the amount of two thousand eight hundred and nine dollars and ninety-five cents; and R. E. Grayson, the agent of the plaintiff, who made the contract in its behalf, and superintended its performance, testifies that the charges are correct. It is shown that at least one thousand one hundred and six dollars and seventy-five cents of the total amount
There is irreconcilable conflict in the evidence, and it cannot be said to establish beyond the probability of error the exact sum to- which the plaintiff is entitled. We are satisfied, however, that it is not less than five hundred and six dollars and ninety-two cents, with interest thereon at six per cent, per annum from the tenth day of November, 1892, or for three hundred and eighty-six dollars and ninety-two cents, besides interest, more than the amount allowed by the district court. A decree in favor of the plaintiff for five hundred and six dollars and ninety-two- cents, with interest as stated, and for the foreclosure of the mechanic’s lien, will be rendered- in this court, or, at the option of the plaintiff, the cause will be remanded for such a decree in the district court. — Modified and affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.