Epitomjized Opinion

First Publication of this Opinion

Original action in the Common Pleas for materials, work and labor furnished by plaintiff, the Taplin-Rice-Clerk'n Co. in installing a heating plant in the house of defendant Harley V. Garman. Defendant Thomas H. Hazlett contracted to build a house for Gar-man and contracted with plaintiff to place the heating plant therein. After the completion *156of the work plaintiff, who was not paid, filed an affidavit with the county recorder to- perfect a mechanic’s lien on Garman’s property and instituted this action as aforesaid, and also for foreclosure on the mechanic’s lien. At the trial verdict and judgment were rendered for defendants. Plaintiff brings error. Held:

The testimony fully establishes that the plant did not meet the requirements of the contract. The evidence is clear that also a copy of the affidavit for mechanic’s lien' was not served on Garman as required by law. It is true that the answer of Hazlett did not tender an issue and is defective, but the case proceeded to trial upon the issues made by the answer of Garman and the reasons which caused the case to fail against Garman will apply also to Hazlett. Judgment affirmed.