Opinion
Decided November 15, 1929.
Appeal from Greenup Circuit Court.
D.E. ERNST for appellant.
DYSARD MILLER for appellee.
Affirming.
The Russell Lumber Supply Company, which we shall call the plaintiff sued Mrs. Alice Grooms for $1,094.25 for building material it sold Philipps Simpson, which they used in remodeling a house for her. The court peremptorily directed a verdict for the defendant, and from the judgment which followed plaintiff appeals.
The evidence is that Mrs. Grooms employed Philipps Simpson to remodel a house for her. They were to do this work and furnish this material for $4,700. Plaintiff sold and charged this material to them. Plaintiff failed to file a lien for this material but sued Mrs. Grooms for the bill.
The peremptory instruction was properly given for two reasons: Plaintiff failed to prove Mrs. Grooms promised to pay for this material sold to Philipps Simpson, and also failed to allege she made such a promise, thus failing both in its proof and its pleading. To avoid a peremptory instruction a plaintiff must have a cause of action both proven and pleaded. Utterback v. Quick, 230 Ky. 333, 19 S.W.2d 980.
Judgment affirmed.