Opinion
June, 1902.
Miller, Decker Miller, for appellant.
Simon T. Stern, for respondent.
The plaintiff suing to recover the sum of $124.50, balance due under contract for work and for extras, and the defendant counterclaiming in the sum of $129, for breach of contract, the justice rendered judgment in favor of the plaintiff for $64.50, to which damages and costs were added. The only issue of law, faintheartedly pressed upon this appeal, is that the plaintiff was precluded from recovering for extra work done at the instance of the defendant unless such agreement were in writing and signed by the parties, as provided by the specifications. This contention is not good. While the plaintiff contracted to do "brick work, rough and front work" on six houses to be erected by the defendant at $250 the house, and, "according to plans and specifications" drawn by one Dickerson, it does not appear that he incorporated all the provisions of the specifications into his contract, to be a part thereof, with the defendant, or, even if incorporated, that the same might not be subsequently modified, peculiarly so when it does not appear, strange as it may seem, that the defendant ever furnished the specifications or a copy to the plaintiff or that the latter ever saw them. The plaintiff proved at least the sum of $52 as balance and $22.50 for extras, while the testimony of the defendant upon his counterclaim was confusing and confused, and at times even inconsistent. No reason appears, therefore, for disturbing the judgment of the trial justice upon the facts.
FREEDMAN, P.J., and GILDERSLEEVE, J., concur.
Judgment affirmed, with costs.