Opinion
April, 1899.
Lee McCallum, for appellant.
Arthur C. Palmer, for respondent.
This action was brought by the plaintiff, as assignee of the cause of action, to recover the value of work, labor and materials furnished by his assignors to the defendant. The pleadings were verified. The sufficiency of the denial of the assignment contained in the answer may be questioned, but in fact the trial proceeded upon the assumption that the assignment had been put in issue, and the testimony of the plaintiff utterly failed to establish an assignment.
But, independently of that question, the dismissal of the complaint for insufficiency of proof cannot be disturbed for the following reason, viz.: The answer fully and sufficiently denied the allegations of the complaint as to the performance of the work and labor, and the furnishing of the materials, and upon these points the plaintiff neither gave nor offered to give testimony. He should at least have moved for leave to complete his case and offered to prove performance, but he closed his case without making any such effort. Judgment should be affirmed, with costs.
MACLEAN and LEVENTRITT, JJ., concur.
Judgment affirmed, with costs to respondent.