Lewis v. Utah Construction Co.

Citations

• 10 Idaho 214
• 77 P. 336
• 1904 Ida. LEXIS 22

Syllabus

<p>CONTRACT — T?. A TT,~RO A T> CONSTRUCTION — COMPLAINT-DEMURRER—ESTIMATES — Classification—Evidence—Variance Between Allegations and Proof — Instructions.</p> <p>1. Complaint states a cause of action.</p> <p>2. The question of whether the estimates had become an account stated was left to the jury under proper instructions.</p> <p>3. Where a motion is made to compel the plaintiffs to elect upon which of several causes of action or counts they would proceed to trial, it was not error for the court to reserve its decision and thereafter try the case upon the theory that said motion had been sustained and try the case upon the first and third causes of action stated in the complaint.</p> <p>4. Where the parties to an action testify to an express contract but differ as to the amount to he paid or the contract price for the services rendered, evidence of the actual cost of the performance of the work is properly admitted as it may afford some reasonable ground for believing that the contract was for the price nearest the cost.</p> <p>5. No variance between the allegations and the proof is deemed to be material unless it had actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.</p> <p>6. Where certain material evidence is rejected, but the record shows that the evidence rejected was given by another witness, the error is immaterial and not prejudicial.</p> <p>7. Instructions examined and held to properly state the law applicable to the evidence introduced on the trial.</p> <p>(Syllabus by the court.)</p>