Page v. Nicholson & Co.

Morgan, J. Defendants appeal from a judgment condemning them to pay the plaintiff $984 89, for extra work done od a certain building constructed for them by plaintiff. The .allegation in the petition is that during the progress of the work certain alterations and additions were made thereon at the request of the defendants, and their claim for the amount above stated is the result of this work. The terms of the contract were that “no extra to be admitted or allowedfor, unless executed under written authority,” * * * “ and all such omissions, additions or alterations shall be estimated for, and tbe value thereof agreed upon by the superintendent, and added to or deducted from the contract sum, as the case may be, by an endorsement, or no allowance will be made for the same by tbe other party.” *117 On the trial the plaintiff offered to prove and did prove by parol, items of extra work amounting to $1378 70, which is more than the sum claimed to be due. To this evidence the defendants objected on the grounds, first — that, these items could not be proved by parol, under the contract, aod second — that they were outside the contract and in no manned connected with' the specifications in the contract, which was contrary to. the allegations in the petition. Both objections were good, and the testimony should have been excluded. This leaves the plaintiff without any case. It is therefore ordered, adjudged and decreed that the judgment of the District Court be avoided, annulled and reversed, and that there be judgment in favor of defendant with costs. Rehearing refused.