
    Newell v. The Mahaska County Savings Bank et al.
    1. Eeferee: re-submission : practice. A party will not be allowed to file an amended pleading tendering a new issue after a referee’s report has been made, and thereupon have a re-submission to the referee, without at least offering a reasonable excuse for neglecting to file the amendment before the referee’s report is made.
    
      Appeal from Mahaska District Court.
    
    Tuesday, June 3.
    This is an action on account of materials furnished for a building, and to establish a mechanic’s lien. Judgment was rendered in favor of plaintiff for $40.70. The plaintiff appeals. The facts are stated in the opinion,
    
      John F. Lacey, for appellant.
    
      M. E. Cutts, for appellee.
   Day, J.

— On the 15th day of December, 1876, the plaintiff filed his petition alleging that the defendant bank is a corporation, and that defendant Montgomery was a contractor, engaged m building a bank building for said savings bank; that plaintiff made a sub-contract with Montgomery, principal contractor, to furnish materials for •said building, for which plaintiff claims a mechanic’s lien.

The cause was referred to L. H..Hole, Esq., who, on the 17th day of December, 1877, filed the following report:

“1. That the controversy'is caused by'a mistake caused by one Finkbine (who was architect and superintendent of the building of the Mahaska County Savings Bank), in reducing a bid of plaintiff to furnish stone for the building of said bank made for seventy-five cents a foot plain work, and one dollar a foot moulded work, to dollars and cents. The amount, according to said architect’s calculation, was six hundred and seventy-three dollars and eighteen cents.
“2. That said calculation was made for accommodation of bidders, without either being authorized or forbidden by the said bank.
“3. The difference between the said calculation and the true calculation, predicated on said amounts per foot as per bid, is ninety-nine dollars and fifty-three cents.
“4. That said plaintiff, under the supposition that said Finkbine’s figures were correct, left them with the bank to guide the chief contractor.
“5. That a few days after this, on June'2, 1876, defendant J. C. Montgomery made a contract with said bank for the construction of said building, including the cut stone, which the plaintiff was to furnish.
“6. That the said contract was predicated on the figures left with the bank by plaintiff, for which cut" stone was to be furnished, to-wit: six hundred and seventy-three dollars and eighteen cents.
“7. Plaintiff recognized said defendant as chief contractor.
“8. That plaintiff served the bank with notice, with statement of account under oath, claiming a mechanic’s lien on east of lot 8, block 12, Oskaloosa, old plat, within thirty days after completing the work. Said lien was at the same time duly filed in the clerk’s office of said county, as provided by law.
“9. Extra work was performed by plaintiff, as' ordered by the chief contractor, Montgomery, in the amount of six dollars and fifty cents.
“10. Plaintiff has received on account of said cut stone the sum of six hundred and thirty-eight dollars and ninety-eight cents from defendant Montgomery.
“As conclusions of law I find, as claimed in the pleadings, that plaintiff held a sub-contract with defendant Montgomery for the furnishing of stone for said building; that the consideration for furnishing said cut stone was six hundred and seventy-three dollars and eighteen cents; that there is due and unpaid on said sub-contract the sum of thirty-four dollars and twenty cents, and the further sum of six dollars and fifty cents for extra work — total, forty dollars and seventy cents. I recommend a judgment ior plaintiff of forty dollars and seventy cents, and costs, and that a mechanic’s lien be established on the real estate above described.”

After the report was made out the plaintiff’s attorney asked of the referee leave to file an amended petition, which was granted.

On the 18th day of December, 1877, the plaintiff filed an amendment to the petition alleging that after part of the work had been performed plaintiff discovered the mistake, and notified the bank and Montgomery thereof, and refused to proceed further in the same, and that defendant orally promised and agreed to rectify the mistake, whereupon plaintiff resumed and completed the work.

The plaintiff thereupon filed a motion to compel the referee to amend his report, and make it more complete and specific, in this:

“1. That he find the amount of the damages caused by the mistake referred to.
“2. That he report more fully the circumstances and cause of the mistake.
“3. That he report who is benefited and who damaged by said mistake, and how much.
“4. That lie report by whom said Einkbine was employed to superintend said bank building.
■ “5. That be report fully tbe circunstanees under wbicb tbe mistake was made.
“6. To report wbat plaintiff did in relation to said mistake as soon as discovered, and set out the original bid of plaintiff in writing, as introduced in evidence.”

Tbe court overruled this motion, and on motion of tbe defendant confirmed the report, and entered judgment and decree in accordance with tbe referee’s recommendation. Tbe plaintiff thereupon filed a motion for a new trial, in which, so far as we are able to determine from tbe record, the objection was for tbe first time presented to tbe court that tbe referee bad failed to pass upon tbe issue as to tbe new contract of tbe defendant to correct tbe mistake. Tbe court overruled tbe motion for a new trial, and tbe plaintiff excepted.

We are unable to discover any error in tbe rulings of tbe court. Tbe report of tbe referee passes upon all tbe issues involved at tbe time tbe report was filed. It appears that tbe cause was submitted to tbe referee on tbe 29th day of September. Tbe plaintiff must have been then aware of tbe evidence bearing upon tbe promise of tbe defendant to rectify tbe mistake. Tbe report of tbe referee was not filed until tbe 17th day of December, and not until tbe day following did the plaintiff file tbe amendment to bis petition. A party ought not thus to be allowed to file an amended pleading and tender a new issue after a referee’s report has been filed, and thereupon to have a re-submission to tbe referee, without at least offering some excuse for neglecting to file tbe amendment before tbe making of tbe referee’s report. Besides, tbe motion to refer the cause to the referee for more specific findings does not ask that tbe referee report as to tbe alleged promise of defendant — tbe only thing material to tbe controversy alleged in tbe amended petition. It is not until after tbe report of tbe referee is confirmed, and judgment rendered thereon, that it is suggested that any report is desired as to the alleged new contract of the defendant.

Under the circumstances the court did not err in confirming the report, nor in refusing a new trial.

The judgment of the courc is

Affirmed.

Seevers, J., being interested, took no part in the consideration of this case.  