
    William R. Hazen, et al., v. William M. Miley.
    Building Contract; Competent Evidence. Where a contract is entered into for the erection of a building, the contractor agreeing to furnish all the labor and material, for which he is to receive a certain price, and when the building has been partially completed the contractor abandons it and enters into an agreement with the owner for such owner to complete the building according to the contract and at the expense of the contractor, such owner is entitled to show in defense to the contractor’s action what the completion' of the work actually cost him, provided he paid only the current rates for labor and material. Such evidence is as satisfactory and conclusive upon the question of cost and worth as the opinions of experts.
    
      Error from Shawnee District Court.
    
    At the September Term, 1881, of the district court, plaintiff, Miley, had judgment for $45.31 and costs against defendants Hazen and two others, who bring the case here. The facts sufficiently appear in the opinion.
    
      Z. T. Hazen, for plaintiffs in error.
   The opinion of the court was delivered by

Horton, C. J.:

This was an action by defendant in error (plaintiff below) against plaintiffs in error (defendants below), to foreclose a mechanics’ lien on certain lots in the city of Topeka. William R. Hazen, one of the defendants below and the party who entered into the contract with plaintiff below for the erection of the dwelling house set forth in the petition, set up in his answer the'following contract:

“This agreement, made the 15th day of August, 1879, by and between Vm. M. Miley of the first part, and. Win. E. Hazen of the second part, witnesseth: That said party of the first part has this day abandoned all work on and control over •everything necessary to the completion of a certain house taken under contract by said party of the first part from said party of the second part, from want of means to complete the same. •Said party of the second part agrees to complete the said house for the consideration or as much of the consideration as is necessary to complete the house according to the contract previously entered into between said parties of the first part and second part; and the remainder of the original consideration, after deducting the amount necessary for the completion of the building, shall remain to be paid to said party of the first part, or to his creditors, as circumstances shall render necessary. If said party of the second part shall think best to add any additional expense to the completion of said house more than the original- contract called for, he shall be allowed to •do so, but at his own expense.
“In witness whereof, we have hereto set our hands, the day and year first above written. ' Wm. E. Hazen.
W. M. Miley.”

After Hazen had produced testimony upon the trial of the execution of such contract, he introduced evidence proving that he completed the house according to the contract first •entered into between himself and Miley; that he employed the same mechanics that Miley had employed, and paid them the same wages; that he bought the material to complete the house at its fair market value at Topeka; and then offered to prove what his expenses were in completing the building according to the terms of the original contract. To this question the plaintiff below objected, upon the ground that it was immaterial. The objection was sustained, the court remarking that it was not a question of what it cost to complete the building, but what it was worth. The defendant below then offered to show -the amount of money he actually paid out in completing the building. ■ Again, said defendant offered to show that in completing the building according to the contract he actually paid $401.53, and that this amount was necessary to complete the same. The court refused to admit the evidence. All this was erroneous, and sufficiently prejudicial to demand a new trial. The evidence should have been received; and while the cost to defendant below was not the proper testy for which the contractor was chargeable, yet this evidence tended to show what it was worth to complete the building. It was as satisfactory and conclusive, and perhaps, more so, than the mere opinions of experts. (Friedland v. McNeill, 33 Mich. 40; Smith v. Ferris, 1 Daily, 18.)

For the refusal of the court to receive competent evidence material to the party complaining, the judgment must be reversed.

All the Justices concurring.  