
    Carlisle v. Hyland.
    APPEAL from the Marion Common Pleas.
   Erazer, J.

Suit by Hyland against Carlisle. The complaint was in five paragraphs. The first, second and third declared upon special contracts for work, labor and materials. The fifth was upon an account stated. The fourth alleged that the defendant was indebted to the plaintiff $945 70 “for work and labor done and materials furnished for Carlisle, in and for the laying up of 55,631 brick, at $17 per thousand, measured in the wall, in setting a steam boiler and building a boiler and engine house; and also in the further sum of $821 70 for work and labor done and materials furnished for Carlisle, in and for the laying up of 37,350 bricks in a chimney stack, or flue, at Carlisle’s mill in Indianapolis, at $22 per thousand, measured in the stack; and in the further sum of $25 for paving engine and boiler house; and in $17 75 for other brick work done in said engine and boiler house.”

J. T. Dye, A. G. Harris, L. Barbour and J. T. Jackson, for appellant.

N. B. Taylor, M. M. Bay and J. W. Gordon, for appellee.

The errors complained of are: 1. That the court, over the objection of the defendant, admitted evidence under the fourth paragraph tending to show the value of the work and materials done and furnished in the building of the chimney. 2. That the court refused to instruct the jury that the plaintiff, to entitle him to recover upon the fourth paragraph, must prove a special contract or contracts as therein set forth.

Did the fourth paragraph allege a special contract? "We do not so understand it. It seems to us to be a good paragraph under the code, upon an account for work, labor and materials, with a particular statement of items and values embraced in the body of the paragraph, instead of being annexed and referred to, as the form authorized by the code would justify.

The judgment is affirmed with five per cent, damages and costs.  