#### The Younger & Farmer Co. *v.*Halliday.

*Jury trial*— Revocation *of waiver by amending pleadings*— Es*toppel*— Sufficiency *of pleading after trial and judgment.*

1. An amendment to a pleading, after a jury has been waived, which does not change the issues of fact but affects the remedy only, is not effective to cancel the waiver of a trial by jury.

2. Where a case is tried upon a given theory, and evidence is introduced pro and con upon such theory without objection, it is too late after trial and judgment to raise the question for the first time whether the pleadings warrant such a i theory.

(No. 17593

Decided April 24, 1923.)

Error to the Court of Appeals of Cuyahoga county.

The parties occupy the same position as they did in the trial court and will he referred to as plaintiff and defendant.

The fourth amended petition of the plaintiff recites that on the 27th day of May, 1919, it entered into an agreement with the defendant whereby it agreed to provide all the materials and perform all the work of excavating, concrete, brick, and carpentry work for the erection of a factory building for defendant, for which the defendant agreed to pay plaintiff the sum of $16,647, subject to additions and deductions; that the defendant agreed to make monthly payments to the extent of 90 per cent, of the value of materials in place, as determined by the engineers’ estimates, final payment to be made 30 days after completion; that in pursuance of the con*432tract it commenced the construction of the factory on the 25th day of May, 1919, and continued in performance of it until the 14th day of July, 1919 ; that on or about the 8th day of July, 1919, the engineers made a written estimate of 90 per cent, of the value of materials in place to July 1, 1919, in the sum of $4,364.56, payment of which was demanded and refused ; that on the 14th day of July, 1919, because of the refusal of the defendant to make payment of the estimate plaintiff declared a breach of the written contract, notified defendant thereof, and discontinued further work under the agreement; that up to the 14th day of July plaintiff performed the contract according to its terms and conditions, except as delayed by the fault of the defendant; and that on the 23d day of July, 1919, within 60 days from the furnishing of the labor and materials, plaintiff duly filed with the recorder of Cuyahoga county an affidavit for the purpose of obtaining a mechanic’s lien for the amount due, a copy of which is set out in the petition, which affidavit contains the following:

“The Younger *&*Farmer Company furnished labor and material in and for excavating, concrete, brick and carpentry work for erecting and constructing a certain factory building for Janet M. Halliday, situated on the land hereinafter described, in pursuance of a certain contract with the said Janet M. Halliday, owner of said land.

“The last of such labor was performed and the last of such material was furnished on the 14th day of July, 1919, and there is justly and truly due said, the Younger & Farmer Company from the said Janet M. Halliday, over and above all legal set-offs, the sum of ten thousand two hundred and eighty-two *433dollars and thirty-seven cents ($10,282.37), for which amount the said the Younger *&*Farmer Company claims a lien on said building and land of which said Janet M. Halliday is or was the owner. ** * *”*

A description of the premises then follows.

The petition also sets forth a copy of the notice served upon the defendant, which notice contained the following:

“You are hereby notified that on the 23d day of July, 1919, the undersigned company filed with the recorder of Cuyahoga county, Ohio, its affidavit containing a statement of its claim against you for $10,282.37 — for labor and materials furnished under its contract with you dated May 27,1919, to-wit, excavating, concrete, brick and carpentry work in the erection and construction of your factory building, standing upon the following described parcels of land.”

The petition also contains the averment that “the plaintiff claims a lien upon the premises herein described for the said sum of $10,282.37,” and refers to the copy of the affidavit for a description of the property.

The petition contains' the further averment: “Plaintiff says that defendant is indebted to it on account of the premises in the said sum of $10,282.37, with interest from July 14, 1919.”

The prayer of the petition is:

“Wherefore, plaintiff asks that the said lien may be foreclosed and that the liens on said property may be determined according to their priority, and in default of payment thereof, said liens may be marshaled and said premises may be sold and the proceeds thereof applied to pay said liens according to *434their priority, and such other relief as is just and proper.”

The petition also contains a second cause of action for damages in the sum of $709.58, being the amount of its estimated profits upon the uncompleted part of the contract, the prayer of which recites:

“Wherefore, plaintiff asks judgment against said Janet M. Halliday in the sum of $709.58, together with interest thereon from July 14, 1919, at the rate of 6 per cent, per annum.”

To this petition the defendant filed an answer in which she admitted the corporate capacity of the plaintiff, and admitted that she entered into a written contract with plaintiff, “whereby plaintiff agreed to provide all the materials and perform all the work of excavating, concrete, brick and carpentry work for the erection of a factory building for this answering defendant, and that this defendant agreed to pay plaintiff therefor the sum of $16,647, also plus an additional $164, for the use of three-quarter inch limestone in place of slag in all walls and footings;” but she denied that the provisions of such contract were correctly or fully set forth in plaintiff’s petition. Defendant admitted that the plaintiff commenced work under such contract, but denied that it continued in the performance of the contract in accordance with its terms until the 14th day of July, 1919. Defendant averred that plaintiff failed and refused to perform its contract in these particulars: That it failed to complete the contract upon the 1st day of July, 1919, being the date within which the contract provided that the work should be completed; that it failed to furnish sufficient labor, material, and facilities for hastening the work *435so as to enable it to complete the contract; that it constructed the floor elevation of the building one foot lower than the level provided for in the contract; that it constructed all the concrete foundations for the pilasters of the building four inches less in width than the dimensions provided for in the contract, and many of the concrete footings were defective ; that plaintiff constructed the concrete foundation for the steel columns of the building at different levels, contrary to the specifications provided for in the contract; that it used soft brick in the construction of the building instead of hard-burned rough shale brick; that such part of the walls of the building as were constructed did not allow for the dimensions of window openings, as provided by the specifications; that the contract provided that the defendant had the right to demand a bond of plaintiff and that the bond furnished was not in accordance with the contract; that the contract provided that no poor or inferior material or workmanship should be accepted under any condition whatsoever, and that the material and workmanship furnished by the plaintiff were poor and inferior; that the contract provided that any delay of the plaintiff in complying with the defendant’s request to furnish sufficient labor, material, and facilities to finish the building at the time specified, should result in a corresponding delay in the next payment due the plaintiff, and also that defendant reserved the right to demand before paying any estimate the receipted bills for the materials incorporated in the work, and that no such receipted bills were furnished by plaintiff, and that whatever written estimate, if any was obtained by the plaintiff from the engineer, was ob*436tained by false and fraudulent representations, and that plaintiff was at no time entitled to an estimate for the sum of $4,364.56; that such estimate after being given was repudiated by the engineers; that the affidavit filed with the recorder of Cuyahoga county, July 23, 1919, and the notice served upon the defendant for the purpose of effectuating a lien, were insufficient to entitle plaintiff to a mechanic’s lien; that the allegations of said affidavit were untrue; that the copy of said affidavit was not served upon her according to Section 8315, of the General Code; and that statements and certificates from materialmen and laborers were not furnished by the plaintiff as required under Section 8312 of the General Code.

The defendant in her answer further denied each and every allegation in plaintiff’s petition contained, except such as were thereinbefore specifically admitted to be true.

By way of cross-petition the defendant made averments as to the provisions of the contract, and as to its breach, and prayed judgment for damages in the sum of $30,000.

To which answer the plaintiff filed a reply denying the averments thereof, together with an answer to the cross-petition, putting in issue the averments of the cross-petition.

The cause came on for trial January 21, 1921. The journal of the trial court in this cause on that day reads: “The parties by their attorneys come and a jury is waived.”

On June 2, 1921, the trial court made the following entry:

*437‘ ‘ This cause came on to be heard upon the fourth amended petition of the plaintiff, the answer and cross-petition of the defendant, Janet M. Halliday, the reply and answer of the plaintiff. * **** The plaintiff upon application is given leave to amend its fourth amended petition instanter by interlineation as follows, to-wit: By inserting the words on the second page, eighteenth line after the word ‘ engineers ’ the following: ‘Selected by the defendant, Janet M. Halliday,’ also by adding the following words on the second page at the end of the twenty-seventh line, to-wit: ‘Up to said date the plaintiff performed the contract according to its terms and conditions except as delayed by the fault of the defendant or by the direction of the defendant, Janet M. Halliday,’ also- the plaintiff upon application is given leave to amend by interlineation its prayer on page 6 by adding the following after the word ‘priority’ on the twenty-fourth line of said page, to-wit: ‘And for judgment for amount of plaintiff’s claim,’ to which the defendant, Janet M. Halliday, excepts. Upon due consideration thereof the court finds plaintiff’s lien invalid. The court further finds in favor of the plaintiff and against the defendant Janet M. Halliday, and renders judgment for said plaintiff against said defendant in the sum of $10,-110.35 and for its costs in this case. * * * To all of which defendant, Janet M. Halliday excepts.”

Error was prosecuted to the Court of Appeals, where the judgment was reversed “because the allegations in the petition did not warrant a recovery on *gucmtwm*meruit; because the trial court erred in granting leave to amend the petition for the purpose of changing the nature of the cause *438of action after trial was had, and because the court erred in treating the action as one on *quantum meruit*and rendering judgment on that theory without giving the defendant an opportunity to have a trial by *jury;*no other error appearing, in the record.”

The cause is here upon error from the Court of Appeals.

*Mr. G. N. Fiscus*and *Messrs. Stearns, Chamberlain & Roy on,*for plaintiff in error.

*Messrs. Smith, Olds £ Smith; Messrs. Boyd, Gannon, Brooks £ Wickham*and *Mr. R. W. Jeremiah,*for defendant in error.

Robinson, J.

The question here for determination is whether the waiver of a trial by jury by the parties was binding upon them subsequent to the amendment of the prayer of the petition by the addition of the words, “and for judgment for amount of plaintiff’s claim.”

The contention of the defendant in error is that the correct rule is stated in 24 Cyc., 172:

“The waiver of a jury when the case is called for trial is a waiver only as to the issues then formed and does not apply to new and different issues that may thereafter be formed under amended pleadings, but merely formal amendments that do not materially change the issues will not entitle a party to demand a jury.”

As the pleadings stood prior to the amendment, there was an issue whether the notice served upon the defendant on the 25th of July, 1919, was a compliance with Section 8315, General Code, and *439whether the affidavit filed with the recorder on the 23d day of July, 1919, was effective to constitute a lien by reason of the fact that statements and certificates from materialmen and laborers were not furnished by plaintiff as required under Section 8312, General Code. The first was purely a question of law; the second was a question of fact as to whether such statements and certificates were furnished, and a question of law as to the effect of the failure to furnish them.

Were there no other issues in the case, no right to trial by jury existed to be waived. But in making the issues the defendant was not content to rest her case upon those grounds solely, but put in issue the terms of the contract, performance of the contract, the breach, the right of the plaintiff to effectuate a lien for any sum whatever by reason of the poor and inferior material and workmanship furnished by it, and the integrity and good faith of the plaintiff in procuring the estimate of $4,364.56; and, further, defendant cross-petitioned for damages growing out of the contract.

Had there been no waiver of jury, and had a jury been impaneled, under the pleadings before amendment the only function of the jury would have been to determine the issues of fact, which would have been whether the plaintiff up to the time of the alleged breach substantially complied with the contract ; if not, whether his failure to comply with the contract was due to the acts of the defendant; whether the defendant breached the contract; if so, the value of the materials furnished and labor performed under the contract. And it would have been required to pass upon the issues made by the cross-*440petition and answer thereto. After the amendment the function of the jury would have been exactly the same. The waiver of a jury imposed upon the court the duty of determining the issues of fact, and had the court found a lien to exist the amount of the lien found by the court would necessarily have been the same upon the pleadings and evidence before amendment to the petition as the amount found due for which judgment was rendered upon the pleadings and evidence after the amendment. The issues of fact were not changed either by reason of the amendment to the petition or by reason of the court finding that a lien had not been perfected under the statute; and, while it is true that had the issues of this case been confined to the question whether or not a lien had been legally perfected the judgment of the court would necessarily have been for the defendant instead of for plaintiff, the parties themselves having elected to try the issues of fact as well as of law, the amendments to the petition, going to the remedy only, had no effect upon the issues of fact, and, since a jury has no part in determining the remedy, the amendment in no way affected the issues which a jury could have determined; and therefore the waiver was in no way affected by the amendment.

Much is said in the brief of the defendant in error upon the subject of the pleadings. No motion was. made to make the petition more definite and certain, no demurrer was filed thereto, and no objection was made to the introduction of evidence generally. The cause was tried upon the theory that if the court determined the lien valid, it would determine from the evidence the amount thereof.

*441Evidence was heard as to the conduct of the parties, the character and extent of the work, the damage to the defendant by reason of the character of the work and the material, and the failure to complete the undertaking.

It is too late after trial and judgment to complain for the first time that the petition does not contain averments necessary to warrant the consideration of evidence introduced pro and con without objection.

The judgment of the Court of Appeals will he reversed and that of the court of common pleas affirmed.

*Judgment reversed-*

Wanamaker, Jones, Matthias and Allen, JJ., concur.