The Montgomery advertiser., 1906-03-19


 fyins wherein it was varied and na6di.
 ned. and alleging that a greater amount pf work was necessary to complete the
 building that that shown In the origt
 nal contract. was detnurrable as at
 tempting to set up q contract different
 from that sued on.
 I Contracts; extra work,--Where a
 builder was required to plaster build
 Ing, he was not entitfed to charge as
 extras for a scaffold necessary for that purpose.
 B. Mechanics, lien; material fur.
 nishedI issues and proof.--Where plain.
 tin sued to enforce a contractors lien Tor the construction or a building and
 did not allege that he was entitled tc
 a lien as a fnaterialfnan, he was mol 1 entitled to enforce a Hen for furnish
 ing of material for the plasterer's scaf- fold.
 3. Same; materials: removal--A con- tractor, who left ladders and other ap- l pliances on the job, which he claimed as hls own property and which he had not furnished to defendant, was not en- | titled to enforce a contractors lien
 therefor because defendfs,t had refused to permit him to remove them. l 10 Appeal; evidence; harmless er- ror.--Whefe q building contract re- l luired the contractor to furnish the 1 lumber for the building, 1t was harm less error for the court to permit the owner to show to whom the lumber was l billed.
 l ii. Mtehancs' Hens; foreclosure, evil Where. in a, suit to fereclose a | contractors lien, plafntiff in his ac- count claimed " for material fur- nished above what was to be embraced ] in the contract for which he sought | to recover It was nor error for the court to permit defendant to ask plain- | xwh & aerie na rA4 a furnish the material"
 12. Same.--In an action on a buiid- I ing contract, evidence of a convefsa- | tion had between p1amtiff and q mate. rialman, with reference to the latter l filing a Hen for materials furnished in which the contractor suggested that | the materialinan go in with him and I they would make money out of the owner, was relevant to the subject matter of the suit ana was admissible. 13. Evidence; parol testimony: con tradicting written instrumeflts.-Where a building contract quired the con- 1 tractor to furnish some material evi- | dence that the contractor verbally 1 agreed to furpish the lumber was not objectionable as contraGicting writ- ten contract.
 i4. Mechanics lien; claims for ma terial; payment by owner; evideuce- Where contractor was bound to fur- nish material for building, the owner, In q suit to enforce d contractors lien, was entitled to show that he had paid claims for materials used in the bhfld- ing in order to save the property from liens and to show the amount for which he was entitled to credit against the contractors claim.
 I5. Appeal; admission or evidence; preJudice.--Where d building contrac tor had given the owner credit for the payment of a claim. he was not injured by proof of the owners payment Of such claim in suit to enforce a con tractors lien.
 16. Mecanics' liens; contracts; per formance.---In suit to foreclose a con tractors lien, plaintiff was not entitled to recover on an allegation of full per formance of the contract. If any mate rial part thereof remained unfinished
 IT.. Appeal; instructions; refusal; harmless error--Where the jury found for plaintiff. he was not prejudiced by the courts refusal to give requested charges requiring the jury "to find for plaintiff.o
 IS. Tfial; misleading instructi5n.-In an action to foreelose Ii contractors Hen, a request to charge that it was immaterial whether there was a con tract between the partfes If plaintiff did the work and furnished material to defendant on the property described in the complaint, and uerefldant accepted tne same ana IL was DeneHctak to nfHl, and the work and maHerial was worth the amount paid and any other sum above the amount paid, to wit, $1,6S7.30, the jury should find for plaintiff the amount above said sums so paid, and find lien on the property described In the complaint in favor of plaintiff, was properly refused as misleading.
 Appeal from Bessefs1er City Court Heard before Hon Vim. Jackson. Af firmed. Opinion by Anderson, J. Ty- son, Simpson and Denson, JJ, concur.