Russell Lumber & Supply Co. v. Grooms

21 S.W.2d 832, 231 Ky. 544, 1929 Ky. LEXIS 316

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: November 15, 1929
• Status: Published

Opinion

Opinion op the Court by

Drury, Commissioner—

Affirming.

. The Russell Lumber & Supply Company, which we shall call the plaintiff sued Mrs. Alice Grooms for $1,-094.25 for building material it sold Philipps & Simpson, which they used in remodeling a house for her. The court peremptorily directed a verdict for the defendant, and from the judgment which followed plaintiff appeals.

The evidence is that Mrs. Grooms employed Philipps & Simpson to remodel a house for her. They were to do this work and furnish this material for $4,700. Plaintiff sold and charged this material to them. Plaintiff failed to file a lien for this material but sued Mrs. Grooms for the bill.

The peremptory instruction was properly given for two reasons: Plaintiff failed to prove Mrs. Grooms promised to pay for this material sold to Philipps & Simpson, and also failed to allege she made such a promise, thus failing both in its proof and its pleading. To avoid a peremptory instruction a plaintiff must have a cause of action both proven and pleaded. Utterback v. Quick, 230 Ky. 333, 19 S. W. (2d) 980.

Judgment affirmed.