Opinion
May 28, 1945.
F.H. Pardee, for the defendant.
J.W. Keith, for the plaintiff.
Order dismissing report affirmed. The trial judge found for the plaintiff for $712.45 (with interest from the date of demand), the full amount claimed in a count upon an account annexed for labor and materials in building a house for the defendant. A written contract to build the house for a fixed price had been prepared, but it never was executed. The defendant contended that its terms were orally adopted by the parties. The judge found to the contrary. It is true that upon request he made a ruling — immaterial and improper upon his finding — that "the plaintiff cannot recover in quantum meruit unless he acted in good faith or substantially performed the contract." But the making of that ruling did not alter his definite and conclusive finding that "the unsigned agreement was not adopted as the oral contract between the parties." There was no prejudicial error. No error of law appears in denying the defendant's motion for "correction of the findings and rulings" or his motion for a new trial.