The plaintiff’s claim for the price of construction of a cement walk in front of property belonging to defendant is met with the defense that the work done was unworkmanlike and was made with unsuitable material.
The work was completed and approved by the City Engineer in May, 1907, and suit was entered in August, 1908.
It is shown that the work was properly done, and the proper material was used, and that no complaint was made at any time by Levis, until payment was demanded of him by suit.
He then made his first protest and presented witnesses who examined the work eight or nine months after completion and who say that they found ten or eleven stones cracked.
The plaintiff’s evidence shows that the demand was verbally made several times for payment, several bills were sent, from time to time, and that the City Engineer’s certificate of acceptance was furnished.
Defendant’s testimony is more convenient than reliable, though he does not specifically deny the material *398features of the plaintiff's evidence, he is unable to rein ember anything detrimental to his side of the case. He gravely states that he did not know the work was finished and, in fact, did not know it had begun.
May 2, 1910. Rehearing refused May 16, 1910. Writ denied by Supreme Court June 22, 1910.Complaints for the first time made nine months after completion of a work and practically coinciding in point of time with a judicial demand' for payment, do not commend themselves to our favorable consideration.
Where it is shown that at the time of completion the work was well executed with proper material and according to contract, the statement that defects developed eight or nine months afterwards will not avail in resisting payment of the price. Non constat, that they may not be due to causes supervening since the termination of the contract, such as washing away of filling or the tramping of animals.
The plaintiff is entitled to recover.
Judgment reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, the Concrete Construction and Contracting Company, and against defendant, A. A. Levis, in the sum of three hundred and eighty-eight dollars with legal interest from May 29, 1908, and with recognition of plaintiff’s lien and privilege on the property described in the petition, defendant to pay costs of both courts.