Smith v. Gunniss

I concur in the result in the foregoing opinion but not in all that is said therein.

This is an action to foreclose a mechanic's and materialman's lien and too much emphasis is given to the written contract originally entered into. By paragraph 4 of the complaint and by arguments of counsel it appears that the original written contract was altered by subsequent oral understandings, and the cost of the improvements heavily increased. Such alterations in the contract were made prior to performance of things to which they related and such alterations were not made in writing in accordance with section 7569, Revised Codes, which provides: "A contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise." Such being the law in the premises, the original written contract was improperly given any consideration, except that it might have been introduced in evidence to show the understanding as to the wages to be allowed the workmen it was necessary to employ in making the improvements and likewise to fix the percentage to be allowed the contractor on the cost of material and labor, if such questions had been made an issue in the case.

Rehearing denied January 11, 1944.