Kent

Plaintiffs Robert and Theresa Kent brought this action against defendant William Bartlett to recover damages allegedly occa sioned by his negligence in making a survey of certain real property.

Defendant, by way of answer, denied the charging allegations of the complaint and asserted that plaintiffs had failed to state a cause of action because it was not alleged, that there was any privity of contract between plaintiffs and defendant. Defendant also raised the affirmative defenses of contributory negligence and assumption of the risk.

When the case came on for trial, defendant moved to exclude all evidence pertaining to the terms of the contract under which defendant had made the survey. Defendant took the position that plaintiffs had pleaded a cause of action based solely upon negligence and that since there was no privity of contract between plaintiffs and defendant, plaintiffs were not entitled to prove their case by showing that defendant had performed the survey in such a manner as to breach a contract with the party who had hired him to make the survey. Defendant argued that evidence of the terms of said contract was totally irrelevant and that plaintiffs were…