Franklin

From an order granting a nonsuit in favor of the owner in an action to foreclose a mechanic’s lien the plaintiff has appealed.

As stated in the plaintiff’s opening brief and conceded in defendant’s brief, the appeal involves only one question, which is: “. . . whether or not there is a material variance between the pleading of the contract and the proof thereof and also whether or not there is a material variance between the contract set up in the notice of lien and the contract attempted to be proven at the trial”. However, the defendant adverts to the fact that there was no proof that the price was agreed on nor was there any proof of the reasonable value. The latter proposition is true, but its truth arises by reason of the opening statements made by the respective attorneys. In both statements it was conceded that the price was agreed upon. In its complaint the plaintiff alleged: “that the defendants agreed to pay for said plumbing fixtures the sum of $393.66 to be paid at once to plaintiff herein at the market value of the same and all of the same and that the reasonable charge for said plumbing fixtures was the sum of $393.66 above mentioned. . . . That there is a balance…