¶1delivered the opinion of the Court:
¶2This was a petition to enforce a mechanic’s lien. The court below, on trial without a jury, found for the defendants. The petitioner appealed.
¶3The petition alleges that, on March 19,1873, the petitioner entered into a contract with Hannah S. Newton to paint the dwelling house of said Hannah, known as No. 159 Wahpanseh avenue, in the city of Chicago, for $310; that, afterward, there were three deeds of trust on the property, made by Hannah S. Newton to secure the payment of three several promissory notes. The answers admit the making of the trust deeds.
¶4The petitioner testified that he never made any contract with Hannah S. Newton, but that he made a contract with George H. Newton, her husband, to paint two houses in Wahpanseh avenue; that they were two houses under one roof, and he thought the numbers of them were 167 and 165; that they had two numbers; that the east house was occupied by George H. Newton before the petitioner got through painting.
¶5There was a variance here, between the petition and proof, as to the description of the houses.
¶6The evidence in the case was very slight from which there could be any inference of agency on the part of George H. Newton, from his wife, in making the contract.
¶7The work seems to have been done for George H. Newton, and upon his personal credit.
¶8The petitioner testifies that he took the note of George H. Newton for the work, and sold it and indorsed it over to one Armstrong for $300, and that was the last he had ever heard of it.
¶9The note was not produced and offered to be surrendered at the trial, nor any excuse shown for its non-production. This of itself would warrant the judgment for the defendants.
¶10Motions were made by the counsel for the petitioner to amend the petition as to the description of the house; to continue the cause, for reason of surprise by the testimony of Clement as to the note, and after the judgment, to set it aside, the latter motion being based upon the affidavit of Armstrong that he never received a note, as testified to by petitioner, Clement, on the trial, and that he, Armstrong, held the beneficial interest in the claim in suit.
¶11The overruling of these motions is assigned for error.
¶12We do not think that, under the circumstances, the decision of the court in respect to the motions constitutes any sufficient ground of error.
¶13There was, in the case, the testimony of the attorney of Armstrong, who attended to the management of the business in that respect, that Armstrong did not receive any note from Clement. The testimony of Armstrong would have been but cumulative upon the point, and no way conclusive in its character.
¶14The judgment will be affirmed.
¶15Judgment affirmed.