94 P. 464 | Wyo. | 1908
Lead Opinion
This action was commenced in the district court of Carbon County by AVilliam Jungquist, the defendant in error, as plaintiff, against the City of Rawlins, plaintiff in error, as defendant, to recover for alleged damages to his property by reason of lowering the grade of streets adjacent thereto in accordance with an ordinance of the city.
From the record it appears that for many years Jungquist has been and is the owner of a lot of 24 feet frontage on Fifth street and extending back along Cedar street with the same width in the rear and to a depth of 132 feet. The lot was occupied by a large frame store building and basement and a small frame store building, the first being used in the hardware business which was conducted in and upon said premises by the plaintiff until some time in the month of January, 1902. That in 1901 and 1902 the grades and surfaces of the adjoining streets were altered and changed by an ordinance and made to conform thereto. Thereafter and on September 24, 1902, Jungquist presented to and filed a bill with the board of trustees of the City of Rawlins, in which he claimed damages in the sum of $1,629.65 to his
The defendant pleaded as one of its defenses thát the payment to and acceptance by Jungquist of the sum of $277.65 allowed on his bill which he presented and wherein he claimed $1,629.65 as damages operated as a full compensation and a complete settlement of all matters, differences and damage by reason of any action of the City of Rawlins in grading the streets adjacent to his property.
The case was tried to the court without the intervention of a jury and the court found and rendered its judgment in favor of Jungquist and against the city in the sum of $2,222.35 and interest thereon at eight per cent per annum from August 26, 1903, and at the same time found and separately stated its findings of fact and conclusions of law. The city brings the case here on error.
1. It is contended, first, that the decision of the court is against the weight of the evidence and the law; second, that the court erred in its seventh finding of fact; third, that the court erred in its third conclusion of law.
It was in issue under the pleadings and the evidence whether prior to and at the time the damage complained of the plaintiff had made his sidewalk and premises to conform to a grade or any grade which had theretofore been established, and his right to recover at all was contested on that ground. Upon this question the court found adversely to the contention of the defendant, but as the evidence was conflicting and also in view of the conclusions reached upon
The seventh finding of fact is as follows: “That during the month of September, A. D. 1902, plaintiff presented an itemized account to the board of trustees of the City of Rawlins, setting forth the items of his -claim against the said city for damages to his said premises, caused by the grading of the streets adjacent thereto, and that on or about the 31st day of December, A. D. 1902, the said board of trustees in meeting assembled did allow -on said bill and account presented as aforesaid to said board of trustees, the following items, to-wit:
To tearing up and damaging- said stone pavement, making it unfit for further use.$189.65
To 26 days excavating to sidewalk grade. • 52.00
To relaying board walk in place of stone pavement. 36.00
Total amount allowed.$277.65
“And a warrant was issued payable to the plaintiff for said amount. That the balance of the items of the bill were rejected or not acted on by the said board of trustees.”
The third conclusion of law is as follows: “That the plaintiff is entitled to a judgment in his favor and against the defendant for the sum of twenty-two hundred and twenty-two and thirty-five hundredths ($2,222.35) dollars, the same being the amount of plaintiff’s damages in the sum of twenty-five hundred ($2,500.00) dollars, less two hundred seventy-seven and sixty-five hundredths ($277.65) dollars paid by defendant to plaintiff; and the plaintiff is entitled to interest thereon from the 26th day of August, A. D. 1903, at the rate of eight per cent per annum.”
The item for $900 was rejected by the court by its fourth conclusion of law.
The question here presented is whether the bill for damages presented in September, 1902, the action of the board and the acceptance of the amount allowed thereon by Jung-
“City of Rawlins, County of Carbon, to William Jung-quist, Dr. Bill of damages to corner Fifth and Cedar streets, account grading.
1902. To tearing up and damaging of stone pavement, making it unfit for further use... .$ 189.65
To 26 days excavating to sidewalk grade.. 52.00
To relaying board walk in place of stone pavement torn up. 36.00
To 15 perches-of rock wall torn down.,.. 45.00
To lower house to grade...'. 877.00
To damages to upper story to date. 400.00
To damage to basement for month of July. 30.00
•$1,629.65”
Regardless of the items, it will be observed that the damage for which compensation is claimed is shown by the bill to have resulted from the same cause. It is designated as a bill for damages to the premises and it was so regarded by the court in its findings. There is no question of the identity of the property or the cause of the damage, and while the suit was not predicated upon any action of the board of trustees on this bill, yet plaintiff’s cause of action is inclusive of and for damages referred to in this bill. The court in its finding treated them as identical and credited the amount allowed on this bill upon the amount of damage which it found that the plaintiff had sustained. Upon the record the plaintiff is, therefore, in the attitude of having part of his demand allowed, accepting the amount so al-. lowed and suing for the balance.
Having presented his bill and accepted the amount allowed thereon and there being no express agreement that it should be in satisfaction in whole or in part of the cause of action, the presumption is that it was intended as full recom-
Q. This bill (referring to bill acted on by the trustees on December 31, 1902) was for the same damage, the same claim you are now suing on ?
A. No, sir, not at all. The grade had got nothing to do with it.
Q. It hasn’t anything to do with the damage you sustained ?
A. Yes, sir.
Q. Was this bill for $1,629.65 for damages you sustained by grading or not?
A. It was tearing up the sidewalk.
*419 Q. Damage you sustained by tearing up the sidewalk?
A. A part of the damage, yes, sir.
Q. You expected when you got all that to put in some more for damage and keep it coming?
A. That’s all right. If they had settled the bill there wouldn’t have been anything- more said about it.
Q. If the city had settled the bill it would have paid you for all damages?
A. To that time, yes,'sir.
The trustees in considering the claim must necessarily have considered the question as to whether the plaintiff was entitled to any damages, and the amount of such damage, whether itemized or not, was for them to consider. We are unable to perceive any difference, so far as plaintiff’s rights are concerned, between presenting his bill in this form, and from presenting a claim for a lump sum and appearing before the trustees and showing what the elements of damage were and the component parts going to make up such lump sum. The tearing up and relaying the sidewalk was an element of damage occasioned by the lowering of the street to the grade or else plaintiff upon the case was entitled to no compensation therefor. That was an element to be taken into consideration in determining the amount of his damage. (Holley v. Torrington, 63 Conn., 426; Cook v. Ansonia, 66 Conn., 413; Pickles v. Ansonia, 76 Conn., 276; 27 A. & E. Ency. of Law, 141, 142.)
It may be that the damage to his property was greater than he supposed it to be at the time he presented this bill, but neither in the pleadings nor in the evidence does he seek on this ground to avoid the effect of his acceptance of the amount allowed thereon. As already stated, having accepted the part allowed on his bill, the presumption is that he accepted it in full settlement of his claim. The burden was upon him to show a different understanding. (Bowman v. Ogden City, supra.) The only thing upon which he relies is the fact of there being pencil marks on the first three items of the bill and that those items aggregated the
In the case before us the claim is for unliquidated damages. The amount of compensation to which the plaintiff was entitled is neither fixed by statute nor by a.precedent contract. As already stated, his claim for damages resulted from a single cause. In 1 Ency. Pl. & Pr., at page 148, it is said: “It is a well established rule of law that a single cause of action cannot be split in order that separate suits majr be brought for the various parts of what really constitutes but one demand.” It is further said in the same volume, at page 150, that: “There is no precise rule for determining what constitutes an entire cause of action * * *. It depends upon the facts of each particular case, and is often a difficult question. Certain rules, however, may be formulated.” One of the tests which is frequently given is whether the evidence necessary to prove one cause of action would establish the other. (Hill v. Joy, 149 Pa. St., 243; Bigelow on Estoppel, 44; Lyon v. Miller, 24 Pa., 392;
The rule with reference to damages in the exercise of the right of eminent domain is, we think, peculiarly applicable in this connection. In the exercise of that right there must be (1) a lawful seizure of the property, and (2) just compensation to the party whose property is taken. When a part)»- sues for damages in such a case his right to recover is based upon the wrongful act of denjdng just compensation for the injury and the action is treated and spoken of in the decisions as for a wrongful act. It is said in Sutherland on Damages (3d Ed.), Sec. 1065, as follows: “The word compensation imports that a wrong or an injury has been inflicted and must-be redressed in money.” We are not dealing with the subject of a continuing trespass. The act complained of was a completed act. All of the damages resulting from that act were recoverable in a single action. At Sec. no, id., it is said: “The principle is settled beyond dispute that a judgment concludes the rights of the parties in respect to the cause of action stated in the pleadings, on which it is rendered, whether the suit embraces the whole or only a part of the demand constituting the cause of action. It results from the principle,
In Elliott, Roads and Streets, at page 345, it is said: “The change of grades is a permanent matter and all re-
The settlement of the plaintiff with the defendant without fraud or deception partook of the nature of an adjudication of the differences between them growing out of regrading the streets adjacent to his property. The same proof would be necessary to show the cause of the damage to enable him to recover a jpart or all of the damage either in one or in separate suits, and the damages sustained were but a unit, although composed of integral parts. The plaintiff submitted his claim to the trustees and invoked their action thereon and accepted the amount which they allowed. He was not bound by their action. He could either accept the amount allowed him or reject it and bring suit upon his claim and litigate it as an entirety. He could not accept and retain the amount allowed and maintain an action for the balance in the absence of an express understanding that it was only a partial allowance.
In Hunt v. Franklin County Commissioners, 100 Me., 445 (62 Atl., 213), the plaintiff was present when the board of county commissioners passed upon his itemized bill and allowed a less amount than he claimed; he accepted this amount and by certiorari brought the case before the court for review. The court say: “The petitioner urges that the allowance of a lump sum for his itemized bill less than the full amount was illegal. That the commissioners should have allowed or disallowed each item and should be compelled to do so now, in order that he might bring the disallowed item before the court. On the other hand, the respondents claim that certiorari is not the proper remedy for the petitioner.
“We have no occasion to consider either of the above contentions, since a complete answer to the petition is made
We are of the opinion that the decision of the court is against the evidence, under the law applicable to it, and that the court erred in its seventh finding of fact and its third conclusion of law.
The judgment will, therefore, be reversed and the cause remanded to the district court with directions to enter judgment for the defendant, the plaintiff in error here.
Reversed.
Rehearing
ON PETITION EOR REI-IEARING.
The defendant in error has. filed a petition for a rehearing and insists thereby not only that the points involved in the case were incorrectly decided, but that upon the conclusion reached the court should have remanded the cause for a hew trial instead of directing judgment.
1. In the brief in support of the petition we find’ again discussed the effect of plaintiff’s acceptance of the amount
Plaintiff presented to the city a claim for unliquidated damages. So far as this case is concerned he had nothing hut an unliquidated demand. Moreover, it seems to have been disputed. At least a part only was allowed, and in this suit upon the claim it was contested upon the ground, among others, that there was no liability on the part of the city for any of the damages alleged. The rule, therefore, to be applied to the allowance and acceptance of a part of the claim is the well, settled one that payment and acceptance of a less sum than claimed, in satisfaction of an unliquidated or disputed claim, operates as an accord and satisfaction. (1 Cyc., 329-331; 1 Am. & Eng. Ency. E., 419-420.) That the claim presented was for the entire demand seems to be clear, and was practically admitted by the plaintiff in his testimony. The bill contained several items, it is true, but they were each and all claimed as a result of the same cause or injury, viz.: as damages on account of grading, as stated in the bill, or, as set out in the suit, on account of a change in the grade of the streets adjoining 'plaintiff’s property. That the claim was unliquidated is not denied, nor could it be. That part had been allowed and accepted is conceded. The only controverted question of fact, therefore, in reference to this matter was and is whether the payment and acceptance was in full satisfaction of the damages claimed. The solution of that question depends upon the evidence and the inferences to be necessarily drawn therefrom.
The evidence upon the question, though meager, is not conflicting. It consists principally of the bill as presented, the record of the action upon it by the city trustees or council, and the warrant drawn and delivered to and accepted by the plaintiff. In addition, the plaintiff testified in answer to a question upon cross-examination that the bill upon
In support of the theory that the allowance had reference to particular items only, reliance is placed on.the fact that opposite each of the first three items appeared a pencil check mark, and that the aggregate of those items equals the amount allowed. But the check marks are totally unexplained. We cannot assume that they were made by any one connected with the city government, or that they were placed upon the bill before or at the'time of its consideration by the trustees. They, therefore, prove nothing. The fact that the total amount of the three items equals the amount allowed might he of some importance depending upon the circumstances. It ,is apparent that the board might have regarded the damages claimed by those items as representing all to which the plaintiff was entitled in any event, or that to settle a disputed matter it was willing to allow the amount of those items and no other amount. But in the present state of the evidence the intention must be gathered from that which was done. And it is the duty of the court to ascertain the necessary inferences from the evidence.
It has been said that the hill embraced plaintiff’s entire demand. We think it equally clear upon the evidence that the city board treated and considered it as an entirety. In each entry in the record of the hoard the bill is referred to as one for a specific amount of damages account of grading, the amount mentioned being the total amount of the bill. It is not otherwise referred to, and such description is fob
If in fact the city board allowed the amount accepted as full compensation, and that, we think, is the effect of the evidence, considering the nature of the claim as well as the record entries showing the board’s action, the plaintiff, in the absence of anything to the contrary, must be presumed to have known it when he accepted the payment. It does not appear that he made any inquiry about it, but we have the bare fact that he accepted the warrant and received the money it called for. And the warrant recited on its face that it' was for damages by grading. In considering his action in the premises; as well as that of the board, the discussion in the former opinion is pertinent with reference to the character of the claim and cause of action. It is not necessary to repeat what is there said respecting it. If the plaintiff was entitled to any portion of thé amount claimed in his bill it was because of the injury to his property through a change in the grade of the streets. He had a single cause of action, and, though various things might be considered in estimating the damage under the. usual rule of the difference in the value of the property before and after the change of the grade, they are in that sense merely elements of a single and inseparable damage. The plaintiff seems to have so understood it, since his bill was headed, “Bill of damages acc. grading.” The case of Fulton v. Monona County, 47 Ia., 622, is not opposed to the view we have taken. In that case, involving a bill for services and expenses of a superintendent of schools, the court • held ■ that upon the evidence the conclusion , was authorized that the claimant had grounds to believe that the
There seems to be some misconception in the mind of counsel regarding the references in the former opinion to the law concerning the splitting of a single cause of action for the purpose of suit, and it is protested that plaintiff has not divided his cause of action, nor sued for part in separate suits. It was not supposed that he had. The discussion upon that subject in the opinion was relevant to the determination of the effect of the allowance and acceptance of a part of his claim. It seemed to be proper to explain that the claim upon which the allowance was made was not composed of disconnected items founded upon separate contracts or injuries, but that all the items went to make up the aggregate amount of the damage claimed to have resulted from a single injury, and that the transaction as to the allowance and acceptance was to be considered from that viewpoint.
Upon the evidence, therefore, in our opinion, the finding of fact was not justified that the allowance by the board had reference merely to the first three items of the bill. The finding was in the alternative as to what was done with the remainder of the bill, viz.: that “the balance of the items.were rejected or not acted on by the said board of trustees.”
The view w? have taken of the question does not impose upon' the plaintiff below the burden of proof in the first instance to negative a satisfaction of the claim through his acceptance of the warrant, but only to overcome the effect of the defendant’s evidence, which upon principle and the authorities was sufficient prima facie to show a settlement and satisfaction of the claim sued on.
2. It is further insisted that accord and satisfaction is insufficiently pleaded in the answer to authorize the admis
In the first place it is doubtful, to say the least, whether the question was raised by any objection to' the evidence'. The only objections as to this matter which we find in the record are these: When the city clerk was testifying for the defense, having without objection read from the records of the board the action taken upon the bill of plaintiff on September 24, 1902, he was asked to turn to another page. An objection was then interposed “to this procedure on the ground that it calls for a legal conclusion and is irrelevant.” The objection was overruled and an exception taken. Without further objection the witness was allowed to read the subsequent record of December 31, 1902, showing the consideration of the bill and the allowance thereon. When the warrant was offered, the plaintiff’s counsel objected without stating any ground. It was overruled and an exception taken. The warrant was thereupon admitted in evidence, and immediately thereafter it appears that the plaintiff offered to introduce his claim that had been presented to the city in the amount of $1,629.65, on which was paid $277.65, the clerk not then having the same in his possession, and leave was granted the plaintiff, to introduce it at any time before the conclusion of the case. The clerk was afterwards recalled for further cross-examination, and, having the bill in his possession, he was interrogated respecting it. Upon that examination was brought out the fact of the presence of the check marks upon the bill. Thus it appears that the insufficiency of the answer was not directly suggested by any objection to the evidence, unless it may be supposed that it was argued in support of the objections that were interposed, but the record is silent upon the matter except as above stated.
The answer contains two separate defenses. In each there is an allegation of the allowance in question as full
Briefly stated, the method or form generally laid down in the -books and approved by the courts for pleading accord and satisfaction is to allege that the thing delivered or money paid was delivered or paid to the plaintiff and received by him in full satisfaction and discharge of his said cause of action, or the claim’ set forth in the petition. (1 Kinkead’s Code Pl., p. 140; 2 Bates Pl. Pr. Par. & Forms, 860; Baldwin v. Bank, 1 O. St., 141; Leavitt v. Morrow, 6 O. St., 71, 72; 1 Ency. Pl. & Pr., 76, notes 3-5.)
The answer alleges as a fact, and in that respect it seems to be unassailable, that the bill was considered by the board and a stated amount allowed thereon and a warrant for the amount delivered to the plaintiff as full compensa
However, the parties went to* trial upon the answer without objection to its sufficiency; it alleging a compromise and settlement through the payment and acceptance 'of a stated amount and that the payment was made as full compensation. Where no objection to a pleading on the ground of its insufficiency has been made before triál, the most liberal construction will then be adopted to sustain it if possible, and the objection will not then be sustained unless there is an entire omission of a material fact or a total failure to state a cause of action or defense. (1 Bates Pl. Pr. Par. & Forms, 458, 459; Holz v. Hanson, 115 Wis., 236; Pomeroy’s Rem., Secs. 549-551; Ry. Co. v. Stone (Kan.), 37 Pac., 1012; Johnson v. Anderson (Kan.), 57 Pac., 513.)
In the case last cited it was said:
“The sufficiency of the petition was raised by an objection to the introduction of any evidence under if. This*434 method of attack is not favored, and the allegations of the petition will be construed liberally, for the purpose of sustaining it.”
And in Railway Co. v. Stone, supra, no demurrer or motion having been interposed, but the objection to the petition being first raised by an objection to evidence, it was said: “If the facts are all stated, even indefinitely or in form of conclusions, a petition will be regarded as sufficient.” Pomeroy says in Section 549 of the work above cited: “Thus, if instead of alleging issuable facts the pleader, should state the- evidence of such facts, or even a portion only thereof, unless the omission was so extensive that no cause of action at all was indicated, or, if he should aver conclusions of law, in place of fact, the resulting insufficiency and imperfection would pertain to the form rather than to the substance, and the mode of, correction would be by a motion, and not by a demurrer.” And again, in Section 551: “If the pleading was not reformed, and if the defect was not so serious as to render it demurrable, it would be treated on the trial as sufficient; and the statement of probative matter or of legal conclusions would take the place of the issuable or material facts which ought to have been averred, and would thus become material.”
It having been averred that the city allowed the amount stated as full and complete satisfaction, the answer states in a single sentence that “in accordance with allowance” a warrant was issued, and the plaintiff accepted the same; and the sentence concludes with the averment above quoted that the plaintiff thereby compromised and settled the claim. Giving to the allegation the liberal construction required, there is not a total failure to allege the material fact that the warrant and money were received in full satisfaction and discharge of the claim. That the allowance was in full satisfaction is alleged, and it is also alleged that the warrant was issued and accepted in accordance with the allowance. Though the remainder of the allegation may be a conclusion of law, it supports the inference that the acceptance as well
3. In accordance with the direction contained in the former opinion an order was entered remanding the cause with directions to the district court to render judgment for the defendant below, the plaintiff in error here. It is now urged that such order was improper in view of the grounds upon which the reversal was based, and that the cause should be remanded for new trial i.f the order of reversal is adhered to. At the court’s request counsel for plaintiff in error has submitted a brief upon that question, opposing any modification of the order. We have carefully considered the matter and have concluded that the objection to that part of the order which directs the entering of judgment without a new trial is well taken.
The judgment was reversed for the insufficiency of the evidence to sustain the finding of fact that the city authorities had allowed the first three items of the bill without reference to the remaining items. The effect of the finding as we think it must be construed is that the three items aforesaid were separately considered by the trustees, and upon such consideration allowed. The error of the court, therefore, was primarily in the finding of fact, and in denying the motion of defendant below for a new trial. Even in such a case we suppose an appellate court might be justified in directing the proper judgment to be entered, where it appears that all the facts are shown by the evidence and are not disputed, but the course taken -should be such as will appear to best promote the ends of justice. (3 Cyc., 454, 455.) Under our practice and in this case the defendant below raised the question of the sufficiency of the evidence to support the finding of fact by a motion for new trial, and that motion ought in our opinion to have been granted, so that error was committed in overruling it. It is not apparent to us that there may not be other competent evidence tending to throw light upon the point in issue,
In Gay v. Davey, 47 O. St., 396, the court say: “Material facts necessary to sustain the judgment were in issue between the' parties. The main ground upon which the defendants predicated their motion to set aside the judgment and for a new trial was that the finding of the court was against the weight of the evidence. When the reviewing court reversed the judgment of the court below for error in overruling such motion, the only judgment which should have been rendered after reversal was to grant a new trial, as moved in the trial court. * * * For aught appearing to the contrary, upon remanding the cause for further proceedings, any unavoidable defect in the evidence on the hearing might, in furtherance of justice, have been supplied in a second trial.”
It is suggested in the brief of counsel for plaintiff in error that it would not be competent to explain the record of the city board or alter its effect by parol testimony. We think it unnecessary as well as improper to decide or consider that question. It will be time enough to do so when evidence of that character for such purpose is offered or admitted. But if the contention be correct we are not in a position to say that there may not exist other entries in the record of the board showing its action in the premises, not appearing in the present record, or at least some competent facts pertinent to the issue.
However, the insufficiency of the evidence to sustain the findingr is not the only point to-be here considered upon this inquiry. The trial court failed to make a definite finding upon a material fact, viz.: the action of the board of trustees with reference to the remainder of plaintiff’s bill. It is true that upon the evidence presented we are of the opinion that the only proper finding would have been that the part of the bill not allowed was rejected. Nevertheless, the trial court made no finding as to that matter, and hence the findings did
“On setting aside a judgment in an action at law, the appellate court will not undertake to render or order final judgment where the facts in issue are controverted or not definitely settled, but will order a new trial. And so, where the facts have been found so imperfectly as not to authorize a judgment thereon, the appellate court will remand the cause for further proceedings.”
In order to render or order a judgment in the case at bar, it would be necessary for this court not only to make a finding as to a fact apparently not considered by the trial court, but also to substitute a finding for the one erroneously made by the trial court. The order previously entered _ directing judgment was an inadvertence and in our opinion improper under the circumstances, and it should be modified so- as to remand the cause for a new trial. It will be so modified, and the petition for rehearing denied.
