*1 CONSTRUCTION, CONSOLIDATED
INC., Wyoming Corporation, (Defendant),
Appellant Hometown SMITH d/b/a
Builders, (Plaintiff). Appellee
No. 5482. Wyoming.
Oct.
George
Urbigkit
A. Zunker of
& White-
head, P.C., Cheyenne,
appellant.
for
Carmichael,
John C. Patton of
McNiff &
Patton, Cheyenne,
appellee.
ROSE,
J.,
RAPER,
Before
C.
THOM-
AS,
BROWN,
ROONEY
JJ.
ROSE, Chief Justice.
Construction,
Inc., Wyo-
Consolidated
ming corporation, appeals from a decision
court
district
which dismissed its
against appellee
counterclaim
Hometown
Builders,
granting
while
Hometown Build-
quan-
ers a
for a claim based on
against appellant.
tum meruit filed
As a
below,
result
the adverse decision
*2
opinion
granted
for our
letter
appellant now
one basic issue
Hometown’s
raises
claim and denied Consolidated’s
the
court err
a
counter-
Did
trial
consideration:
1-12-102,
pro-
ground
claim on the
that
it failed to
applying
law
matter of
1977,1
duce the corroboration of evidence as is
of this case?
to
facts
1-12-102,
required
under §
W.S.1977.
deem
below we
For the reasons discussed
appeals.
From this decision Consolidated
will
court correct and
affirm
trial
APPLICABILITY OF §
decision.
W.S.1977
FACTS
27, 1981,
opinion
January
In his letter
of
27, 1979,
Smith,
April
On
about
Frank
judge
the trial
that
determined
appellee partnership,
en-
W.S.1977, applied to Consolidated’s counter-
Mr.
agreement with a M.
tered into an oral
Builders,
against
claim
Hometown
Federer, president
appellant Consoli-
V.
of
nership.
reaching
In
this decision
trial
Construction, Inc,,
purpose
dated
for
“per-
judge
concluded
definition
framing aspect of a
completing the
condo-
son” found in
project.
Under
minium construction
(1978 Replacement),
was
to
1—§
was
agreement,
Smith
to
terms of
Mr.
appellant
feels that this deter-
12-102.
paid
basis as each
square-footage
be
mination constitutes error as a matter of
buildings
completed. Mr. Smith’s
specific argu-
law. We will address his
Smith,
partner,
was un-
wife and
along
ments
with our conclusions below.
agreement.
of the oral
aware of
terms
1-12-102 embodies what is com-
Section
began, problems
after construction
Soon
Wyoming’s
monly referred to as
“dead
drinking
arose
to Mr.
excessive
due
Smith’s
part
diligence
his
and that
and a lack
on
against
“In an action or suit
of his crew. Mr. Federer
numerous
person
incapable
who from
cause is
situation,
to
attempts
improve
to
but
no
trustee,
testifying,
separated
had
from
avail. Mr. Smith
been
executor, administrator,
rep-
heir or other
had
about this time and
been .heard
wife
incapable
person
resentative
say
to
was no further interest for
that there
testifying,
judgment or decree found-
early
him
June of
in this life. Sometime
testimony shall
ed on uncorroborated
be
1979 he committed suicide.
in favor of
whose inter-
rendered
problems,
Due to
Consolidated was
these
incapable
person
are adverse
ests
parties complete
other
forced
trustee, executor,
testifying
or his
ad-
project.
ministrator,
representative.
heir
up
process winding
partner-
In
suit,
if
the adverse
such action
affairs,
ship
brought
Mrs.
an action
testifies, all
memorandum
on behalf of Hometown Builders to recover
incapable
and declarations
quantum
per-
meruit
for the services
capable,
he was
made while
issue,
and crew
until
may
formed
her husband
matter in
relevant
(Emphasis added.)
his death. Consolidated filed a counter-
in evidence.”
received
alleged
claim in this suit which
that Home-
the statute was
Appellant claims that
breach of
oral
had
town’s
apply
against a
only
to actions
intended
$9,000
approximately
pay
it to
more
caused
singular and that since this
in the
framing
for the
of the condominiums than
case involved a
pay
had
it
have had
would
applying its terms
judge erred in
the trial
formed under the contract.
“per-
to the definition
through reference
8-l-102(a)(vi), supra.
Con-
jury,
son” found
case was tried without
language from
27, 1981,
this claim on
judge issued a
solidated bases
January
the trial
infra,
2 of this
statute.”
See
W.S.1977,
p.
opinion.
what
embodies
as the “dead man’s
commonly
referred
County
plication
specific
our decision in Board of
Commis
or the
language,
con-
Ridenour,
Campbell
County
specific
statutory provision
sioners of
text of the
re-
There we said
quires
meaning. Clearly
not specify
did
otherwise with
“* * *
1-12-102, nor,
legislative
it
rules
the construc-
used in
that,
opinion,
specify
tion of statutes are no more than
our
does the context
other-
*3
and,
expressed by
foregoing
the
sec- wise.
envisioning
We have
trouble
that
tion,
applied
‘plainly
are not to be
when
protections
the
afforded
1-12-102 are
§
contrary
legisla-
intent
a partnership
well
as an
” 623
ture.’
P.2d at 1184.
individual. The facts of
case
bear this
out,
point
especially
partner
where one
is
appellant
claiming
the
Basically,
is
unaware
the
terms of an
plain
language 1-12-102
and
§
is
unam-
us,
later deceased. To
biguous
legislature
and that
intended
given
“person”
the construction
single
in that
to mean
the lower court to
statute
justifies
individual. He
1-12-102 follows the rules
§
this conclusion on
of construction
well-recognized rule of
this court
that
discussed above to the letter. Here the
plain
unambiguous,
where a statute is
and
language
both
clear
statutes is
and un-
go beyond
give
we cannot
terms to
ambiguous
its
it an
and as such we must reference
Hayes, Wyo.,
unintended effect.
Oroz
1-12-102 to the
§
definition
8-1-
§
(1979);
Braun,
P.2d
LoSasso v.
102(a)(vi), for that was the clear intent of
Thus,
clearly requires states: meaning: a different [*] [*] [*] [*] [*] [*] “Every person is competent to be a wit- except provided ness as otherwise “(vi) individual, ‘Person’ an includes these rules.” corporation, joint stock company other association or Appellant claims that since ” * * * entity, public private; (Em- view, party” makes “adverse added.) phasis person incompetent, deceased Rule 601 has superseded now the “dead man’s statute.” designed provide This gen- section agree. With this contention we cannot “person” eral definition of the term to be our view 1-12-102 applied does not make the Wyoming to all of the statutes “un- party” witness, legislature incompetent “adverse clearly specifies less the a differ- meaning clearly under the interpretation ent terms of statute or the con- party” clearly requires testify. the “adverse meaning.” text free forbidding Rather quoted passage, When we read this than deceased, might having add is and one a claim unambigu- also clear ous, legislature merely requires the obvious intent statute that such testi- “person” mony was to ap- cannot be the definition basis of ply superseded unless it is corroborated. See our appellant’s argu- Further conclusion is evi- supra. The denced Rule W.R.E. This rule ver- under old would be tenable ment 1-140, “dead our man’s sion of “From and after effective date of W.S.1957,2 clearly statute was because that rules, Wyoming these the sections of the one totally the designed to bar Statutes, 1957, as amended and recodified In that having a deceased. Wyo. in ch. S.L. hereinafter argue possible that it situation enumerated, be superseded, shall govern competency evidence now rules of such statutes and all laws in con- of a statute like the intention flict these rules fur- shall be of no version of the “dead statute” effect; ther force or However, as superseded. we have been has 1-138, “§ W.S. recodified § noted, geared is not already 1-12-102 W.S. 1957 *4 barring testimony. As McCormick toward 1-12-106, 1-143, W.S. recodified “§ § notes, provided that “A few states have 1957 W.S. testimony will may testify, but his survivor 1-12-201, 1-160, W.S. “§ recodified § judgment, a unless corrobo- support not ”* * * 1957 W.S. McCor- rated other evidence. 1-12-202, 1-161, “§ W.S. recodified § Evidence, (2nd p. 143 Ed. mick § 1957 W.S. 1972).3 type This of “dead 1-12-203, 1-162, W.S. recodified 1-12-102, “§ was enacted in re- like our 1957 W.S. surrounding sponse heavy to the criticism 1-12-303, recodi- W.S. “§§ barred the adverse the old statutes which 1-12-301 — 1-169, 1957 McCormick, fied W.S. testimony. supra §§ at parties’ 1-165 — 1-12-402, have that Rule recodi- 65. We determined W.S. “§§ 1-12-401 — 1-173, W.R.E., 1957 fied W.S. superseded has not §§ 1-170 — 1-140, W.S.1957, plied regard provided: character in without sued; parties sue or are which party testify shall where adverse “A not “6. or is founded on a If the claim defense guardian party a trustee either is the or party may testify that the book account a person, dumb insane or of deaf and or an book, a book of book account that it is is his person, or is executor child of a deceased original therein were entries administrator, or claims or defends or deceased, himself, person since or made a heir, legatee grantee, assignee, devisee or of the disinterested non-resident person, except: deceased compe- county; whereupon the shall be book subsequent to “1. To facts which occurred evidence; may be admit- tent and such book appointment guardian or of the trustee case, any regard to ted in evidence in without cases, and, person, in other subse- an insane quent proof by any competent parties, upon the witness; like decedent, grantor, as- to time the died; signor or testator die, testifying orally, party, “7. after If a proceeding “2. When action or relates may proved by party, on a be either agent, by evidence through to contract made case; op- whereupon the deceased, agent trial of the further person fies, testi- since and on the same may testify posite party ters; as to the same mat- may testify subject; party, having a inter- “3. If a one direct or die, deposition est, testify and his “8. If a or conversations transactions evidence, party may opposite may testify party, offered with another the latter conversations; competent testify to all matters therein. the same or transactions apply “Nothing shall in this section contained “4. If a evidence the conversa- offer death, causing party, opposite actions or or or actions tions latter admissions of deed, involving validity may concerning proceedings testify con- same admissions; codicil; plainly is or will and when a case versations spirit proceeding In an the reason and the last “5. action or within three contractor, sections, joint partner though adverse not within the a party with, testify letter, applied.” principles not transactions shall shall be strict their by, joint contractor admissions since thorough deceased, of “dead man’s 3. For a discussion the same were made Ray, general surviving partner Man’s presence see: Dead Stat- statutes” utes, (1963). contractor; joint 89 24 Ohio St. L.J. and this rule shall be 906 offered must be such that it would recodi- W.S. “§§ 1-12-501 — least, degree at 1-177, support, in some 1957 or tend W.S.
fied §§ 1-174 —
of the claim
some of the material
issues
1-140,
recodified §
W.S.
Ҥ
whose
are testified to
the witness
superseded.”
1957 and
An-
sought
to be corroborated.
evidence
were
specifies those statutes
This rule
notation,
re-
1018. The
A.L.R.2d
Wyoming
adoption
superseded
any
can occur from
quired corroboration
Evidence,
1-12-102 is not
and §
Rules of
legal
competent witness or
perceive
purview.
We
included within
A.L.R.2d at 1019.
source. 21
part
intent on
this as an obvious
1-
vitality of
to continue the
Although we have never had the
again, we
a rule of law. Once
12-102 as
opportunity
upon
to rule
the corroboration
language of a statute
look to the
many
must
requirement of
states
intent,
and if the
order to discern
statutes” have.
with similar “dead man’s
intent, we need not
clearly expresses that
although
such
is New Mexico and
One
state
Hayes, supra;
v.
any further. Oroz
look
they
repealed
their dead man’s stat
Stores, Inc., Wyo.,
Safeway
ute,
Johnson
1-12-
since it was so similar to our §
Wyoming Rules of
persuasive.
their case law
consider
course act in
as a matter of
Wanek,
Evidence do not
81 N.M.
468 P.2d
In Wallace v.
1-12-
way
supersede the effect of
(1970),
prove a
plaintiff
tried to
wrongfully using
deceased for
*5
loan, by
plaintiff’s car as collateral for a
his
THE
DID THE APPELLANT SATISFY
testimony alone. There the New Mex
own
REQUIREMENT
CORROBORATION
plaintiff’s
Appeals held that
ico Court of
1977?
OF
argument
testimony
that his
was corrobo
1-12-
major requirement of §
deceased’s
rated due to a failure of the
testifies,
adverse
as
102 is that if the
contrary
was not
produce
estate to
evidence
case,
this
then in order for a
was done in
valid since the burden of corroboration is on
favor,
to lie in his
the adverse
the adverse
who is
and not
testimony.
Suc
must corroborate
representatives.
on the deceased’s
468 P.2d
stated,
question
cinctly
now becomes
plaintiff’s testimony
in
at 881. The
alone
testimony Mr. Federer of
whether the
amount
corroboration
that case did not
itself,
was,
cor
sufficient
Consolidated
under the New Mexico “dead man’s stat
support
in
of the counterclaim.
roboration
case,
ute.” In another
opinion found
judge in his letter
The trial
plaintiff’s
of New Mexico held that
intro
not,
agree.
we
that it was
and
profit
testimony
sheets
duction
and
produced in favor of
only
persons
charge
compiling company
evidence
the testi-
enough
plain
counterclaim was
Consolidated’s
records was
to corroborate
Federer,
appellant’s presi-
mony
agreement
of Mr.
with
tiff’s claim on an oral
testified,
objec-
Gruschus,
the trial he
over
dent. At
the deceased. Lee v.
77 N.M.
tion,
164,
(1966).
various terms of the
Q07 If the “person” from other word in the corroboration can come statute does pra, witnesses, legal competent or other sources not include a the statute deeds, records, reports. applied should not be to this case inasmuch such as “by as the action then would not be present in the case Consolidated Since person” required by as such stat- produce any evidence other than failed to ute. testimony in to its Mr. Federer’s relation applied But the should not section agreement, under an the terms oral case, the facts even of this if the word admittedly which were unknown to Mrs. “person” part- does the statute include Smith, we hold that Consolidated failed nership, partnership entity inasmuch as requisite required produce the corroboration testifying” not “incapable the stat- applicability. ute conditions holding also Consistent with this agrees The majority opinion with the expressly we set under overrule the test analysis court of the trial which results our old “dead man’s statute” Wilson “person” the determination that the word Martinez, (1956), 301 P.2d statute is utilized in the defined with designed to since that statute was exclude reference to witnesses, and we have so, partnership. part- and includes a If already held in case that 1-12-102 nership had Frank Smith Barbara away approach. The test does such partners, and either them one of is now one of corroboration rather than one testify for and legally could on behalf of competency. partnership. Since Frank Affirmed. dead, actually testify, he but could so and can do is alive so. ROONEY, Justice, dissenting, with whom any partner “Notice matter RAPER, joins. Justice relating affairs, and the I would hold that the trial court did err knowledge partner acting in the by applying as matter law matter, particular acquired while a *6 (hereinafter referred to “the W.S.19771 mind, present ner or then and the statute”), of this case. Accord- facts knowledge any other who rea- ingly, I would reverse and remand the case sonably and should communi- could for a new trial. acting partner, operate cated it knowledge of notice to or partner- This action instituted was except in the case of a fraud on against judg- ship appellant. by partnership committed or with partnership ment was in favor of a partner.” consent of that 17—13— Section Appellant’s quantum meruit count. coun- 304, W.S.1977. against partnership was and was terclaim by representation made alleged part- contract with a “An admission or based on any partner concerning partnership af- nership. 1. Section who “In administrator, ing, ment testimony party whose son ecutor, verse ative. dum and declarations any incapable person incapable of or from In administrator, action or suit decree founded any shall be rendered or interests are testifies, heir or other such action cause is testifying or his W.S.1977 heir or by all incapable testifying, or adverse to the on uncorroborated trustee, executor, representative of against provides: party incapable suit, trustee, favor memoran- represent- if the ad- testify- judg- of a ex- vant to the matter in evidence.” lature interpretation or the context “(a) ship, corporation, joint other association vate.” “(vi) As ‘Person’ [*] clearly specifies used in the meaning: [*] includes while he [*] statutes issue, may entity, stock different [*] individual, company clearly requires public [*] capable, be received meaning partner- [*] legis- rele- pri- scope authority of his fairs within the WALTON, Appellant Donald C. act 17-13-101 to conferred [§§ (Plaintiff), part- is evidence 17-13-615] nership.” W.S.1977. Section entity existence partnership was in INC., Corporation, TEXASGULF, a Texas although part- purposes of this case (Defendant). Appellee by the death of Frank nership was dissolved Wyoming. 17-13-603(a)(iv), W.S.1977. Smith. Section 9, 1981. Oct. partnership is not ter- “On dissolution minated, winding but continues until the completed.” affairs is 17-13-602, W.S.1977.
Section actually
Whether or not Frank Smith to Barbara the details
communicated arrangement partnership’s appli-
pellant pertinent is not insofar as the
cability of the statute to this case is con- “reasonably He could and should
cerned.
have” done so. Section
1977,supra. testimony or not the Whether alleged appellant’s officer relative to the sufficiently
oral contract is corroborated performance by partial
the fact of
nership arrangement under some
timely performance payment for simi- past perti- is likewise not
lar work in to this
nent if the statute is
case. We should not underestimate the
ability jury acting or of the court as a the true circum-
fact finder determine proper
stances of the matter with allow- missing
ances for the of one of partners appellee. allowing appellant’s officer and of Bar- having
bara and of others informa- *7 issues,
tion there will no material
longer inconsistency be an between allow-
ing recovery against appellant quan- resulting
tum meruit claim from work
formed under some sort of an under-
standing denying while consideration of
pellant’s arising counterclaim out of the understanding.
same