Enderlien v. Kulaas

| N.D. | Mar 29, 1913

Lead Opinion

Spalding, Oh. J.

1. The notice of appeal is entitled, “E. W. Enderlien, plaintiff, v. Kari Kulaas, defendant,” and it is claimed that this defective designation of the plaintiffs renders the notice invalid for all purposes. Enderlien was one of the copartners in the plaintiff firm. The notice in all other respects sufficiently described the action in which the appeal was taken to identify it, and we think this was sufficient. The respondent could have been misled in no manner by which the defective designation of the plaintiffs.

2. The same defect and others appear in the undertaking on appeal, but appellant made application in this court for leave to substitute a new and correct undertaking, and under the decision in Burger v. Sinclair, 24 N.D. 326" court="N.D." date_filed="1912-11-20" href="https://app.midpage.ai/document/burger-v-sinclair-6736848?utm_source=webapp" opinion_id="6736848">24 N. D. 326, 140 N. W. 235, we must allow this new undertaking to be filed in place of the original.

3. The notice of appeal reads that it is taken from the judgment rendered in the action on the 22d day of December, 1910, and from the order of the court .dated the 21st day of December, 1910, whereby judgment was given in favor of the plaintiff and against the defendant, etc. And it is alleged by respondent that the order is not appealable, and that the appeal is duplicitous. There is nothing in this contention. The order is reviewable on an appeal from the judgment, and is not an appealable one, and the notice amounts to an appeal from the judgment only.

4. The answer of defendant admits her indebtedness to the extent of $85.67, and offers judgment for that amount. The main question to be considered is whether there is any evidence in the record to sustain the finding of the jury that the contract was mutually abandoned. The evidence is set out at considerable length, and it would serve no useful purpose to review it in full; but we think there is sufficient evidence of the abandonment of the contract by the parties to sustain the finding, and that for this reason the judgment notwithstanding the verdict, for a greater amount than the verdict, was erroneous. The defendant testifies that she directed the workmen to cease working on the job, after learning of the new sewer and watermain, and that she called repeatedly to see the plaintiffs on the subject of a new contract, and that they were unable to get together on any change; and she testifies that one of the firm agreed with her suggestions that the old contract was not any good, and said he would make out a new contract, but that when she saw him he did not have time to do it; and that she did not have time to wait for them longer, and got somebody else to do the job. She testified expressly that she asked him to write out a new contract; that when she asked for a new contract he was so busy all the time that he could not make it; that she was there pretty near every day for a week; that she told them that she wanted to know how much she had to pay, because their contract was out of the way; that she asked for the bill four times, and that on the fourth occasion he told her, “You will get that some day;” that she never got a bill from him, and the first thing she knew of the amount was when the suit was brought; that he offered to throw off $75, which she declined to accept; that he told her he would return another contract.

Plaintiffs admitted, in their testimony, that she told them that she did not want them to continue the work, and told them to discontinue it, and that they did discontinue it, and that possibly she told them to stop any further work until they “had made an agreement as to what she was going to pay us for the job;” and one of the plaintiffs testified, on direct examination, that they did not have an agreement with her after they abandoned that contract. We think this is sufficient to sustain the finding of the jury. Of course there was evidence more or less in conflict with this; and it is possible that, if we were to find the facts on the whole record, we should not make the findings made by the jury; but that is not the criterion in this case. The question is whether there was evidence to sustain their findings, and from the tenor of the testimony as a whole we think the jury might properly have found that the plaintiffs gave her to understand, or permitted her to understand, that they did not expect to proceed with the work unless a new contract was entered into, or a modification made of the old one.

5. Error is assigned on the overruling and sustaining of certain objections to questions propounded witnesses, all relating to the subject of the cost of completing the job as contracted for and the profit on it, and as to the difference in distances, etc. They all were intended to aid the jury in arriving at the measure of damages under the second cause of action set out in the complaint, and we think the rulings of the court in each instance were correct. Such evidence was admissible under the complaint, and the one question to which an objection was sustained called for a reason of the witness, and if erroneous was not of sufficient importance to notice.

The order of the trial court was erroneous, and the judgment is reversed; and that court is directed to enter a judgment in accordance with the verdict. Respondents will recover costs in the lower court to the time when the answer was served; appellant will recover her costs on all subsequent proceedings.

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Rehearing

On Petition for Rehearing.

Spalding, Ch. J.

We are confronted with a petition for rehearing in which the plaintiff makes very emphatic assertions and a most strenuous appeal to the court to recede from its decision. We appreciate the fact that defeated counsel, particularly when he acts for the plaintiff and litigation is instituted in reliance on his advice, may feel disappointment and even chagrin at defeat, but the judgment of counsel is not infallible any more than that of a court. There must be some final arbiter on litigated questions, and this court has been created to serve in that capacity. Its judgment may be no more enlightened or sound than that of the counsel in any case, but, whether its conclusions are right or wrong, it is the duty of its members to exercise their own judgment, after all necessary investigation and consideration of the arguments and authorities presented by counsel, and to pronounce such judgment in accordance with its most intelligent convictions. Counsel for plaintiff in any case brings his action upon the facts as stated to him by his client. When the action is brought, counsel seldom knows what testimony the defense may offer. The evidence submitted by the defendant may often surprise counsel for plaintiff and the result disappoint him, but courts must take into consideration both the case and the defense. We feel that counsel is a little hypercritical in his criticisms of the opinion. For instance, he criticizes it because therein it is stated that the houses in which the work was being done faced north. It is wholly immaterial which way they faced, but the court construed a plat contained in the abstract as showing that they faced north. We, however, accept counsel’s statement that they face east. The only object in referring to the direction was to make the situation clear to the reader. We cannot restrain the feeling that counsel’s petition would be more properly addressed to this court in a suit in equity wherein the issues are tried de novo. He seems to assume that we are to review the evidence and find the facts.

Certain principles are so elementary in the consideration of motions for a directed verdict and for judgment non obstante veredicto that we did not deem it necessary to call attention to them in the original opinion. Among them this will be recognized, that in such consideration the evidence must be construed most strongly against the party in whose favor the verdict or judgment is directed, or, as some courts put it, the testimony of the opposite party must be taken as true. When this rule is applied to the' instant case we only have to determine whether there is substantial evidence to sustain the verdict returned by the. jury. Anri we still hold to the belief that, while there is a conflict in the evidence, there is substantial evidence, or enough evidence, to sustain the verdict. We do not say that if we were sitting on this case as jurors we should find the same facts that the trial jury found. Without having seen the witnesses or heard them testify, we are disposed to think that we should find the contrary, but that is neither here nor there. It was the province of the jury to pass upon the facts, so long as a conflict existed.

It is also elementary that parties could, by mutual agreement, abandon a contract before it was performed, or after partial performance. Of course, when partially performed the contractor may recover for the work done, in the absence of an agreement to the contrary. It is equally elementary that parties, by their actions or by their failure to act or by their silence, may lend their assent to a proposition of another and thereby abrogate a contract or the unperformed part. 2 Parsons, Contr. 678. In the case at bar it is a matter of indifference whether there was an express agreement that the contract be abandoned, or the plaintiffs, by their conduct and their silence, assented to the statement made to them by defendant that the contract was abrogated, or words to that effect, and with knowledge that she intended to have the job completed by others, as she told them, permitted her to incur new obligations without making known to her that they intended to hold her to their original contract. It is equally immaterial whether it was a question of a total abandonment of the contract, or an agreement that, in its original form, it was abandoned, that they might thereafter agree on a new contract changing the old one in certain respects; namely, the place of connecting with the sewer and waterworks and the amount of the consideration to be paid. If it was the former, that ended it; if it was the latter, the original contract was in effect abandoned, and no agreement reached as to the terms of a new one. The result is the same in either case. On the question of consideration, see 1 Page on Contracts, § 317. Cases in which a recovery for work done was contested are not in point. The mutual agreement of the parties constitutes the consideration. We do not consider it important what the reason for the silence of plaintiffs was when approached on numerous occasions with reference to a new agreement, and when requested to furnish a statement of the value of the work done and materials already furnished. It is disclosed by the evidence submitted by both parties that they were in fact silent; that when the defendant told one of the plaintiff firm that they should proceed no farther on the contract, and that she would get another party to do it, they in no manner gave her to understand that they expected to stand upon their contract, or that they did not accede to her statements. She visited them repeatedly, but they were always too busy to give her a statement, and never agreed on the new consideration for the work. It may be added that there never was a formal contract reduced to writing. The plaintiff submitted specifications stating the price at which they would do the work. The defendant orally accepted their offer at a reduced price, so the only writing between the parties and governing them originally was the specifications. Malone v. Philadelphia & R. R. Co. 157 Pa. 430, 27 Atl. 756 ; Adams v. Boston Iron Co. 10 Gray, 495.

In addition to extracts of the evidence set out in our original opinion, we give the following excerpts:

Mrs. Kulaas testified:

“I met Mr. Enderlien first, and I talked to him about that and he said he didn’t know, but would make out the papers; and I went in to Mr. Wiley, and he said he would make it out; that he didn’t have any time; and I went in there every day for a week for to make up the contract, and he promised to make up the contract every day.”

“I went down to Mr. Wiley and saw him about it, and he told me he would return another contract.”

“It was after that I had a talk with Mr. Wiley about this change in the contract, and he promised another one. I went down, and he said he didn’t have any time to make out the contract, and I went down there a week, every second day through a week, and he said the same, —he didn’t have time to write out a contract; and the last time I was down there and he say I got a letter down to the postoffice and that letter told all about it. After I got that letter I went in and told (asked) them how much my bill was. I want to pay them, and he told me he would fix me. After that I went in four times and asked for the bill. I was there four times, and he said, the fourth time, ‘Oh, you will get that some days.’ I never got a bill from him.” “The first I knew what the amount was they was going to charge me was when they sued me.”

“Three or four times I talked about it, and he promised the contract, and he didn’t have time every time I come down and wanted to see how much he wanted, and he didn’t have time to make it out, and he had the work done, and I had to have the work done because I had the carpenters at home and the work had to be done.”

“He didn’t say, ‘no,’ and he didn’t say, ‘yes,’ and I went and asked him for a new contract, and he promised to write one, and he all the time was so busy, and he couldn’t do it. I went in every day, pretty near a week. I was in many times after the contract, after the city put in the sewer,— that is what I mean.

“I told him the first contract wasn’t any good, and it isn’t. . . . I told him the contract wasn’t any good, — it doesn’t make ány difference then. He agreed with me the first contract wasn’t any good. . . . As to what the other contract was we never agreed. . . . Then I went and got somebody else to get the job, because I couldn’t wait for them. They didn’t have time to do the work.

“Before I let the contract to somebody else, and after I had got that letter, I went down and asked him how much the bill was, and told him I was ready to pay. I was there many times, and wanted to know what my bill was.”

One of the plaintiffs testified':

“We didn’t make any agreement as to what the difference in price should be, but we did agree there was going to be a change from the original contract if they run the city sewer by there. They did run the city sower by there.”

“We never submitted any figure that would reduce the price, and she didn’t say anything to us in regard to it, only she wanted to figure, and I told her we would give her a figure, and we was busy and didn’t do it.”

Another plaintiff testified:

“She may have said something to the effect that we were not to do anything until we had agreed about what she was going to pay us. I don’t remember her exact statement.”

“She hinted that she was going to get other bids.”

A rehearing is denied.