205 P. 310 | Wyo. | 1922
Lead Opinion
The parties will be herein referred to in the same order as in the court below. Finley, the plaintiff, brought an action against the defendant Pew to recover a balance of $6478.93, claimed to be due on account for certain labor and material furnished and money paid or advanced in connection with the erection of the Vocational High School building at Lander. Pew was the original contractor. There was a written contract between the parties, reading as follows:
“Lander, Wyoming, August 9th, 1918.
“ARTICLES OF AGREEMENT”
“Between C. H. Finley, party of the first part, and Geo. II. Pew, party of the second part.
“The party of the first part agrees to do the following work on the Lander Vocational High School in a good workmanlike manner, for the consideration hereinafter*350 mentioned. Party of the first part to make and burn all common brick necessary for said building. Party of the first part to furnish labor only, party of the second part to furnish brick plant.
“Party of the first part to lay all brick, common and face, and furnish all labor, lime, sand, and color for mortar. And to clean down all outside brick work, finish all lintels and sills and leave the building neat and clean from top to bottom, and furnish Medusa cement for finish. Do all plastering and furnish all labor and material, including all metal corner beads and put on all cement bases. To furnish mold and run plaster cornice in vestibule and stairway. Plaster and panel four columns in hall. All work to be according to plans and specifications for the lump sum of Eighteen Thousand two hundred dollars ($18,200.00). To be paid as follows: — Party of the first part to do one thousand dollars ($1000.00) worth of work, pay for same and to furnish legal evidence that he has paid for same.
“The party of the second part to pay nine hundred dollars ($900.00). This part to extend all the way through the contract. Party of the first part to do all excavating for the sum of eighty cents (.80) per cubic yard.
“Party of the second part guarantees the following prices F. O. B. building site: Stucco at $18.00 per ton, Metal Corner Beads at 13c per foot, Lath at $7.50 per M.
(Signed) C. H. Finley.
(Signed) Geo. H. Pew.”
The court below gave judgment to the plaintiff for the sum of $2100.29. Defendant brings this case here by direct appeal. Plaintiff, after the defendant appealed, instituted the second case here (No. 1013), by petition in error, also complaining of the judgment. Counsel for defendant thereupon filed herein their plea in abatement, claiming that plaintiff should have filed cross-errors in the direct appeal case, and that the case cannot be brought here by plaintiff by petition in error after defendant has instituted his proceedings of direct appeal. Subject to our ruling on that
1. The plea in abatement must be overruled. Section 6415 of the Wyoming Comp. Statutes 1920 provides that the provisions relating to direct appeal are:
“a separate and independent method of reviewing civil and criminal causes in the Supreme Court, in addition to the provisions of law of this state now in existence — -and nothing herein contained shall be construed as modifying, changing, amending, altering or repealing any of the provisions of the existing laws of this state relating to proceedings in error.”
We think that the statute preserves to a party the right to bring an action here by petition in error, although the other party to the case comes up here by direct appeal. No method of assigning cross-errors is provided by the direct appeal statute. Hence where one party has sought review of the ease by direct appeal, then the other party, if compelled, as contended by counsel for defendant, to seek review of errors complained of by him in the same proceeding, must serve notice of appeal and file specifications of error the same as his opponent. But grave injustice might in such case often result, since one party, by serving his notice of appeal at the last moment, might prevent his unprepared opponent wdio intended to come here by petition in error, from serving any such notice within the time provided by law, and thus deprive him of the right of having the errors of which he complains reviewed. The question is not new, and has been considered in Harding v. Larkin, 41 Ill. 413; Page v. People, 99 Ill. 418. A full discussion of the subject will be found in Armijo v. Neher, 11 N. M. 354, 68 Pac. 914. In all these cases the holding of the court is contrary to the contention of counsel for defendant.
2. The contract, as will be noted, provides that “Party of the first part to do one thousand dollars worth of work, pay for same and furnish legal evidence that he has paid for same. The party of the second part to pay $900. This part to extend all the way through the contract. ’ ’ Counsel
3. The defendant took exceptions to certain of the findings of the court and the conclusions of law, and did not except to the judgment rendered thereon and counsel for plaintiff contend that for that reason the defendant has no standing in this court. That question, has, however, been settled contrary to the contention of plaintiff in the case of Nichols v. Board, 13 Wyo. 1; 76 Pac 681; 3 Ann. Cas. 543, holding that an exception to a final judgment is not necessary, the exceptions to the rulings on the trial and the findings complained of being sufficient.
4. Defendant complains of the admission of the deposition of the witness Henry Tietjen, on the ground that no sufficient notice of the taking of the deposition had been given him. No exception to this effect had been filed before the trial, but counsel for defendant contend that since they appeared specially at the time of taking the deposition, and the exception was then made and appears on the face of the deposition, it was not necessary to file separate exceptions. We need not go into that question. The witness merely testified that the defendant had admitted to him that he would pay half of the rebuilding of some piers. The defendant himself admitted that he agreed to pay half of the cost, which would be from $30.00 to $50.00. There is testimony in the record that the cost was greater, but the court only allowed the plaintiff $25.00, an amount within the testimony of the defendant
5. At the time of the commeneement of the action, a writ of attachment was issued in the ease, and certain money garnished in the hands of garnishees. The defendant before pleading to the petition filed in the case, appeared and filed a motion to dissolve the attachment. Counsel for defendant contend that there are several reasons why the motion to dissolve the attachment should have been sustained. One reason given is that the plaintiff had the burden of proving the ground for attachment, but that he has failed to do so. The lower court, however, passed on the weight of the evidence submitted on this issue; there is ample testimony to sustain its finding thereon, and we are unable to say that its conclusion thereon is wrong. Again, counsel argue that the motion should have been sustained for the reason that the writ cannot issue except at or after the commeneement of the action; that an action cannot be said to have been commenced until a petition is filed stating a cause of action; that in this case the petition failed to state a cause of action and hence there was nothing to support the attachment. While that part of the petition wherein plaintiff sought recovery upon a quantum meruit was not sufficient to authorize a recovery, we do not believe that the petition as a whole, wherein recovery was also sought upon the contract, was demurrable. Even if, however, it was insufficient to. withstand a demurrer, the conclusion drawn by counsel does not follow. Oür statute evidently does not contemplate that it is absolutely essential for a valid commeneement of an action that the petition must not' be demurrable, for section 5709 of the Wyo. Comp. Stat. 1920 provides that if a demurrer is sustained the adverse party may amend, if the defect can be remedied by amendment, without.providing that in such ease another summons must issue. Hence, though a petition is subject to a demurrer, that fact does not necessarily render the attachment void. (6
6. Counsel further claim that the petition was not capable of amendment. According to Section 5707 of our statute an amendment may be made if the latter does not change substantially the claim or defense, and the tests sometimes applied as to whether it does or not are, first, whether the same evidence will support both pleadings; second, whether the same measure of damages is applicable in both cases; and, third, whether a recovery on the amended pleading will operate to bar a recovery upon the other. (Kirchner v. Smith, 28 O. C. C. Rep. 45; see 31 Cyc. 417, 418.) We think that all these'tests are fully satisfied in the case at bar. The original petition alleges that on August 19, 1918, plaintiff entered into a written contract, copy of which is attached,
“By the terms of which contract, plaintiff was to perform certain things therein enumerated on the construction of the Vocational High School building in Lander, Wyoming, at an agreed price stated in said contact. * * * The plaintiff has performed his part * * * and in addition*355 has performed certain extra labor * * * and has furnished certain materials and advanced certain money for the benefit of the defendant in connection with the construction of the said building.”
And then plaintiff alleges that the whole sum, including extra labor, material, and money furnished amounts to $25,376.93; that defendant is entitled to a credit of $17,-870.00; that the balance is unpaid and judgment is demanded therefor. An itemized statement is attached. In the amended petition the plaintiff fully sets out and claims upon the above original contract, claims the same amount, gives the same credits and asks judgment for the same amount, as in the original petition. The itemized statement for extra labor, material and money furnished is embodied in, and claimed upon, in the amended petition, and plaintiff in part further alleges that after he entered upon the performance of his work, defendant was gone a good deal, which hindered and delayed the work of plaintiff, and
“That thereupon the plaintiff and defendant mutually agreed to extend and enlarge the duties of the plaintiff under the said agreement, and it was agreed that the plaintiff should perform other work, furnish material and expend money and do certain things in and about the construction of said building as might be required by the defendant. * * * That the defendant from time to time, consulted with the plaintiff and directed other worlr as he should perform under the said modified agreement, and that the plaintiff from time to time, consulted the defendant about the work and advised him as to the extra work done, material furnished and the costs and value thereof, and as to the amounts of money expended by him for the benefit of the defendant, all of which was reasonable, satisfactory to the defendant and was approved by him, and the prices charged therefor were reasonable and just.”
Plaintiff further alleges that defendant agreed to pay for such work and expenditures and that said extra work
7. Counsel for defendant claim that the court should have. dissolved the attachment, because it appears that defendant was not given credit for certain items, and that, therefore, the affidavit of attachment is shown to be false. The mere fact, however, that the plaintiff recovers a less amount than claimed is not of itself sufficient to show that the attachment should have been dissolved, or that the court erred in refusing to dissolve it. (6 C. J. 429.) The facts upon which a less amount than plaintiff claimed were awarded to him by the judgment were shown upon the trial of the ease and not upon the hearing of the motion to dissolve. In E. B. Williams & Co. v. Lumber Co., 105 La. 99, 29 So. 491, the court said:
“Defendant urges that the amount of the judgment of the district court was so much less than the amount of plaintiff’s claim that, if this court affirms the judgment, the attachment should be dissolved, as it would be evident that plaintiff was greatly mistaken in its affidavit. If one, in good faith, sue for the violation of a contract, and claims a larger amount than is afterwards decreed by the court to„be due, the accompanying attachment should be held good for the amount so decreed as due. The mere fact that plaintiff claimed too much, if claimed in good faith, is not to be taken as ground sufficient to dissolve the attachment and perhaps prevent him from recovering the claim due.”
8. It will be further noticed that plaintiff, in his amended petition, alleges that in addition to the duties under the original contract, he, by oral agreement with defendant, was to perform other work and furnish material and money as might be required by the defendant. An itemized statement showing just what was done and when, and the amount, is set out in detail. Counsel for defendant claim that no sufficient facts are pleaded in connection with the oral contract to constitute a cause of action. At the time that the oral agreement was made, it was, of course, uncertain just what might be required. It would have been practically impossible, as we conceive, for plaintiff to have set out the agreement in greater detail, since by reason of the very nature of an agreement of that kind, details could probably not have been given. Nor do counsel for defendant, though claiming that more facts should have been alleged, even suggest as to what additional facts might or could have been set forth. Counsel say that these matters were not proper items for an account. But, we think, they are clearly in error on this. (1 C. J. 674.) And the fact that, as in this case, the items of the account were furnished under a special arrangement, would not altar that fact. (Ballou v. Casey, 60 Tex. 573; Moore v.
9. Defendant by way of counterclaim set up that he was entitled to the sum of $3218.90 from the plaintiff, claiming that he was compelled to purchase 180,000 of common brick, which the plaintiff had failed to burn in accordance with the original contract. Plaintiff, in reply, alleged that these bricks were bought by the defendant pursuant to a collateral agreement, made after the original contract was entered into; that by the terms of such collateral agreement defendant was to buy these 180,000 bricks, and that plaintiff was thereafter to burn an equal amount and turn these over to defendant in payment thereof; that plaintiff carried out his agreement and the defendant accepted the bricks so burned in. full satisfaction. Defendant then moved that these allegations of plaintiff be stricken out on the ground that they constituted a departure from the petition. This claim of defendant was clearly wrong. Defendant, in order to establish a basis in this action for the recovery of this $3218.90 was of necessity constrained to plead his expenditure of this sum. (Larsen v. Anderson, 122 Minn. 39, 141 N. W. 847; Farmer’s Trader’s Nat. Bank v. Hunter, 35 Or. 188, 57 Pac. 424. See Lee Bros. & Greer v. Glenn, (S. C.) 99 S. E. 757.) Plaintiff was not compelled to leave this claim uncontested. It was not only proper, but he was, in view of the state of the pleadings, compelled to file a reply, in case he did not want to allow the amount to defendant pro confesso. The motion to strike made by defendant seems not to have been acted upon by the court, but four days after the filing
‘ ‘ The respondent contends that, under such plea,. evidence is admissible which shows the .delivery of personal property, if it appears that at the time such property was delivered it was received as payment of the demand. The modern authorities establish the law to be as contended for by the respondent; but in all of them it is held that a general plea of payment cannot be sustained by evidence of the delivery to the claimant of anything other than*361 money, unless it clearly appears that it was accepted and applied by the claimant in payment of the demand. ’ ’
In McLaughlin v. Webster, supra, the court said:
“But the defendants had pleaded payment generally, and under that defense were entitled to give proof of any agreement between the parties in the life time of the testator that operated to discharge the debt. It is not necessary generally to state the particular manner in which the obligation was extinguished. ’ ’
So, too, in the case of Bank v. Sherman, supra, an agreement was held admissible under such general plea of payment. We think that the evidence in this case comes within the rules announced by these decisions. It is, therefore, unnecessary to determine the propriety of permitting the plaintiff to amend his petition, after the trial, in order to conform the pleadings to the proof, which was done in this case. We think, further, that the finding of the court on the issue here involved is sustained by the evidence.
10. We shall now proceed to the contention of defendant that while performance was pleaded, the evidence fails to show it. The item of $3218.90 above mentioned will again be considered in connection with this subject. The court found that the plaintiff had substantially performed the original contract. Substantial performance, on the part of the plaintiff, was all that was necessary, (9 C. S. 739), and such finding would be supported by a pleading of full performance. (Blakely v. Lumber Co., 121 Minn. 280; 141 N. W. 179; Rowe v. Gerry, 112 App. Div. 358, 98 N. Y. S. 380, 180 N. Y. 625, 81 N. E. 1175; Roberts v. Sinnott (Mont.) 177 Pac. 252; Joseph Musto, etc., v. Pacific States Corporation (Cal. App.) 192 Pac. 138; Omaha Water Co. v. Omaha, 156 Fed. 922; City of St. Charles v. Stockley, 154 Fed. 772, 85 C. C. A. 494.) The question therefore arises as to whether the finding of the court is sustained by the evidence and the record. Not a great deal of proof is found on this subject in the record. It appears, however, that the building was completed. The evidence shows that the
“The appellant contends that this question should not be considered because no waiver is pleaded, but we think the pleading sufficient to fairly present the question. It will be remembered that the appellant made no specific objection to the manner of the plaintiff’s performance of the contract in its answer proper, and that the specific complaints were first made in its counter-claim. To this the*364 plaintiff replied, pleading a waiver as to such matters. This we think sufficient to present the question. ’ ’
And there is another aspect to this point. The collateral agreement, in a sense, of course, constituted a modification of the original contract, but in another sense it was distinct and independent, not intended whatever to affect the original contract. Plaintiff was not compelled to prove performance directly. That may be shown by evidence which in effect is the equivalent thereof, or by proof of facts which have been expressly or impliedly agreed upon as tantamount thereto. (Clement v. Didier March Co., 244 Pa. 616, 90 Atl. 927.) Thus, performance by the contractor is held to be shown though the building is completed by the owner, where the latter has the right under the original contract to complete it, in case the contractor fails to do so, (Hunn v. Institute, 221 Pa. 403, 70 Atl. 812, 18 L. R. A. (N. S.) 1248.) And it has been held that, though no waiver is pleaded, performance is shown, where the evidence discloses that the work was done under the supervision of the owner as directed, and that it was so done, accepted and partly paid for. (Hanenkratt v. Braogham, 164 Mo. App. 108, 147 S. W. 1129.) So performance may be shown to have been made by an agent. (Van Fleet v. Construction Co., 142 App. Div. 517, 127 N. Y. S. 19.) Quod faoit per aliwm, facit per se. Plaintiff had to see that the brick was furnished. He might do so through a friend, a neighbor, a stranger. Why not through the defendant himself? Certainly no good reason could be suggested against it. The collateral agreement, referred to, that the defendant should buy part of the brick could not have come into being unless the plaintiff was one of the parties to it. He, to the knowledge of both parties, had to furnish the brick, and the defendant, by consenting to buy a part thereof, evidently did nothing more than to do this for and on behalf of the plaintiff. In fact, the lower court, in holding that defendant was not entitled to any credit oil his counterclaim for the brick bought by him, could not logically escape the further conclusion that the plaintiff performed his con
11. ■ The original contract between the parties provides that, in connection with the burning of the common brick, Finley was to furnish the labor only and Pew was to furnish the brick plant. Nothing is mentioned as to repairs or other incidental things in connection with the plant, or as to who was to furnish the fuel. Inasmuch, however, as Finley was to furnish the labor only, we think it reasonable to hold that Pew was to furnish, under the contract, a plant which was operating, a working plant, including the fuel necessary for the operation. A number of items are claimed by plaintiff for money expended for repair, fuel, and other incidental things in connection with the brick plant while burning brick, including the 180,000 substituted for those purchased by defendant. These items were disallowed by the lower court, although the testimony of the plaintiff relating thereto is undisputed, except on an item of cotton. Counsel for defendant contend that no such claims are within the issues of the case. Plaintiff, as will be recalled, asked recovery for labor, material and money furnished for the benefit of defendant “in and about” the construction of the building. The phrase quoted is somewhat indefinite, but means about the same as “in connection with.” There were burnt, as we read the evidence, two kilns of brick. One of these was burnt during the construction of the school building, and the bricks therefrom were actually used therein. We think it clear, therefore, that the items of money expended in connection with the burning of this kiln, were expended “in or about” the construction of the building. Two items, however, arising in connection therewith are claimed by reason of a loss of
12. We come then to the items which should be allowed plaintiff in addition to those allowed by the lower court. There is claimed $107.50 for cotton yarn, but some of the
13. On the other hand, the testimony of plaintiff himself conclusively shows that he failed to give the defendant credit for a payment made to him on September 7th, 1918, for $600.00, and another item of $169.43. The court found the total cash payments made to be $18,308.40, or $438.40 more than the $17,870.00 admitted by the plaintiff. Counsel for defendant contend that the result of the court was arrived at by adding to the amount admitted the items of $100.00, $200.00, and $138.40. That contention seems to be correct, and the defendant should accordingly be allowed the additional sum of $769.43. This leaves the net amount by which the judgment herein should be increased at the
14. Plaintiff contends that inasmuch as the contract specifically provides that he was to furnish lime, sand and mortar, without including cement, he was, therefore, not responsible for not using the latter. Whether or not the term “cement” is strictly included within the former, is not important, for plaintiff was required to do his work according to the specifications which required the use of cement, and we think that the holding of the court on this point was right.
15. We have with laborious care gone over and examined the record as to each and every item covered by the findings of facts of the court. We cannot here set out the evidence touching each of these. We must.content ourselves by saying that we think that the findings of facts of the court below are correct, except only as modified herein. We have herein fully discussed the principal points raised in the briefs of counsel; those not discussed specifically, we deem either fully disposed of by the principles of law here stated, or not well taken. The judgment herein is, accordingly, modified by increasing the amount thereof from $2100.53 to the sum of $2472.33, and as so modified, the judgment is affirmed. An increase over that allowed in the court below having been herein allowed to each party upon his separate appeal, our order will provide for an equitable division of the costs.
Rehearing
Counsel for Pew have filed herein their petition for re-hearing_ based on the grounds, as stated in the brief, that the court erred:
1. In sustaining the finding of the trial court that plaintiff substantially performed the contract set out in his original petition.
2. In sustaining the order of the trial court allowing plaintiff to file his first and second amended petitions.
3. In sustaining the trial court in overruling certain objections made by defendant to evidence offered by plaintiff regarding the burning of the second kiln of brick.
4. In allowing plaintiff certain sums connected with the burning of the second kiln of brick.
Counsel are in error in thinking that the court passed on the question of the propriety of the filing of the second amended petition, as we held that it was unnecessary to pass on that point. In alleging the third error above mentioned, counsel refer to the admission of the evidence of the collateral agreement referred to in the original opinion under which Pew was to furnish certain bricks, to be subsequently replaced by Finley by burning a like number for Pew. With these explanations it is clear, when the original opinion herein is examined, that the points raised in the petition for rehearing have heretofore been fully and completely covered and thoroughly discussed, and while we commend counsel for their zeal in urging upon us the correctness of their views, we fear that to again discuss the points mentioned would but add to an already long opinion, and would but lead to repetition. No new authorities are cited, and nothing has been said in the briefs, or has occurred to us in the reconsideration of the points, to lead us to change our views heretofore expressed. We should, perhaps, add that counsel are wrong in assuming that the only evidence on the acceptance by Pew of
The petition for rehearing must be denied.
Rehearing Denied.