3 Wyo. 73 | Wyo. | 1883
In this case the defendant in error filed his motion to dismiss the writ of error, and supported it by a number of points, arguments, and authorities. The third point made .and insisted on is that the plaintiff in error did not file with the clerk of this court printed abstracts of the record at the time, in the manner, and in the form required by law. The statute of this territory provides that the rules of practice of this court shall be as binding upon the several courts, and the parties practicing and having business therein, as though the same were enactments of the legislative authority of this territory. One of the rules of this court requires “that the plaintiff in error shall deliver to the clerk 14 printed copies of an abstract of so much of the record as is necessary for a full understanding of all the questions presented to this court for decision,” and “if the defendant in error shall deem the abstract of the appellant or plaintiff in error imperfect, he may within twenty days after the delivery of said copies to the clerk deliver to the latter 14 printed copies of such farther or additional abstracts as he shall deem necessary to a full understanding of the questions presented to this court for decision.”
The abstract here made imDerative is
The supreme courts of Indiana, Illinois, Missouri, California, and other states often dismiss cases for similar violations of their rules. In the Buckley Cases, in 60 Ill. 252,thecoui’t say,among other things: “Appellant in each case has failed to prepare and file an abstract of the record, but there has been filed in each case a printed index to the transcript. We presume the attorney was aware of the rules of the court, and has intentionally disregarded them. As the cases have not been prepared as required by the rule, we decline to consider them, and affirm the judgments.” And so we should be obliged to dispose of this case had it not been continued with the express understanding that it should be heard and decided upon its merits.
The case is fairly stated by both parties, and is substantially as follows: The defendant in error brought an action against the plaintiffs in error upon a bond given by them to the defendant in error in the sum of $5,000, conditioned that if the firm of Dawson & Hawes, who were the principals in said bond, and who had made a contract with the defendant in error to erect, build, and complete a two-story brick building for him, should well and truly perform said contract in all things, according to the specifications, the bond should be void ; otherwise in force. The petition in the case alleged the making of said building contract, and the bond to secure the performance of the contract, and that said Dawson & Hawes proceeded to erect said building, but failed to comply with the terms of the contract under which the building was to be erected, in that they built the walls of the cellar of said building of half-burned casing brick, and laid up the Walls of the building with bank-sand mortar, whereas, by the terms of the contract, said cellar walls were to be built of arch hard-burned brick, and the walls were to be laid up with fresh lime and sharp-sand mortar. The petition further alleged that in consequence of the failure of said Dawson & Hawes to erect said building in the manner required by their contract in the particulars before stated, it fell down, and became entirely ruined, to the damage of the plaintiff $5,-000, for which he asks judgment. In due time Halleck Bros, made answer in the case, setting up six defenses. Dawson & Hawes were not served with process, and did not make any appearance in the case.
The defendants Halleck Bros, made, in substance, the following defenses:
(1) They admitted thq contract between Dawson & Hawes and the plaintiff in the action, Mr. Bresnalien, for the construction of the building, and also admitted the execution of the bond conditioned for the performance of the contract; they further admitted the allegations of the petition in respect to the character of the brick which were to be used in the construction of the cellar walls and the character of the mortar to be used in laying up the walls, as fixed by the terms of the building contract; they also admitted that Dawson & Hawes did construct the said building, but deny that they failed to comply with the terms of said building contract, in the respect set out in the petition; they admit that the building fell down, but deny that it fell in consequence of the failure of Dawson & Hawes to comply with the terms of their contract; they deny that any furniture or other property of the plaintiff was injured by the fall of the building.
(2) The second defense set up by the defendants is, in substance, that the plaintiff, when the building was in course of construction, made the payments therefor as provided by the contract, and when the building was completed that he accepted the same as completed under the contract, and remained in the same until it fell, without notice to Halleck Bros, of any objection on account of any supposed failure on the part of Dawson & Hawes to perform their contract. It is further al
(3) The third defense is substantially the same as the second, except that it is alleged that the plaintiff paid the several sums to be paid by him underthecontract, including the last payment, without insisting that said building was not completed according to the contract, although at the time of making the last payment, it is alleged, the plaintiff well knew of the defects in the building of which he complains in his petition,from which it is concluded that plaintiff accepted the building, and waived strict performance, etc.
(4) The fourth defense alleges that after the completion of the building, differences arose between Dawson & Hawes and the plaintiff as to the manner in which said contract had been performed, which were submitted to arbitration, pursuant to the contract, an award made thereon, and performed,from which it is concluded arid averred that there was an accord and satisfaction as to all such matters of difference in respect to the construction of said building.
(5) The fifth defense is, in substance, that at all times from the completion of the building until shortly before the commencement of this action the said Dawson & Hawes each were solvent, but since, and before the bringing of this action, be came insolvent; wherefore the defendants say that by virtue of the several acts of the plaintiff, as aforesaid, the defendants were led to suppose that plaintiff had waived or settled his objections to the want of strict perfoimance of the building contract, and that Halleck Bros; were thereby prevented from seeking their indemnity against said Dawson & Hawes before the accruing of their several insolvency.
(6) Halleck Bros., as a sixth defense, aver that after the making of said building contract, and during the construction of the building, the plaintiff, without the consent of Halleck Bros., agreed with Dawson & Hawes that the work of the construction of said building should be otherwise than as prescribed by the specifications of the contract, and that the building should not have been constructed until after the tenth of November, 1875, and that the building was constructed in a manner otherwise than according to1 the contract, and was not completed until after November 10, 1875, without the consent of the defendants Halleck Bros.
Upon the issues thus formed, the case came to trial in Albany county, where it had been taken by change of venue by Hal-leck Bros., and was tried by the court, without a jury, on the thirtieth and thirty-first' days of March and the first and second days of April, 1881. The plaintiff, to maintain the issues on his part, put in evidencethebond sued on and said building contract, and they were received without objection. The defendants Halleck Bros, then produced certain evidence. The plaintiff then furnished certain rebutting evidence. On the fourth day of August, 1881, the court announced and filed its decision, with findings of law and fact; to eacn and all of whiehjfindings, and the order for judgment thereon, the defendants excepted. Halleck Bros, then filed a motion for a new trial, on the fifth of August, 1881, setting forth 67 grounds therefor. Said motion for a new trial was overruled on the twenty-fourth day of August, 1881, to which Halleck Bros, excepted, and a bill of exceptions was allowed and signed on the said twenty-fourth day of August, 1881. At the February term, 1881, and on the second day of April of said term, an order was made and entered giving the parties until and including the first day of the next term of the court to reduce all exceptions to writing, which were taken on the trial of the cause. On the fourth day of August, 1881, the same day on which the findings and decisions of the court in the case were made aDd filed, judgment was entered in favor of Bresna-hen and against Halleck Bros, for $5,000.
In examining the mass of matter contained in this record, we find that the merits of the case maybe properly disposed of by deciding the questions involved in the motion to amend the answer, by adding what is called the seventh defense, and growing out of the alleged waiver of his rights under the bond sued by the defendant in error, as set forth in the second and third defenses. Upon the third day of the trial, and after the greater oart of the evidence had been
As to the alleged waiver, the district court found as a matter of fact that “the plaintiff neither excused nor waived a strict performance by Dawson & Hawes of the contract, nor induced the sureties to believe that he had so done or had waived, settled, or discharged any claim for the want of such performance.” The question upon this finding is not whether it is sustained by a preponderance of the evidence, but whether it is so much against the weight of the evidence as, on the first blush, to shock the sense of justice. While it is true that there is considerable evidence on the question in favor of the plaintiffs in error; it is also true that there is strong evidence on the other side. The testimony of the defendant in error hiihself is very decided and positive, and it'is sustained by part of the testimony of Durbin, and by other facts and circumstances in evidence. It is proved that he not only occupied the building for business, but that both he and his nephew slept in it from the time it was finished, and that they were lodging in it when it fell. These facts can hardly be reconciled with the belief that he knew how insecure the building was, owing to the bad materia] put in it by Dawson & Hawes. The testimony as to what was said and done by the parties, when Bresnahen objected to Dawson & Hawes putting poor brick in the building, and one of them promised him it should not be done, shows that he did not intend to waive his rights under the contract and bond. As to the bad mortar which, according to the testimony, more than the unsuitable brick, was the cause of the falling of the building, there is hut little evidence to show that he knew its true character till after the building fell. He says positively that he did not. When a man contracts to build a house upon the land of another, of suitable materials andina workmanlike manner, and violates his contract, either as to the work or materials, to the substantial injury of the other, the party injured may either refuse to pay the contract price of the building to the amount for which he is damaged, or he may pay for and take possession of the buildings, and then sue and recover of the builder the amount of his damages. And he can. recover whether he knew of the breach of contract by the other party at the time of payment or not. Inneithercaseisthere any waiver of his rights under the contract. Where there is a bond, as in this case, the only limit to his right to recover is the five .years prescribed by the statute of limitations. The theory of the plaintiffs in error seems to be that, though this may* be true of the principals, the sureties on the bond were released by the conduct of the defendant in error, and especially by his making the last payment and occupying the building without objection till it fell.
An examination of the testimony of E. F. Halleck, one of the sureties and plaintiffs in error, leads us to the conclusion that he must have known quite as much about the materials that went into this building as Bresnahen. He was an experienced builder, had built several houses in (Jheyenne, and knew what kind of materials were necessary to the erection of a good building there. He was there about the time this building was begun,
At the close of their argument upon the defense of waiver, plaintiffs in error claim, but do not very strongly insist, that defendant in error is estopped by his conduct from recovering in this action. But an estoppel cannot be founded upon words, or acts, or silence, unless they were intended to lead the party who seeks to set up the estoppel to act upon them, and he did act upon them, and act to his injury. In this case no estoppel is pleaded, and none is proved. Or, rather, if there be any estoppel in the case, plaintiffs in error are estopped by their quiet acquiescence inBresnahen’s making the final payment to Dawson & Hawes, and their prompt action in taking their share of the money. Had they objected to that payment they might, perhaps, have made out an estoppel pro tanto.
For reasons suggested, above, we decline going into any further discussion of this case. Before the close of the trial in this court the greater part of the errors assigned were either expressly or by implication abandoned. It is evident, from the argument upon the two principal defenses we have been considering, that plaintiffs in error relied principally upon them. Upon one of them, the defense of waiver, the argument was exceptionally lengthy, earnest, able, and determined. These two principal defenses are so far decisive of the case that plaintiffs in error would be entitled to a reversal of the judgment, if they had sustained either of them. On the other hand, failing in both, they could not succeed, for they invoke the entire defense. But, be that as it may, this court, after careful consideration of all the errors assigned' and insisted upon in argument, feels constrained to say that the court below committed, in the trial and decision reached in this case, no such error as can or ought to vitiate or reverse the judgment rendered below and now here under review.
The judgment of the district court, in overruling the motion for a new trial, is affirmed.